author: CLIFFORD H. AHRENS, Judge.

text:
    James SCOTT, et al., Plaintiffs/Appellants, v. RANCH ROY-L, INC., et al., Defendants/Respondents.
    No. ED 85787.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 6, 2005.

      Donald U. Beimdiek, Louis, MO, for appellants.
    JoAnn T. Sandifer, St. Louis, MO, Vincent L. Johnson, St. Peters, MO, for respondents.
   CLIFFORD H. AHRENS, Judge.

James Scott (“Scott”), John Kuhlmann (“Kuhlmann”), and the Golden Eagle Reserve Association (“the Association”), collectively referred to as “plaintiffs”, appeal from the trial court’s grant of summary judgment in favor of Ranch Roy-L and the Schaeffers, collectively referred to as “defendants”. The plaintiffs contend that the trial court erred in granting summary judgment in favor of Ranch Roy-L because it relied on affidavits that were not competent, admissible evidence. Plaintiffs also argue that the trial court erred in its grant of summary judgment in favor of Ranch Roy-L because it was contrary to the undisputed facts and applicable law, which established that Ranch Roy-L was not the successor developer to Roy Longstreet, and additionally did not have the right to subdivide a particular out-lot. We affirm in part and reverse and remand in part.

The Association was incorporated on April 6, 1966 by Roy Longstreet, William Longstreet, James Longstreet, and Edward Young, Jr., thus predating the Golden Eagle Reserve subdivision (“Subdivision”), which was created by Roy Longstreet on July 18, 1966. At the first meeting of the Association, it adopted By-Laws, which were neither dated nor recorded, which defined “Developer” in Section 4 as “Roy W. Longstreet and his heirs, representative or assigns, including any corporation to which he may sell or assign the land which is being developed as Golden Eagle Reserve.”

On July 18, 1966, Roy Longstreet recorded a plat of the Subdivision, which encompassed approximately 307 acres, and an instrument entitled “Declaration of Covenants and Restrictions of Golden Eagle Reserve” (“Declaration”) with the recorder of deeds of Montgomery County, Missouri. The Declaration referred to Roy Longstreet as the “Developer.” Article II, section 2 of the Declaration states as follows:

The Developer, its heir and assigns, shall in the future have the right to bring within the scheme of this declaration additional property, or properties, provided that such additions are in accord with a general plan of development prepared prior to the sale of any lot in any such new development and made known to every purchaser prior to the sale.

Article VIII(l) is a restriction on all lots on the property described in Article II, which states, among other things, that “[n]o lot may be subdivided, but more than one lot may be purchased and combined to make one lot.” Article VII addresses out-lots. Section 3 of Article VII states that notwithstanding any other restrictions in the Declaration, “Developer, for himself and his heirs and assigns, reserves the right to resubdivide out-lots G and H[.]” No mention is made about subdividing out-lot F.

On October 13, 1972, Roy Longstreet and his sons, James and William, all of whom had been among the incorporators of the Association, incorporated Ranch Roy-L. On November 16, 1972, Roy Longstreet and his wife deeded real property to Ranch Roy-L, which included all property in the Subdivision, with the noted exceptions of a number of individual lots, and some adjacent property that was not-originally a part of the Subdivision. This warranty deed included the standard haben-dum clause stating that Roy Longstreet and his wife were conveying the real property to Ranch Roy-L to have and to hold “with all and singular the rights, privileges appurtenances and immunities thereto or in anywise appertaining unto the said party of the second part [Ranch Roy-L], and unto its heirs and assigns forever[.]” James Longstreet and William Longstreet also deeded real property to Ranch Roy-L, totaling 200 and 517 acres respectively, located in sections adjoining the real property that was originally part of the Subdivision.

In 1987 and 1988 Ranch Roy-L conveyed real property by quit-claim deeds to the Association, which the latter accepted. On May 3, 1988, Ranch Roy-L subdivided out-lot F, which was not common property of the Subdivision, into ten lots, numbered 113 through 122 by recording a plat of this re-subdivided property with the recorder of deeds. Plaintiffs were property owners in the Subdivision at the time of this re-subdivision. On December 31, 2001, Ranch Roy-L purported to add a section of real property to the Subdivision, which it designated as Golden Eagle Reserve, Section Three, recording a plat thereof with the recorder of deeds that day. That same day, Ranch Roy-L conveyed that same real property to Gary and Jill Schaeffer (“the Schaeffers”), as well as attempting to convey additional property and an easement within the original boundaries of Golden Eagle Reserve, Section One, which areas had been designated as common ground of Section One in the original plat.

In the fall of 2002, plaintiffs filed a petition, subsequently amended, bringing suit against Ranch Roy-L and the Schaeffers. They sought a declaratory judgment from the trial court that Ranch Roy-L’s subdivision of out-lot F into lots 113 through 122 “was unlawful, null and void ab initio and the purported plat [thereof] ... is void and of no force or effect.” Plaintiffs further sought a declaration that the addition of Golden Eagle Reserve, Section Three to the Subdivision by Ranch Roy-L “is unlawful, null and void and the purported plat [thereof] ... is void[J” They additionally sought a declaration that the general warranty deed from Ranch Roy-L to the Schaeffers “is unlawful, null and void to the extent that it purports to include the described property in the Golden Eagle Reserve scheme and to the extent that it purports to convey title to a portion of out-lot J to the Schaeffers, and to the extent that it purports to create a road easement on a portion of out-lot D in favor of the Schaeffers.” Plaintiffs also sought an order and judgment preventing Ranch Roy-L and the Schaeffers from asserting or exercising rights reserved to the Association and owners of real property in the Subdivision, except to the extent that they are or may become owners of such real property. In their amended petition, plaintiffs and the Association asserted that subdivision of out-lot F was prohibited, and that Roy Longstreet, the developer, never conveyed or assigned to Ranch Roy-L the right to add real property to the Subdivision.

Ranch Roy-L and the Schaeffers filed answers raising a variety of affirmative defenses. Ranch Roy-L also filed a four-count counterclaim seeking declaratory judgment of various issues. Count I sought several declarations, essentially that Ranch Roy-L is the successor Developer to Roy Longstreet with all rights thereto, and that it is not prohibited from dividing property that it owns within the Subdivision, and that its subdivision of out-lot F was lawful. In Count II, Ranch Roy-L sought the enforcement of restrictions promulgated in the Declaration and in regulations adopted by the Association against Scott regarding a modification of a platted property line and the erection of a fence by Scott. Counts III and IV were ultimately dismissed.

Plaintiffs filed a motion for summary judgment on the counts in their First Amended Petition and on Count I of the Counterclaim. Defendants filed responses to this motion, which they amended by leave of court. The amended responses included affidavits of James Longstreet and of Gary Schaeffer. Plaintiffs moved to strike portions of both affidavits. Ranch Roy-L filed its own motion for summary judgment on Count I of the Counterclaim supported by another affidavit from James Longstreet, which plaintiffs moved to strike. The trial court denied the plaintiffs’ motions to strike.

On December 21, 2005, the trial court granted partial summary judgment in favor of plaintiffs on their First Amended Petition. The trial court entered judgment in favor of plaintiffs ordering that the general warranty deed from Ranch Roy-L to the Schaeffers is “null and void to the extent that it purports to convey to Defendants Schaeffer (a) a 75-foot roadway and utility easement across Out-Lot D of Golden Eagle Reserve, and (b) any part of Out-Lot J of Golden Eagle Reserve because these are common areas that can only be conveyed with the consent of all lot owners.” It denied plaintiffs’ motion for summary judgment in all other respects, having found that “numerous material issues of fact remain in dispute regarding Plaintiffs request for Summary Judgment.” The trial court granted summary judgment in favor of Ranch Roy-L on Count I of its Counterclaim, having found that there were no uncontroverted issues of material fact as to Count I. The trial court declared that the undisputed facts show “that Ranch Roy-L is the successor Developer of Golden Eagle Reserve Association as defined in the By-Laws of Golden Eagle Reserve Association.” It further declared that Ranch Roy-L lawfully subdivided out-lot F “in accordance with the authority vested in Ranch Roy-L, Inc. by the Declarations and according to the specifications within the Declarations.” The trial court also declared that Golden Eagle Reserve Section Three was lawfully annexed and added to the Subdivision. It declared that the deed from Ranch Roy-L to the Schaeffers was valid, except as previously set forth in the trial court’s order and judgment, and that the Schaeffers were entitled to all rights as owners of real property in the Subdivision. Ranch Roy-L subsequently dismissed Count II of its Counterclaim, which was the only remaining claim raised by the parties, without prejudice, leaving no issues before the trial court. Plaintiffs now appeal.

Our review of a summary judgment is essentially de novo. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). We “review the record in the light most favorable to the party against whom judgment was entered!,]” and accord that party the benefit of all reasonable inferences which may be drawn from the record. Id. “Facts that are set forth by affidavit or otherwise in support of a party’s motion for summary judgment are taken as true unless contradicted by the non-moving party’s response to the motion.” Id.

For purposes of our analysis, we will consider plaintiffs’ first and second points relied on together, discussing the second point and then the first point. In their second point on appeal, plaintiffs assert that the trial court erred in granting summary judgment in favor of Ranch Roy-L and in denying their motion for summary judgment on the issue of Ranch Roy-L’s status as a successor developer to Roy Longstreet that could add real property to Golden Eagle Reserve. Plaintiffs aver that the undisputed facts and applicable law show that Ranch Roy-L is not the successor developer to Roy Longstreet under the subdivision indentures and could not add ground to Golden Eagle Reserve without the consent of the property owners in that there is no evidence: that Roy Longstreet assigned his rights as developer in writing as required by the statute of frauds or that he recorded such an assignment. Plaintiffs also argue that Ranch Roy-L is not Roy Longstreet’s heir as a matter of law, and that Ranch Roy-L did not contend that it is Roy Longstreet’s heir. Plaintiffs further contend that nothing in the Association’s bylaws, which were not recorded, “could create or vary any property rights in Golden Eagle Reserve, including Roy Longstreet’s retained right under the subdivision indenture to add new ground.”

In this case, there was no specific written assignment of Roy Longstreet’s rights as the developer. The only evi-dence in writing that serves as a basis for Ranch Roy-L’s contention that Roy Longstreet assigned his rights as the developer of Golden Eagle Reserve to Ranch Roy-L is the general warranty deed that Roy Longstreet and wife executed in November 16, 1972 to Ranch Roy-L. The language of the habendum clause in that deed, as in all general warranty deeds, is broad, conveying to the grantee, Ranch Roy-L, “TO HAVE AND TO HOLD, The premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in anywise appertaining....” Superficially this would seemingly convey Roy Longstreet’s rights as the developer of the Subdivision, and Ranch Roy-L so argues, noting that “all” is extremely inclusive. No Missouri cases appear to address this issue, but the general rule in other jurisdictions is that the developer’s rights are personal rights and do not run with the land. See Board of Managers of the Medinah on the Lake Homeowners Association v. Bank of Ravenswood, 295 Ill.App.3d 131, 229 Ill.Dec. 629, 692 N.E.2d 402, 404-05 (1998); Toepper v. Brookwood Country Club Road Association, 204 Ill.App.3d 479, 149 Ill.Dec. 585, 561 N.E.2d 1281, 1285 (1990); Fairways of Country Lakes Townhouse Association v. Shenandoah Development Corp., 113 Ill.App.3d 932, 69 Ill.Dec. 680, 447 N.E.2d 1367 (1983); Peoples Federal Savings and Loan Association of South Carolina v. Resources Planning Corporation, 358 S.C. 460, 596 S.E.2d 51, 60-61 (2004); Larkin v. City of Burlington, 172 Vt. 566, 772 A.2d 553 (2001). We find these authorities persuasive, and hold that the developer’s rights of a platted subdivision are personal rights that do not run with the land. Since the warranty deed did not contain a specific assignment of those rights as the developer of the Subdivision, such rights were not conveyed by the general language of the habendum clause of the deed.

Plaintiffs contend that the assignment of Roy Longstreet’s rights as the developer, which are set forth in the Declaration, is invalid because it was not a written assignment and in violation of the Statute of Frauds, section 432.060 RSMo (1969), and was not recorded as required by section 442.380. Defendants argue that the Statute of Frauds does not apply to developer’s rights, that the warranty deed satisfied any requirement that the assignment be in writing, and that the plaintiffs cannot challenge the assignment on the basis that it violated the Statute of Frauds because they were not parties to the assignment. As noted above, we believe that the developer’s rights were not transferred by the warranty deed absent a specific assignment because such rights are personal and do not run with the land. We need not decide whether section 432.060 applies to developer’s rights because we agree that plaintiffs cannot raise non-compliance with the Statute of Frauds to challenge the assignment.

Assuming arguendo that there was an oral assignment by Roy Longstreet to Ranch Roy-L of his developer’s rights, such assignment is not void, but rather voidable by the party to be charged. See Norden v. Friedman, 756 S.W.2d 158, 162 (Mo. banc 1988) (assuming assignment of a lease of an oil interest violated statute of frauds, assignment was merely voidable, not void); Community Land Corporation v. Stuenkel, 436 S.W.2d 11, 18 (Mo.1968) (involved a contract for the sale of an interest in land that was verbally assigned). Such an agreement is unenforceable, but not void. See Huttig v. Brennan, 328 Mo. 471, 41 S.W.2d 1054, 1062 (1931); see also Restatement (Second) of Contracts section 324 cmt. b (1981). The Statute of Frauds relates to the remedy only, and not to the validity of a contract. Id.

Plaintiffs cannot challenge the validity of that assignment on the basis that it violated the Statute of Frauds because they were not parties to the assignment. “Only a party to a contract or a transferee or successor of a party to the contract can assert that the contract is unenforceable under the Statute of Frauds.” Restatement (Second) of Contracts section 144 (1981); see also Restatement (Second) of Contracts section 324 cmt. b (1981). Missouri courts have taken a similar position to that of the Restatement. “[I]t is well established that if both parties to a contract waive the requirements of the statute and carry the contract into execution, a third party cannot be heard to question its effect.” Doerflinger Realty Company v. Fields, 281 S.W.2d 609, 612 (Mo.App.1955). See also Stuenkel, 436 S.W.2d 11; Bauer v. White, 225 Mo.App. 270, 29 S.W.2d 176, 179 (1930); B. Roth Tool Company v. Champ Spring Company, 93 Mo.App. 530, 67 S.W. 967, 968 (1902).

Ranch Roy-L argues that it is sufficient to show the intent of Roy Longstreet to assign his rights as the developer to Ranch Roy-L, citing to the Illinois case of Bank of Ravenswood, 229 IlLDec. 629, 692 N.E.2d at 404-05. The Restatement (Second) of Contract section 324 (1981) states that

It is essential to an assignment of a right that the obligee manifest an intention to transfer the right to another person without further action or manifestation of intention by the obligee. The manifestation may be made to the other or to a third person on his behalf and, except as provided by statute or by contract, may be made either orally or by a writing.

The intent to assign an interest is key, and no set form of words is necessary to accomplish an assignment, provided that the circumstances show an intent on one side to assign and on the other side to receive. Keisker v. Farmer, 90 S.W.3d 71, 74 (Mo. banc 2002) (quoting Farmers Insurance Co. v. Effertz, 795 S.W.2d 424, 425 (Mo.App.1990)). See also 6 Am.Jur.2d Assignments section 135 (1999).

To sustain a grant of summary judgment in this case on the basis that Ranch Roy-L is the successor developer to Roy Longstreet because he intended to assign his rights as the developer of the Subdivision to Ranch Roy-L, the undisputed summary judgment facts must show this intent to assign.' The plaintiffs can and do challenge that the undisputed facts establish that Ranch Roy-L is entitled to a grant of summary judgment in its favor. In their first point relied on, plaintiffs contend that the trial court erred in entering summary judgment in Ranch Roy-L’s favor and in denying plaintiffs’ motion for summary judgment on the issue of Ranch Roy-L’s status as a successor developer, and also erred in denying their motions to strike the affidavits of James Longstreet and Gary Schaeffer, in that the trial court erroneously relied on those affidavits, which were not competent admissible evidence because they were not made on personal knowledge and contained inadmissible hearsay and conclusory statements.

Rule 74.04(e) requires that supporting and opposing affidavits be based on personal knowledge, set forth facts that would be admissible in evidence, and affirmatively show that the affiant is competent to testify to the matters stated therein. Jones v. Landmark Leasing, Ltd., 957 S.W.2d 369, 376 (Mo.App.1997). Hearsay statements that would not be admissible at trial are not competent to support a motion for summary judgment. Id. Legal conclusions are not admissible facts. Cardinal Glennon Children’s Hospital v. St. Louis Labor Health Institute, 891 S.W.2d 560, 561 (Mo.App.1995). An affidavit’s proper function is to state facts, not conclusions. Reid v. Johnson, 851 S.W.2d 120, 122 (Mo.App.1993). An affidavit that is eonclusory does not maintain a fact dispute for a jury. Id.

The affidavits of James Longstreet and Gary Schaeffer do not specifically state that they were made on the personal knowledge of the respective affi-ants. While it is perhaps the wisest course to have such an explicit statement in the affidavit, the absence of such a statement is not fatal to the admissibility of the affidavit. Jones v. Pinkerton’s, Inc., 700 S.W.2d 456, 461 (Mo.App.1985). The absence of a specific, “magic phrase” is immaterial, for Rule 74.04(e) requires only that affidavits be made on personal knowledge, not that specific language be used. Morley v. Ward, 726 S.W.2d 799, 802 (Mo.App.1987) (quoting Jones, 700 S.W.2d at 460-61). It is sufficient if the record shows that the affiant had personal knowledge of the facts in the affidavit. See Wilson v. St. Louis Area Council, Boy Scouts of America, 845 S.W.2d 568, 573-74 (Mo.App.1992).

The affidavits of both James Longstreet and Gary Schaeffer do contain statements that are hearsay and/or conclu-sory. For example, both affiants stated that they were informed of certain facts by others. James Longstreet stated that he had been informed by Roy Longstreet that the latter had created Ranch Roy-L “pursuant to the guidelines of the By-Laws to serve as a successor developer for Golden Eagle Reserve.” Schaeffer stated in his affidavit that James Longstreet made representations to him in conversations that Ranch Roy-L was a developer of Golden Eagle Reserve with the power to convey property and add property to Golden Eagle Reserve. Both affiants, particularly Schaeffer, make eonclusory statements regarding the legal effects of documents. James Longstreet’s affidavit includes a eonclusory statement that Ranch Roy-L is the successor developer of Golden Eagle Reserve. Schaeffer’s affidavit contains the eonclusory statement that he and his wife have certain rights as members of the Association. All of these statements are inadmissible and cannot be used to support summary judgment. However, those affidavits also contain statements of fact that the record shows are based on personal knowledge. The lack of a direct statement that the affidavits were made based on personal knowledge does not render them fatally defective. Those portions of the affidavits that are based on personal knowledge are admissible, and the trial court did not err in denying the motion to strike the affidavits in their entirety.

To the extent that the affidavits contained inadmissible hearsay and/or eonclusory statements, the trial court erred in not granting plaintiffs’ motion in the alternative to strike such inadmissible material from the affidavits. However, a motion for summary judgment will not fail merely because some of the statements contained in the affidavit may be inadmissible. See Landmark Leasing, 957 S.W.2d at 376. “A court may look to the remaining portions of the affidavits and pleadings in a case to see if there is a basis to support the summary judgment.” Id. However, the remaining portions of the affidavits and pleadings do not establish as an undisputed fact that Roy- Longstreet assigned his developer’s rights to - Ranch Roy-L. The undisputed facts do show that Ranch Roy-L intended to receive the assignment of developer’s rights. James Longstreet, as one of the incorporators of Ranch Roy-L, had personal knowledge of the purposes for which the corporation was formed. But merely because a corporation was formed for a set of purposes does not mean that all of those purposes are ever achieved. There are no summary judgment facts showing that Roy Longstreet assigned the - developer’s rights. Ranch Roy-L argues that by deeding the Subdivision property to it in the warranty deed, Roy Longstreet obviously inténded that Ranch Roy-L develop that - property. Ranch Roy-L also contends that it did acts that only the developer could do, such as developing and subdividing out-lots, and adding property to the Subdivision, which is evidence that Roy Longstreet intended to assign his rights as the developer. Although the summary judgment facts might permit an inference that Roy Longstreet intended to assign his developer’s rights, this is not an undisputed fact. A reasonable inference drawn from admissible evidence by the finder of fact might be sufficient to sustain a judgment after a trial on the merits, but this is not a proper foundation for summary judgment, as under our standard of review we construe all inferences favorably to the non-movant. See ITT Commercial Finance Corp. 854 S.W.2d at 382-83; Ryan v. Rademacher, 142 S.W.3d 846, 849 (Mo.App.2004). The trial court erred in not striking the inadmissible material from the affidavits and in determining that the undisputed facts show that Ranch Roy-L is the successor developer to Roy Longstreet and in granting summary judgment in favor of Ranch Roy-L on this issue. Point sustained.

In their third point relied on plaintiffs contend that the trial court erred in granting summary judgment in favor of Ranch Roy-L and in denying their motion and in finding that Ranch Roy-L lawfully subdivided Out-Lot F in accordance with the authority vested in it by the Declaration. Plaintiffs assert that the undisputed facts proved that Ranch Roy-L did not have the right to subdivide Out-Lot F in that: (1) it did not exist when the Declaration was created and recorded, and did not thereafter acquire the developer’s rights vested in Roy Longstreet by the Declaration; (2) the Declaration plainly prohibited the subdivision of Out-Lot F.

Having already held that the undisputed facts did not establish that Ranch Roy-L is the successor developer to Roy Longstreet with those developer’s rights that Roy Longstreet possessed, we must sustain plaintiffs’ third point relied on to the extent that it challenges Ranch Roy-L’s status as the successor developer. Having held that the undisputed facts did not establish that Roy Longstreet assigned his developer’s rights to Ranch Roy-L, summary judgment in favor of Ranch Roy-L regarding the exercise of whatever rights the developer may possess is improper. We do not reach the issue of whether the Declaration permits a subdivision of Out-Lot F, or whether the plaintiffs’ suit is barred by the affirmative defenses raised by Ranch Roy-L of the statute of limitations or laches. Point sustained.

The portion of the judgment in favor of Ranch Roy-L on Count I of its counterclaim is reversed and remanded for further proceedings. The portion of the judgment in favor of plaintiffs, which declared null and void the conveyance of roadway and utility easements and common areas is affirmed, and the judgment is affirmed in all other respects.

MARY K HOFF, P.J., and PATRICIA L. COHEN, J., concur.

      . Defendants did not appeal the judgment as to these issues.

      . Unless noted otherwise, all further statutory citations are to RSMo (1969).

      . The Declaration was recorded in Montgomery County. It sets forth the rights of the developer and provides constructive notice as to what those rights are and that those rights may be transferred to a successor developer or devolve to Roy Longstreet’s heirs. This satisfies the requirements of section 442.380 et seq.

      . Ranch Roy-L contends that this statement falls within the “state of mind” exception to the hearsay rale. The information in the affidavit is not sufficient to show that that statement does indeed fall within that exception.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Pamela KONKEL, Appellant, v. T-BIRD, INC. & S.W.L. Enterprises, L.L.C., Respondents.
    No. ED 85873.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 24, 2006.
    Application for Transfer Denied Feb. 28, 2006.
    Louis J. Basso, Michael E. Myers, Chesterfield, MO, for appellant.
    Jane Cohen, St. Louis, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Pamela Konkel (“Konkel”) appeals from a judgment of the trial court that granted T-Bird Inc. (“T-Bird”) and S.W.L. Enterprises, L.L.C. (“SWL”) their Motion to Dismiss Konkel’s petition for failure to state a claim. Konkel claims that the trial court erred in dismissing her petition on the grounds that she lacked standing to sue T-Bird and SWL in either her capacity as Robert Konkel’s (“Deceased”) ex-wife or as administratrix of his estate. In her second point relied on, Konkel argues that the trial court erred in finding that her divorce decree failed to comply with the full faith and credit clause of the United States Constitution. Specifically, Konkel claims that the only issue before the trial court was whether her petition stated a cause of action, not whether she had adequately proved each of the elements of her cause of action. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Diane PARKER, Claimant/Appellant, v. TREASURER OF the STATE OF MISSOURI, as Custodian of the Second Injury Fund, Additional Party/Respondent.
    No. ED 86378.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 19, 2006.
    Susan K. Roach, The Roach Law Firm Clayton, MO, for appellant.
    Carol L. Barnard, Assistant Attorney General, St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Claimant appeals from the final award of the Labor and Industrial Relations Commission, affirming the award of the Administrative Law Judge. We affirm. The findings and conclusions of the Commission are supported by competent and substantial evidence on the whole record. No error of law appears, and an extended opinion would have no precedential value. The parties have been furnished, for their information only, with a memorandum setting forth the reasons for our order affirming the judgment pursuant to Rule 84.16(b).


author: MARY K. HOFF, Presiding Judge.

text:
    STATE of Missouri, ex rel., David L. Otte, Relator, v. MISSOURI STATE TREASURER as Custodian of the Second Injury Fund, Respondent.
    No. ED 86210.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 6, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 19, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Richard M. Marshall & Assoc. P.C., St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Barbara L. Toepke, Assistant Attorney General, St. Louis, MO, for respondent.
   OPINION

MARY K. HOFF, Presiding Judge.

State of Missouri, ex rel, David L. Otte (Relator) appeals from the trial court’s judgment denying his petition for a permanent writ of mandamus (petition), which requested that the trial court order the Missouri State Treasurer, as Custodian of the Second Injury Fund (Treasurer), to pay interest on Relator’s medical expenses as awarded by the Labor and Industrial Relations Commission (Commission). We reverse and remand the judgment for an evidentiary hearing.

Facts and Procedural Background

The parties are before the Court for the third time, and a brief description of their previous appeals is necessary to understand the context of the current ease.

In Otte v. Langley’s Lawn Care, Inc., 66 S.W.3d 64 (Mo.App. E.D.2001) (Otte I), we affirmed the Commission’s final award finding Langley Lawn Care, Inc. (Employer) liable for Relator’s past medical expenses, future medical care, and temporary total and permanent partial disability benefits for a 1995 work-related injury. Otte I, 66 S.W.3d at 67. We further affirmed the Commission’s finding that Employer had allowed its workers’ compensation insurance to lapse and that Employer’s insurance was not in force at the time of Relator’s injury; thus, under Section 287.220.5, the Second Injury Fund (SIF), as the statutory guarantor of past and future medical expenses for uninsured employers, was liable for paying Relator’s past and future medical expenses. Id. at 73. Treasurer, in its capacity as custodian of the SIF, did not appeal the portion of the Commission’s award that stated, “Any past due compensation shall bear interest as provided by law.”

In Otte v. Missouri State Treasurer, 141 S.W.3d 74 (Mo.App. E.D.2004) (Otte II), Relator filed with the trial court an application for execution against Treasurer, as custodian of the SIF, for payment of interest accumulated on the medical expenses as awarded by the Commission. Otte II, 141 S.W.3d at 75. Relator contended that the Commission’s final award conferred interest and that the SIF owed more than the exact amount of his medical bills because the sum of those bills had accumulated interest. Id. Treasurer filed a motion to dismiss and quash Relator’s application for execution on the ground of sovereign immunity. Id. The trial court denied both motions, and Treasurer appealed to this Court. Id.

On appeal, Treasurer argued that it was protected from execution by the doctrine of sovereign immunity because Treasurer was a state entity and the legislature had not specifically waived sovereign immunity in the circumstances of the suit brought against Treasurer. Id. We agreed with Treasurer, finding that Chapter 513, concerning executions, governed instead of Section 287.220.5 of the workers’ compensation statute. Id. at 76. We held that Chapter 513 contains no language that specifically or implicitly waives sovereign immunity; thus, Relator was prevented from bringing a Chapter 513 action in execution against Treasurer. Id. We reversed and remanded the trial court’s order denying Treasurer’s motions to dismiss and to quash Relator’s application for execution. Id. In a footnote, however, we described an alternate remedy for Relator in the form of a petition for a writ of mandamus because “the preferred means to collect money clearly owed by the state is mandamus.” Id. at 76, n. 3.

Following our opinion in Otte II, Relator filed his petition against Treasurer. In his petition, Relator alleged that he was entitled to payment from Treasurer of interest on the medical expenses awarded by the Commission because the Commission’s award also conferred interest. The trial court issued a preliminary writ of mandamus and ordered Treasurer to respond to Relator’s petition. Treasurer thereafter filed its response and suggestions in opposition to Relator’s petition, arguing that an action in mandamus was inappropriate because Relator had no clearly established right to the payment of interest in that interest was available only on awards of temporary total disability benefits, not medical bills. The trial court subsequently denied Relator’s petition on the grounds that: 1) the Commission’s award did not provide for interest on past due medical expenses; 2) the Commission’s award provided for interest only on past due compensation; and 3) Relator’s request was not supported by law. This appeal follows.

Standard of Review

We review the trial court’s grant or refusal of a writ of mandamus under an abuse of discretion standard. State of Missouri ex rel. Killingsworth v. George, 168 S.W.3d 621, 623 (Mo.App. E.D.2005). Mandamus is a remedy used to enforce, not establish, a right. State ex rel. St. Joseph Hospital v. Fenner, 726 S.W.2d 393, 395 (Mo.App. W.D.1987). For mandamus to be appropriate, there must exist a clear, unconditional legal right in the relator and a corresponding present, imperative, unconditional duty on respondent. Id.

Discussion

Relator presents two points on appeal. However, because of our disposition of the case, we need only address Relator’s first point. In his first point, Relator argues that the trial court erred in denying his petition and in ruling he was not entitled to interest on his medical expenses because: 1) Sections 287.140.1 and 287.260 both refer to medical expenses as compensation; 2) the Commission’s final award refers to medical expenses as compensation; and 3) case law indicates interest may be paid on all types of compensation, including medical expenses. The Commission’s final award stated, “Any past due compensation shall bear interest as provided by law.”

In addition to all other compensation, an employer shall provide an injured employee with such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance, and medicines, as reasonably required after the injury or disability, to cure and relieve the employee from the effects of the injury. Section 287.140.1. In cases where the employer has failed to insure or self-insure its entire liability in accordance with the provisions of the workers’ compensation act, the claimant may file a claim against the SIF for payment of his fair, reasonable, and necessary expenses to cure and relieve the effects of his injury or disability. Section 287.220.5, Section 287.280.1.

Section 287.160.3 provides for the payment of interest on awards of weekly benefit payments for a claimant’s disability but not on awards of other types of compensation, such as medical expenses. Section 287.160.3; Tidwell v. Kloster Co., 8 S.W.3d 585, 590 (Mo.App. E.D.1999); McCormack v. Stewart Enter., Inc., 956 S.W.2d 310, 313 (Mo.App. W.D.1997); Lenzini v. Columbia Foods, 829 S.W.2d 482, 487 (Mo.App. W.D.1992) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 225 (Mo. banc 2003)); Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105, 112 (Mo. banc 1989) (superseded by statute on other grounds as recognized in Johnson v. St. John’s Mercy Med. Ctr., 812 S.W.2d 845, 851 (Mo.App. E.D.1991)). To determine what interest should be awarded on a claimant’s medical expenses, it is necessary and proper to look to the general interest statutes. McCormack, 956 S.W.2d at 312-14; Pemberton v. 3M Co., 992 S.W.2d 365, 367 (Mo.App. W.D.1999). Section 408.020 provides:

Creditors shall be allowed to receive interest at the rate of nine percent per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand of payment is made; for money recovered for the use of another, and retained without the owner’s knowledge of the receipt, and for all other money due or to become due for the forbearance of payment whereof an express promise to pay interest has been made.

Accordingly, a claimant is entitled to interest on his medical expenses if he establishes that: 1) the expenses were “due,” i.e., he actually paid the expenses, his providers were demanding interest of him, or he suffered a loss by the delay of payment; 2) the amount due was readily ascertainable by computation or by reference to a legal standard; and 3) he had demanded the employer to pay the expenses. McCormack, 956 S.W.2d at 314.

Treasurer, citing Tidwell and Miller v. G.O. Wefelmeyer, 890 S.W.2d 372 (Mo.App. E.D.1994), argues that the phrase used by the Commission in its award, “Any past due compensation shall bear interest as provided by law[,j” has been interpreted by Missouri courts to mean interest awarded pursuant to Section 287.160.3 despite the Commission’s failure to specifically refer to Section 287.160.3. We disagree. A careful reading of Tidwell and Miller reveals that the facts in those cases involved claims for weekly disability benefits, which triggered the provisions of Section 287.160.3 allowing for awards of interest on those benefits, and raised the issue of whether the interest could be calculated retroactively. The instant case requires us to determine only whether the Commission actually awarded Relator interest on his medical expenses, and we find Lenzini helpful in making that determination.

In Lenzini, the Commission awarded the claimant permanent partial disability benefits and a lump sum amount for medical expenses. Lenzini, 829 S.W.2d at 483. The Commission also conferred interest on the award. Id. There, the employer appealed the award of interest on the medical expenses on the ground that the claimant had not proven she had paid the bills for those expenses. Id. at 483-84. The Western District remarked that the Commission’s award was unclear as to whether the Commission intended to or did, in fact, award interest on the medical expenses but found significant the Commission’s language in the award, which stated, “any past due compensation shall bear interest from the date when due until paid as provided by Section 287.160 RSMo 1986.” Id. at 487 (emphasis added). The Western District reasoned that because the Commission had specifically referred to Section 287.160, which involves the payment of weekly disability benefits and not the payment of medical expenses, the Commission’s award did not include interest on the medical expenses. Id.

Here, unlike Lenzini, the Commission’s language in the award did not specifically refer to Section 287.160 or to any specific type of compensation included in the award. The Commission simply stated that any past due compensation would bear interest. Thus, based on the specific circumstances of this case, we conclude that the Commission’s award included interest on Relator’s medical expenses. Therefore, we reverse the trial court’s judgment denying Relator’s petition and remand to the trial court for an evidentia-ry hearing to determine the amount of interest owed by Treasurer on Relator’s medical bills under the general interest statutes. McCormack, 956 S.W.2d at 314.

The trial court’s judgment is reversed and remanded for an evidentiary hearing.

CLIFFORD H. AHRENS and PATRICIA L. COHEN, Judges, Concur.

      . All statutory references are to RSMo 1994, unless otherwise indicated. Relator’s accident and resulting injuries occurred on June 16, 1995.

      . We note that Sections 287.140.1 and 287.260 do not provide for interest on workers’ compensation awards. Section 287.140.1 sets out, generally, the type of compensation an employer shall provide to an injured employee. Section 287.260 sets out the rules concerning whether an award of compensation is assignable. Relator cites the two sections in support of his proposition that the terms "medical expenses” and "compensation” are used interchangeably and are equivalent terms.


author: KENNETH M. ROMINES, Judge. GEORGE W. DRAPER III,

text:
    Keith WEBER, Appellant, v. McBRIDE & SON CONTRACTING, CO., and Laramie Drywall Co., Respondents.
    No. ED 86076.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 19, 2006.
    Application for Transfer Denied Feb. 28, 2006.
    David C. Knieriem, Clayton, MO, Ryan R. Cox, St. Charles, MO, for appellant.
    Russell F. Watters, T. Michael Ward, Brown & James, P.C., St. Louis, MO, for McBride & Son Co.
    John F. Cooney, Kevin E. Meyers, Baker Sterchi Cowden & Rice, L.L.C., St. Louis, MO, for Laramie Drywall Co.
   KENNETH M. ROMINES, Judge.

Plaintiff-Appellant Keith Weber (“Weber”) appeals from the decision of the trial court granting Defendant-Respondent McBride & Son Contracting Company’s (McBride) and Laramie Drywall Company’s (Laramie) motions for summary judgment. We affirm.

We consider the record from an appeal of summary judgment in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) (hereinafter “ITT ”). Facts established by affidavit or other proof in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. Id. We accord the non-moving party the benefit of all reasonable inferences from the record below. Id. The propriety of summary judgment is purely an issue of law, and our review is de novo. Id.

The essential facts, by way of motion for summary judgment, before the trial Court are clear: Weber was working as a painter, for a painting contractor, on an unfinished single-family residence when he fell through a hole in the floor which had been cut for a stairwell. At the time of the fall the residence was owned by the general contractor Vantage Home, Inc. (Vantage) who is not before the Court. McBride and Laramie were sub-contractors on the job but had finished their respective specialties and had turned the residence over to Vantage who had accepted McBride and Laramies work as complete.

The record before the trial Court further showed that on the day of the fall Weber and a co-worker were the only people in the residence, that Weber had inspected the house and seen the unbarri-caded hole and warned his co-worker of what was an open and obvious peril. The record shows no attempt by Weber to contact Vantage to have a barricade placed around the hole, or any attempt by Weber or his co-worker to cover the hole themselves.

The record further before the Court showed that McBride had cut the hole in the sub floor and constructed a railing around the hole. McBride was never informed by Vantage or Laramie that the railing had been removed.

Weber filed a two count petition in Count I alleging that either McBride or Laramie, or both were negligent in regard to the hole relying on res ipsa loquitur. By Count II Weber sought relief against McBride, only, for negligent design of the barricade.

After discovery McBride filed a motion for summary judgment specifically claiming judgment as a matter of law arguing it had negated essential elements of both Counts of Weber’s petition. Laramie sought summary judgment as to Count I alleging that the application of res ipsa loquitur was inappropriate in this case. Both McBride and Laramie relied on the acceptance doctrine before the trial Court. The trial Court granted summary judgment as to both McBride and Laramie.

The clear standard regarding summary judgment is stated as “... the key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question ...” ITT, 854 S.W.2d at 380. As the trial Court below correctly concluded Weber cannot show that either McBride or Laramie owed Weber a duty in regard to the un-barricaded hole. Neither McBride nor Laramie can be held hable for Weber’s injuries as a matter of law as the Courts of this state have repeatedly recognized that acceptance by the general contractor of a sub-contractors work reheves the sub-contractor of liability as to a third person.

Appellant Weber candidly acknowledges this doctrine in his brief and asks us to overturn a long line of Missouri cases on the basis of one cited Oregon case, and the argument that Missouri is in the minority of states in regard to application of the doctrine. We decline the invitation.

Since at least 1905 Missouri, in this one area of its negligence jurisprudence, has apphed the principle that acceptance of work by a general contractor (or owner) reheves the sub-contractors from liability.

The principle involved, and the pohcy at issue, has changed little since articulated by the Western District of this Court in 1905 as follows:

“... [b]y occupying and resuming possession of the work, the owner deprives the [sub] contractor of all opportunity to rectify the wrong. Before accepting the work as being in full compliance with the terms of the contract, he is presumed, to have made a reasonably careful inspection thereof, and to know of its defects, and, if he takes it in defective condition he accepts the defects and the negligence that caused them as his own, and hereafter stands forth as their author.” Casey v. Hoover, 114 Mo.App. 47, 89 S.W. 330, 334 (1905).

A cursory examination of cases show the doctrines validity today, albeit, not described in language as colorful as in Casey, id. Recent cases include: Fisher v. State Highway Commission, 948 S.W.2d 607 (Mo. banc 1997); Gast v. Shell Oil, 819 S.W.2d 367 (Mo. banc 1991); Becker v. Setien, 904 S.W.2d 338 (Mo.App. W.D.1995); Coleman v. City of Kansas City, 859 S.W.2d 141 (Mo.App. W.D.1993); Bloemer v. Art Welding, 884 S.W.2d 55 (Mo.App. E.D.1994); and Rogers v. Frank C. Mitchell Co., 908 S.W.2d 387 (Mo.App. E.D.1995).

The record contains clear evidence that neither McBride nor Laramie had control of the residential construction at issue — as such both McBride and Laramie were due judgment as a matter of law as to Count I and the trial Courts analysis in this regard was correct. Simply, consistent with the acceptance doctrine McBride owed Weber no duty as to Count I or Count II, and Laramie owed no duty as to Weber as to Count I, the doctrine is a complete defense.

Reliance on res ipsa loquitur by Weber is no panacea. In this area of the law res ipsa loquitur does not overcome the acceptance doctrine as a complete defense. A cursory examination of what res ipsa loquitur is and when it has efficacy is instructive. Clearly, res ipsa loquitur is a rule of evidence. Weaks v. Rupp, 966 S.W.2d 387, 393 (Mo.App. W.D.1998). The rule allows a jury to infer negligence when three elements combine: (1) the incident normally does not occur without negligence; (2) and, the incident was caused by an instrumentality under the control of the defendant; (3) and, the defendant has superior knowledge about the cause of the incident. Id. at 393-94. Interestingly, both the acceptance doctrine and res ipsa loquitur have at their core control by the defendant. As is clear on this record neither McBride nor Laramie had control; no control, no application of res ipsa loquitur, which would but shift an evidentiary burden not create a duty. The effect of the acceptance doctrine is to make no inquiry as to whether the defendant is “negligent”, the doctrine simply says once control is no longer in the defendants hands the defendant owes no duty as to negligence.

The trial Court correctly granted summary judgment, Judgment Affirmed.

GARY M. GAERTNER, SR., P.J., concurs.

GEORGE W. DRAPER III, J., dissents in separate opinion.

GEORGE W. DRAPER III,

Judge, dissenting.

I respectfully dissent from the majority opinion. I would vote to reverse the judgment of the trial court for the following reasons.

Great care should be exercised in utilizing summary judgment because it denies the party against whom it is entered a day in court. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 377 (Mo. banc 1993){quo ting Cooper v. Finke, 376 S.W.2d 225, 229 (Mo.1964)); Hart v. Kupper Parker Communications, Inc., 114 S.W.3d 342, 345 (Mo.App. E.D.2003). Accordingly, we review the record in the light most favorable to the party against whom the judgment was entered. ITT, 854 S.W.2d at 376. We accord the party against whom summary judgment was entered the benefit of every doubt. Allied Mut. Ins. Co. v. Brown, 105 S.W.3d 543, 545 (Mo.App. E.D.2003). “Summary judgment exists not to execute the merely weak, but rather to euthanize the terminally hi.” Zumwalt v. Koreckij, 24 S.W.3d 166, 168 (Mo.App. E.D.2000).

Following my review of the record in the light most favorable to Weber, I would conclude the trial court erred in granting summary judgment for McBride and Son Contracting Co., Inc. and Laramie Drywall Co., Inc. (hereinafter and collectively, “Defendant”). The trial court thereby prevented Weber from submitting his personal injury claim to the jury under the doctrine of res ipsa loquitur.

Res ipsa loquitur is a rule of evidence, allowing “a jury to infer from circumstantial evidence that the plaintiffs injury resulted from some neghgent act of the defendant, without requiring the plaintiff to allege and prove specific negligence.” Hale ex rel. Hale v. City of Jefferson, 6 S.W.3d 187, 196 (Mo.App. W.D.1999). In order to invoke the doctrine of res ipsa loquitur, Weber must estabhsh: “(1) the incident resulting in injury is of the kind which ordinarily does • not occur without someone’s negligence; (2) the incident is caused by an instrumentality under the control of the defendant; and (3) the defendant has superior knowledge about the cause of the incident.”. Logan v. Phillips, 896 S.W.2d 38, 41 (Mo.App. E.D.1994). “A party seeking to apply the doctrine of res ipsa loquitur need not submit facts surrounding the occurrence that exclude all reasonable hypotheses except defendant’s negligence.” Eversole v. Woods Acquisition, Inc., 135 S.W.3d 425, 428 (Mo.App. W.D.2004).

Weber’s injuries are those which ordinarily would not occur absent negligence by Defendant’s failure to secure the protective barrier over the hole. There was undisputed evidence that it was not the responsibility of the painters to create or secure a protective barrier on a construction site. Weber submitted enough facts to conclude, more often than not, an accident such as this resulted from a failure to exercise reasonable care on the part of the person in charge of securing the protective barrier.

There were genuine issues demonstrating that both subcontractors were responsible for securing a protective barrier over the hole in the floor. “If the instrumentality causing the harm is under the control of the defendant contractor and the plaintiff is injured while in a work area common to employees, the defendant owes a duty of care to avoid causing such injury.” Mino v. Porter Roofing Co., Inc., 785 S.W.2d 558, 561 (Mo.App. W.D.1990). There was disputed evidence regarding whether the general contractor accepted either subcontractors’ work. The instru-mentalities were under control of Defendant’s management.

Further, Defendant possesses a superior knowledge regarding the cause of the injury. “Superior knowledge can be inferred when a defendant exercises exclusive control over the instrumentality at issue.” Eversole, 135 S.W.3d at 429. “The requirement that the instrumentality be under the management and control of the defendant does not mean, nor is not limited to, actual physical control, but refers rather to the right of control at the time the negligence was committed.” Weaks v. Rupp, 966 S.W.2d 387, 394-95 (Mo.App. W.D.1998)(emphasis added). “However, when the evidence of control is attenuated by time or circumstance, there must be additional evidence to show the defendant has superior information, experience, or opportunity to know about the cause of the alleged occurrence.” Eversole, 135 S.W.3d at 429. In this case both subcontractors had the duty to construct and/or replace a protective barrier over the hole in the floor prior to finishing their work. Accordingly, both subcontractors have superior experience and opportunity to know that without a protective barrier on a construction site, someone could fall through a hole in the floor. Thus, Weber made a submissible res ipsa loquitur case.

When a plaintiff establishes the elements of res ipsa loquitur, an inference of negligence by the defendant is created. Zumwalt, 24 S.W.3d at 168. “Once the inference of negligence created by res ipsa loquitur is established, it ‘will defeat a motion for summary judgment even though the defendant presents evidence tending to establish absence of negligence.”’ Id. at 169 (quoting Graham v. Thompson, 854 S.W.2d 797, 801 (Mo.App. W.D.1993)).

Thus, I believe, Weber should be granted his day in court. I would vote to reverse the judgment of the trial court.

      . We express no opinion as to the liability, if any, of Vantage Homes.

      . There can be no valid objection to the application of res ipsa loquitur based solely upon the existence of two defendants] The jury could reasonably find that either or both of the defendants were in control of the area which should have been secured, so as to make the application of res ipsa loquitur proper. Bass v. Nooney Co., 646 S.W.2d 765, 768 (Mo. banc 1983).

      . Further, it is unclear as to whether either subcontractors’ work was accepted formally by the general contractor; thus, each potentially could have had the right of control at the time of the accident.


author: KENNETH M. ROMINES, Judge.

text:
    Lamonte R. YOUNG, Sr., Appellant, v. AMERICAN AIRLINES, INC., Respondent.
    No. ED 85898.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 19, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Lee Clayton Goodman, St. Louis, MO, for appellant.
    David H. Luce, Carmody MacDonald P.C., Clayton, MO, for respondent.
   KENNETH M. ROMINES, Judge.

Plaintiff-Appellant Lamonte R. Young, Sr. (“Young” or “Appellant”) appeals from the decision of the trial court granting Defendant-Respondent American Airlines’s (“American”) motion for summary judgment. Young, an African-American, brought an action against his employer, American, alleging wrongful termination, pursuant to the Missouri Human Rights Act, Section 213.050 RSMo. (2000), premised upon alleged racial discrimination. The incident for which Young was fired involved an altercation with two white employees over the use of a telephone in the company break room. Young admitted violating company policy by making offensive and threatening comments, and he was subsequently fired pursuant to company policy. In a written statement made before he was fired, however, Young also alleged that two white employees made comments to him that were racially offensive. The two white employees admitted participating in the altercation and to making rude comments, but they did not admit to making the racially offensive comments, which would be a violation of company policy. The white employees were punished for their conduct, but they were not fired. We cannot say with confidence on this record that American is due judgment as a matter of law, and thus, we reverse and remand.

STANDARD OF REVIEW

We consider the record from an appeal of summary judgment in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.1993) (hereinafter “ITT ”). Facts established by affidavit, or other proof in support of a party’s motion, are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. Id. We accord the non-moving party the benefit of all reasonable inferences from the record below. Id. The propriety of summary judgment is purely an issue of law, and thus, our review is de novo. Id.

FACTUAL AND PROCEDURAL BACKGROUND

Our review of the record, viewed in the light most favorable to Young, reveals that Young was employed by American from 2 October 1995 until he was fired on 18 October 2002. Young was fired as a direct consequence of an altercation with two fellow employees on 9 October 2002. During his seven years of employment with American as a fleet service clerk, Young had a satisfactory work record and generally performed his duties without incident. Prior to the incident in question, Young had never been subjected to a hostile work environment, including never experiencing any inappropriate behavior, jokes, or comments because of his race.

In 2002, American instituted a new Rules of Conduct for its employees. One of the key components of American’s new set of rules was to prohibit offensive or discriminatory speech or conduct on company grounds. The rules also provide strict punishment for employees who violate the rules. As pertinent to this case, Rule of Conduct 32 states:

Behavior that violates the company’s Work Environment Policy, even if intended as a joke, is absolutely prohibited and will be grounds for severe corrective action, up to and including termination of employment. This includes, but is not limited to, threatening, intimidating, interfering with, or abusive, demeaning, or violent behavior toward another employee, contractor, or vendor, while either on or off duty. Behavior that is also hate related will result in immediate termination of employment, regardless of length of service or prior employment record.

American defined “hate-related behavior” as:

[A]ny action or statement that suggests hatred for or hostility against a person because of his or her race, sexual orientation, religion, or other protected characteristic, including, but in no way limited to, bigoted slurs, drawings, and symbols such as a hangman’s noose, a swastika, or graffiti.

The record reveals that American went to great lengths to ensure that all of its employees were apprised of and familiar with these new policies. American specifically warned its employees that, pursuant to Rule 32, it would have zero tolerance for hate-related conduct, and immediate dismissal would result for any violation. Furthermore, pursuant to company policy, Young signed a statement acknowledging that he had read and understood Rule 32.

The incident that gave rise to the underlying litigation took place on 9 October 2002, and occurred in a company break room. Young was using the phone in the break room when a fellow employee, Chris White (‘White”), entered the room to use the phone. According to White, Young was making a personal call, and White claimed that he needed to make an important call for company business. White told Young to get off the phone several times, but Young refused each request. Shortly after White asked Young to get off the phone, another American employee, Kevin McAndrew (“McAndrew”), entered the room and also asked Young to get off the phone.

According to Young’s initial written account of the incident, McAndrew said, “hang up the [expletive deleted] phone.” There was also evidence that Young responded by calling McAndrew a “punk gay” and a “pussy.” Young further alleged in his statement that McAndrew said, “hang up the phone you peace a[sic] ‘shit,’ ” to which Young admitted responding with an expletive. However, Young also alleged that McAndrew used the term “black ass,” as well as other expletives, during this exchange.

Young also alleged that McAndrew actually reached toward the phone as if to hang it up. According to both White and McAndrew, Young response was to stand up, make a threatening gesture with the phone, and threaten to hit McAndrew with the phone. During this exchange, Young also said, “I’ll hit you with the phone you [expletive delete] faggot.” Feeling threatened, McAndrew backed away and eventually exited the room.

Following this exchange between Young and McAndrew, White approached Young and told him that he was gay and that his use of the word faggot was as if he had used the “N word” to Young. White subsequently admitted to using the term “N word.” However, Young also claimed in his written statement that during this exchange White used the actual word to which the term “N word” refers. White denied ever using the actual word at any time.

Immediately after the confrontation, Julie Davis (“Davis”), an American personnel supervisor, began an investigation of the incident. Davis interviewed all three men and took their statements. Davis eventually determined that Young’s actions constituted two separate violations of Rule 32, either of which justified termination: first, Young’s threatening gesture toward McAndrew with the phone, and second, his use of the word “faggot.”

Furthermore, Davis found that McAn-drew had used vulgarity during the encounter. As a result, McAndrew was reprimanded in a written letter that encouraged him to “consider the seriousness” of his actions, and to “correct these problems.” However, Davis did not find that McAndrew’s conduct constituted a violation of the “hate related” provision of Rule 32, and thus, he was not terminated.

Finally, Davis found that White had “endangered himself in violating American Airlines rule of conduct # 32” by using the term “the ‘N’ word” during the confrontation with Young. However, Davis did not find that White violated the “hate related” provision of Rule 32, and thus, he was not fired for his conduct.

After Davis fired Young, Young contacted his union representative and filed a grievance for wrongful termination. American subsequently denied Young’s grievance, Young appealed this decision, and a full arbitration hearing was held. At the hearing, several witnesses testified, including Young, White, McAndrew, and Davis. During the course of the arbitration hearings, Young alleged that McAndrew had made even more offensive comments during the confrontation. Specifically, he alleged that McAndrew said, “get off the phone you black piece of shit.” Young further alleged that McAn-drew said, “get off the phone or I will hang up the phone for you, you black ass hole.”

The arbitrators ultimately denied Young’s appeal, and found that American had just cause to terminate his employment. Following the arbitrator’s decision, Young filed this action in the circuit court. After a period of discovery, American filed a motion for summary judgment, arguing that the circuit court should dismiss Young’s action primarily because he could not demonstrate that his conduct was similar to that of either White or McAndrew, and thus, American was entitled to judgment as a matter of law. The circuit court initially denied American’s motion for summary judgment. However, after American filed a motion for reconsideration of its original motion, the circuit court, without providing a written opinion explaining its rationale, reversed its original ruling and dismissed Young’s case.

DISCUSSION

At its core, this case involves determining whether a private company violated state and federal anti-discrimination law when it fired an African-American employee who admitted violating company policy during a confrontation with two white employees, where the white employees admitted participating in the confrontation, but did not specifically admit to violating company policy, despite the black employee’s allegations to the contrary. This court, of course, need not decide the difficult factual questions involved; they will be left to a jury to decide.

The central issue before this court is whether the record reveals that these employees were similarly situated to the extent that American’s firing of Young amounted to illegal discriminatory treatment, where American did not fire the two white employees involved in the same confrontation and who allegedly made offensive comments in violation of the “hate related” provision of Rule 32, but unlike Young, did not admit to such rule violations. More specifically, since this appeal involves a review of the trial court’s grant of summary judgment in favor of American, we may only consider the limited question of whether American was entitled to judgment as a matter of law, where Young has alleged that his firing amounted to disparate treatment, and thus, a violation of the law. Accordingly, Young argues that several factual issues remain, and thus, summary judgment was improper. Because we believe that important factual questions indeed remain in dispute, and should be decided by a jury, we reverse the trial court’s grant of summary judgment and remand for a trial on the merits.

Young brought his claim under the Missouri Human Rights Act (thé “Act”), Section 213.010 RSMo. (2000) et seq., which essentially provides, in pertinent part, that it is an unlawful employment practice in Missouri to “discharge any individual ... because of such individual’s race [or] color.... ” Id, at Section 213.055. Furthermore, pursuant to the Missouri Supreme Court’s decision in Midstate Oil Co., Inc. v. Missouri Com’n on Human Rights, 679 S.W.2d 842, 845-46 (Mo. banc 1984), Missouri courts must evaluate claims arising under the Act according to the methodology established by the U.S. Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Under the methodology established in McDonnell Douglas, courts hearing claims arising under Title VII of the Civil Rights Act of 1964 use the following “burden shifting” analysis: (1) the plaintiff must establish by a preponderance of the evidence a prima facie case of discrimination; (2) if the plaintiff carries this burden, then the burden shifts to the employer to articulate some legitimate, non-discriminatory reason for its conduct; and (3) if the employer satisfies this burden, then the burden shifts back to the plaintiff to show by a preponderance of the evidence that the employer’s articulated reasons are pre-textual. Midstate Oil Co., 679 S.W.2d at 845.

Finally, in order for an employee to make out a prima facie case for employment discrimination in the absence of direct or circumstantial proof, the employee must establish the following four elements: (1) that the employee is a member of a protected group; (2) that the employee met the legitimate expectations of his or her employer; (3) that the employee suffered an adverse action; and (4) that circumstances exist which give rise to an inference of discrimination. Wheeler v. Aventis Pharm., 360 F.3d 853, 857 (8th Cir.2004). Furthermore, many federal courts recognize that the proof required to establish a prima facie case varies in different factual situations. Boner v. Board of Comm’rs, 674 F.2d 693, 696 (8th Cir.1982).

In this case, American argued in its motion for summary judgment that it was entitled to judgment as a matter of law because Young failed to establish two of the four elements of his prima facie case of employment discrimination. First, American argued that Young failed to establish the second element: that he was qualified to perform his job; and, that he failed to establish the fourth element: that circumstances exist giving rise to an inference of discrimination. We address each element individually.

With regard to the second element of Young’s prima facie case, we find American’s argument that Young was not qualified to perform his job wholly without merit. In its brief, American argued that Young failed to establish this element essentially because he violated Rule 32 during the incident in question. However, our review of the relevant case law reveals that this rationale completely misses the mark. The relevant analysis focuses on the employee’s overall work record and general ability to perform their job duties, not whether the employee violated a company rule or policy on one occasion, such as in this case. In this case, American’s argument regarding the second element of Young’s prima facie case is without a basis.

Regarding the fourth element of Young’s prima facie case, American essentially argues that the facts and circumstances of this case simply do not give rise to an inference of intentional discrimination. Specifically, American argues that Young’s case fails because Young was not “similarly situated” to White and McAn-drew. Simply, Young’s conduct was substantially more serious than that of White and McAndrew, and thus, it justified more severe punishment.

We note that the fourth element of a plaintiffs prima facie case may be established with evidence of “actions by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a[n illegal] discriminatory criterion....’ ” Boner, 674 F.2d at 696 (quoting Fumco Construction Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978)).

In evaluating the merits of the fourth element, federal courts generally recognize that “instances of disparate treatment can support a claim of pretext,” but the plaintiff bears the burden of establishing that the employees are “similarly situated in all relevant respects.” Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir.1994) (emphasis added). Employees are “similarly situated” when they “are involved in or accused of the same or similar conduct and are disciplined in different ways.” Wheeler, 360 F.3d at 857 (8th Cir.2004). Furthermore, the test to determine whether two employees are similarly situated varies at each stage of the McDonnell Douglas analysis. Id. At the prima facie stage, such as here, the burden is “not onerous.” Id. (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).

In this case, the record clearly reveals that Young was punished more severely than either White or McAndrew. Furthermore, the record is clear that they were all involved in the same general incident. However, the following critical question remains: was Young’s conduct the same as or sufficiently similar to that of White or McAndrew, such that they were similarly situated under the law?

Based upon our review of the record, viewed in the light most favorable to Young, and by applying the low threshold of proof required at this stage of the proceeding, we believe that Young has established a prima facie case that he was similarly situated to White and McAndrew. This holding is premised upon our finding that Young presented sufficient evidence that either White or McAndrew, or both, violated the “hate related” provision of Rule 32 in making racially offensive comments to Young. Specifically, we find Young’s hand-written statement, dated 9 October 2002, particularly compelling. In this statement, Young alleged that McAn-drew told him to “hang up the [expletive deleted] phone.” Young further alleged that McAndrew said, “hang up the phone you peace a [sic] ‘shit.’ ” Finally, Young claimed that McAndrew used the term “black ass” as he was leaving the room. Regarding White, Young alleged that he not only used the term “N word” while explaining that he was offended by Young’s use of the term faggot, but also that he used the actual word during this exchange.

We believe Young’s allegations that White and McAndrew used words that, by any objective or subjective standard, would be highly offensive under Rule 32 to any reasonable African-American, effectively put American on notice that his conduct was similar enough to that of White or McAndrew to warrant similar treatment. We acknowledge American’s argument that Young was not similarly situated to White or McAndrew because Young actually admitted violating company policy, whereas neither White nor McAndrew admitted using these key words. Furthermore, we understand the difficult position American was in, as this is a very difficult case. Nevertheless, we find that Young made a preliminary showing that he satisfied the fourth element of his prima facie case.

Therefore, because we find that Young made out a prima facie case that he was similarly situated with White and McAndrew, we hold that American was not entitled to judgment as a matter of law. Furthermore, Young has argued that the trial court erred in granting summary judgment because there were important factual questions to be resolved. As we already noted, the overarching question is whether Young’s conduct during the incident was sufficiently similar to that of White and McAndrew to permit an inference of disparate treatment. Fact resolution remains as to at least the following questions: (1) did McAndrew say “hang up the phone you peace a [sic] ‘shit,’ ” and if so, did this violate the “hate related” provision of Rule 32; (2) did McAndrew use the term “black ass,” and if so, did this violate the “hate related” provision of Rule 32; (3) did White use the actual word to which the term “N word” refers, and if so, did this violate the “hate related” provision of Rule 32; and (4) did White’s admitted use of the term “N word” constitute a violation of the “hate related” provision of Rule 32. Because the answers to these important factual questions are dispositive of the ultimate legal question, summary judgment in favor of American was error.

CONCLUSION

Accordingly, because we believe factual questions remain in dispute that are dis-positive of the critical legal question in this case, we hold that the trial court’s grant of summary judgment was improper. Accordingly, we reverse the trial court’s grant of summary judgment in favor of American, and remand.

GARY M. GAERTNER, SR., P.J., and GEORGE W. DRAPER III, J., concur.

      . All statutory references are to RSMo. (2000), unless otherwise indicated.

      . This is a close case; if we had the trial court's analysis before us, we might conclude differently.

      . American conceded in its brief that Young satisfied elements 1 and 3 of his prima facie case, to wit: (1) that Young is a member of a protected class, i.e., he is an African American; and (3) that he suffered an adverse action, i.e., that his employment at American was terminated as a result of his conduct. We agree, and thus, we do not address these elements of Young's prima facie case.

      . See, e.g., Boner, 674 F.2d at 696-97 (holding that plaintiff black employee’s racial discrimination claim was meritless, in part, because plaintiff's "work record and [job] performance were unacceptable and simply would not improve ... [and plaintiff] could not, or would not perform his job adequately.”).

      . We note, however, that it is not for this court to decide whether White or McAndrew actually violated Rule 32. Rather, this is a factual question for the jury. We merely hold that Young established a prima facie case that his conduct was the same as or similar to that of White and McAndrew.


author: GLENN A. NORTON, Chief Judge.

text:
    Richard G. RAMSEY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85216.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 19, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Deborah Daniels, Richard Starnes (co-counsel), Jefferson City, MO, for respondent.
    Edward Thompson, St. Louis, MO, for appellant.
   OPINION

GLENN A. NORTON, Chief Judge.

Richard G. Ramsey appeals the judgment denying his motion for post-conviction relief under Rule 24.035 without an evidentiary hearing. We affirm.

I. BACKGROUND

Ramsey was charged with three counts of statutory sodomy in the first degree, three counts of incest, two counts of sexual misconduct in the first degree and twenty-five counts of child pornography. He pled guilty to all charges. During the plea hearing, the court asked several questions to determine whether Ramsey’s plea was voluntary and intelligent and whether his counsel provided him with effective assistance. Ramsey responded that he told counsel everything about his case and that counsel advised him of all of his legal rights and all of his possible defenses to the charges. He also stated that he was satisfied with his counsel, that no one threatened, intimidated, or forced him to plead guilty against his will and that he was pleading guilty voluntarily and of his own free will. He further stated that he believed he was better off pleading guilty than going to trial. The court accepted Ramsey’s guilty plea.

Ramsey then filed a pro se motion for post-conviction relief pursuant to Rule 24.035, alleging that counsel was ineffective for failing to move to suppress statements Ramsey made to the police and evidence obtained from his home. Ramsey claimed that through threats, intimidation and his total reliance on the expected expert and professional behavior of his counsel, the State was able to obtain a conviction that was otherwise unobtainable. In the amended motion filed by appointed appellate counsel, Ramsey added that plea counsel was ineffective in failing to inform him that once convicted he was required to register as a sex offender.

The motion court denied these claims without an evidentiary hearing. In its findings and conclusions, the court determined that the record conclusively refuted Ramsey’s claim regarding the motion to suppress and that the registration requirement was a collateral consequence of his plea and could not form the basis of post-conviction relief. This appeal follows.

II. DISCUSSION

We review the denial of a post-conviction motion under Rule 24.035 to determine whether the motion court’s findings of fact and conclusions of law were clearly erroneous. Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). The motion court’s findings and conclusions will be deemed clearly erroneous only if, after reviewing the record, this Court is left with the definite and firm impression that a mistake has been made. Id.

A. Failure to File Motion to Suppress

In his first and second points, Ramsey argues that counsel was ineffective in failing to advise him that his statement to police was coerced and that evidence seized from his home was illegally obtained. He contends that a competent attorney in similar circumstances would have advised him that the statement and the evidence could be suppressed and would have pursued a motion to suppress. Ramsey argues that because counsel failed to investigate the conditions under which his statement was made and the circumstances surrounding the search of his home, he believed he had no other option but to plead guilty.

A claim that counsel was ineffective for failing to file and pursue a motion to suppress is waived by the voluntary entry of a guilty plea. Steinle v. State, 861 S.W.2d 141, 144 (Mo.App. W.D.1993). In fact, a guilty plea renders a claim of ineffective assistance of counsel irrelevant except to the extent that is affects the volun-tariness and understanding with which the movant made his plea. Simmons v. State, 100 S.W.3d 143, 146 (Mo.App. E.D.2003). A plea must not only be a voluntary expression of the defendant’s choice, it must also be a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences of the act. State v. Hunter, 840 S,W.2d 850, 861 (Mo. banc 1992). Thus, if the record, conclusively showed that Ramsey was aware that he could move to suppress his statement to police or the evidence obtained in the search of his home, understood that by entering a plea of guilty he waived the right to file that motion and voluntarily entered a plea of guilty to the charges, then his claim was properly denied without an evidentiary hearing. See Steinle, 861 S.W.2d at 144; see also Simmons, 100 S.W.3d at 145 (movant only entitled to an evidentiary hearing if alleged facts warranting relief, which were not refuted by the record.)

Ramsey argues that the court’s inquiries at the plea hearing regarding counsel’s performance were too general and “bland” to conclusively refute his claim that he did not understand that he could move to suppress his statement or the evidence obtained from his home. While general inquiries about counsel’s performance may not be sufficient to refute the record in some circumstances, where the movant’s own allegations clearly refute the ineffective assistance claim, an evidentiary hearing is not required regardless of the broad scope of the plea court’s questions. See Morrison v. State, 65 S.W.3d 561 (Mo.App. W.D.2002).

In Morrison, the movant claimed that counsel was ineffective because he disregarded the movant’s requests for investigation and failed to prepare for trial. Id. at 563. The court agreed that the questions at the plea hearing were too broad to conclusively refute the ineffective assistance of counsel claims. Id. at 564. But the court noted that because the movant specifically alleged that he was aware his counsel had not contacted his co-defendants or asked that certain evidence be tested prior to his plea hearing, the record refuted his claims notwithstanding the broad questions. Id. at 564-65. Those circumstances distinguished the case from Buckner, v. State, where the record did not show that the movant possessed knowledge of his counsel’s failures at the time he entered his plea. Id. (citing 995 S.W.2d 47, 49-50 (Mo.App. W.D.1999)). Thus, because the movant could have raised questions about his counsel’s performance at the plea hearing, yet repeatedly expressed satisfaction with his counsel to the court and denied that he had been coerced to plead guilty, the motion court did not clearly err in denying his motion for post-conviction relief. Id. at 565.

Like the movant in Morrison, Ramsey specifically alleged in his pro se motion that he communicated with his plea counsel regarding his statement to the police and the seized evidence:

... [Counsel] was notified, in writing about the illegal arrest, in April 2000 and did nothing;
... [Counsel] was notified, by phone, about possible police misconduct during the questions of [Ramsey], in January 2000 and did nothing;
... [Counsel] was notified, in writing about possible police misconduct during the questioning of [Ramsey], in April 2000 and did nothing;
During the entire proceeding every affirmative action [Ramsey] wanted to take was countered by [his counsel].
When the evidentiary [sic] hearing [before his plea] was scheduled [his counsel] insisted that it be waived because the state had threatened additional charges if we (the defense) insisted on the hearing. It is [Ramsey’s] contention that no conviction would have been obtained if this hearing had been held since the “confession” was illegally obtained and all potential physical evidence was tainted by illegal searches and seizures and would have been suppressed.

The foregoing shows that Ramsey clearly was aware of the issues he claims his counsel failed to pursue prior to the plea hearing. Thus, like the movant in Morrison, Ramsey had ample opportunity to discuss his concerns about counsel during the plea hearing, yet repeatedly expressed his satisfaction with counsel’s performance. Accordingly, Ramsey’s claims are conclusively refuted by the record, and the court did not clearly err by denying those claims without an evidentiary hearing. Points I and II are denied.

B. Consequences of Plea

In his third point, Ramsey argues that he was denied effective assistance of counsel because counsel failed to advise him of section 589.400 RSMo 2000, the Missouri law requiring him to register as a sex offender. According to Ramsey, had counsel informed him of that law, he would not have pled guilty and would have insisted on a trial.

The trial court and counsel have a duty to inform the defendant of the direct consequences of pleading guilty, but not the collateral consequences. Huth v. State, 976 S.W.2d 514, 516 (Mo.App. E.D.1998). Failure of counsel to inform a mov-ant of all the collateral consequences of his guilty plea is not a sufficient basis for an ineffective assistance claim. Id. at 517. Direct consequences are those which definitely, immediately and largely automatically follow the entry of a plea of guilty. Id. at 516-17. The question is whether the movant knew of and understood the consequences of his plea. Id. at 517.

Relying on cases from other jurisdictions, the motion court found that registration as a sex offender is a collateral consequence of a guilty plea. See Peterson v. State, 988 P.2d 109, 115 (Alaska Ct.App.1999); People v. Montaine, 7 P.3d 1065, 1067 (Colo.Ct.App.1999); Ray v. State, 133 Idaho 96, 982 P.2d 931, 936 (Id.1999). Ramsey argues that, notwithstanding the cases the motion court cites, other jurisdictions either judicially or legislatively require pre-plea advisement in all cases where sex offender registration may be required, which he argues effectively means that consequence is direct. See, e.g., State v. Breiner, 562 N.W.2d 565, 567-68 (N.D.1997) (finding that the registration requirement imposes grave, and even onerous, additional punishment and that the North Dakota legislature clearly imposed a duty on the court to inform a pleading defendant about that requirement); but see State v. Burr, 598 N.W.2d 147, 157, 158-59 (N.D.1999) (holding that the North Dakota registration statute is regulatory and does not violate the ex post facto clause and overruling Breiner to the extent it found the statute punitive).

Although we have found no Missouri case addressing the specific issue of whether registration as a sex offender is a direct or collateral consequence of a guilty plea, we find a Missouri Supreme Court case discussing the nature of registration instructive.

In In re R.W., the plaintiff sought a declaratory judgment and injunctive relief to prevent enforcement of Missouri’s sex offender registration statutes on the basis that, among other reasons, the imposition of the registration requirement on offenders who receive a suspended imposition of sentence constitutes an invalid ex post fac-to law. 168 S.W.3d 65, 67 (Mo. banc 2005). The Court stated that Missouri registration statutes do not clearly express the General Assembly’s intent to make the registration statutes civil or criminal. Id. at 69. The Court then stated that, while there is evidence that the registration statutes were intended to be criminal and punitive insofar as they are located under the title dealing with “Crimes and Punishment,” because the statutes are an incident of the State’s power to protect the health and safety of its citizens, the statutes “evi-dene[e] an intent to exercise the State’s regulatory power, and not a purpose to add to the punishment.” Id.

To determine whether the registration statutes were nevertheless sufficiently punitive in effect to constitute retroactive punishment, the Court considered several factors, including whether registration requirements historically have been regarded as punishment, whether they promote the traditional aims of punishment, whether they have a rational connection to a non-punitive purpose, or whether they are excessive with respect to that purpose. Id. at 69-70. The Court concluded that registration is a method of making available relevant and necessary information to law enforcement, rather than a method of punishment. Id. at 69. Although registration statutes may deter future crimes, the mere presence of a deterrent effect does not establish that registration constitutes a punishment because any number of governmental programs might deter crime without imposing punishment. Id. at 70. In addition, the Court stated that the registration statutes also serve the regulatory purpose of assisting authorities with investigation of sex crimes. Id. The Court found that the registration requirement advances the legitimate, non-punitive purpose of public safety and protecting children from sex offenders and that the registration statutes were not excessive in relation to the regulatory purposes. Id. at 70. The Court rejected the plaintiffs ex post facto challenge and held that, while the registration statutes have both punitive, and regulatory attributes, on balance the thrust of the registration and notification requirements are civil and regulatory in nature. Id.

Although R.W. did not address the precise issue presented in this case, the Court’s analysis of the registration statutes as civil and regulatory in nature leads us to agree with those jurisdictions that have held that registration as a sex offender is a collateral, rather than a direct, consequence of a guilty plea. Specifically, in State v. Ward, cited by our Supreme Court in R.W., the Washington Supreme Court referred to its analysis of whether a registration requirement violated the ex post facto clause when deciding whether the requirement was a direct or collateral consequence of pleading guilty: “[a]s we concluded under our ex post facto analysis, registration as a sex offender does not alter the standard of punishment.” 123 Wash.2d 488, 869 P.2d 1062, 1076 (1994). The court further found that registration was not a direct consequence because it does not enhance a defendant’s sentence or punishment. Id.

Similarly, because R.W. held that sex offender registration is more regulatory than punitive, we hold that the registration requirement is a collateral consequence of a guilty plea. Although registration definitely, immediately and largely automatically follows the entry of a guilty plea in this case, because it is not punitive, it does not enhance Ramsey’s sentence or affect the range of his punishment. As the Western District observed in Weston v. State, the test for determining whether a consequence is direct or collateral was derived from an Eighth Circuit case that concluded that “ ‘[t]he distinction between “direct” and “collateral” consequences of a plea ... turns on whether the result represents a definite, immediate and largely automatic effect on the range of punishment.’ 2 S.W.3d 111, 116 n. 1 (Mo.App. W.D.1999) (quoting George v. Black, 732 F.2d 108, 110 (8th Cir.1984)) (emphasis added). Under this more restrictive standard focusing on the range of punishment and not solely on any effect following a guilty plea, the registration requirement is collateral because it is not punishment. While we do not intend to otherwise restrict the standard for whether a consequence is direct or collateral, we find that the more restrictive standard should apply where, as here, the consequence is non-punitive and regulatory.

The motion court did not clearly err in denying Ramsey’s claim based on counsel’s failure to inform him of his duty to register. Point III is denied.

III. CONCLUSION

The judgment is affirmed.

LAWRENCE E. MOONEY, J. and BOOKER T. SHAW, J., concurring.

      . All references to rules are to the Missouri Supreme Court Rules (2005).

      . The court granted Ramsey’s other claims regarding the insufficient factual basis for the incest charges.

      . All statutory references are to RSMo 2000.

      . The State also cites to State v. Larson, in which the Court addressed whether a defendant would suffer irreparable harm absent a writ of prohibition requiring the trial court to allow him to withdraw his plea. 79 S.W.3d 891, 894 (Mo. banc 2002). The Court explained that even though imposition of the defendant’s sentence was suspended, he nonetheless was subject to a number of "punitive, collateral consequences,” specifically including that he must register as a sex offender.' Id. Given the limited context in which the Court described registration as "collateral,” we decline to rely on that statement in our analysis.

      . This Court is aware that, under the registration statute, courts are required to inform sex offenders being released from confinement, released on probation, or discharged from a fine of their possible duty to register. See section 589.405; see also section 589.403 (imposing same requirement on correctional facilities and mental health institutions). That notice requirement does not, however, impact the analysis of whether registration is a direct or collateral consequence of a guilty plea or change our conclusion that because it is primarily regulatory under R.W., registration is not a direct consequence about which a defendant must be notified prior to his plea. Had our legislature also mandated pre-plea advisement, as other state legislatures have, that analysis might be affected and the conclusion might be different. Whether such pre-plea advisement should be incorporated in Supreme Court Rules is obviously a matter for the Supreme Court's deliberation.


text:
    STATE of Missouri, Respondent, v. Calvin HORTON, Appellant.
    No. ED 85388.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 13, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 24, 2006.
    Application for Transfer Denied Feb. 28, 2006.

      Margaret M. Johnston, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Jefferson City, MO, for respondent.
    Before: NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Calvin Horton (“Defendant”) appeals the judgment entered upon his convictions by a jury for robbery in the first degree and armed criminal action. The trial court sentenced him to ten years imprisonment on the first degree robbery charge and seven years imprisonment on the armed criminal action charge. The court ordered the sentences to be served consecutively.

In his sole point on appeal Defendant claims the trial court plainly erred when it refused to inform the jury that defendant would have to serve a minimum prison term of eighty-five percent of his sentence before he could be considered for parole. Defendant argues that in a bifurcated trial, the jury should be informed of the minimum term of prison that must be served before a defendant is eligible for parole. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).