author: /s/ Joseph E. Lambert Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Petitioner, v. Barry Sloan SMITH (KBA Member No. 83508) Respondent.
    No. 2005-SC-0204-KB.
    Supreme Court of Kentucky.
    June 16, 2005.
   OPINION AND ORDER

The Kentucky Bar Association (KBA) brought this action against Respondent, Barry Sloan Smith, for violations of SCR 3.130-8.3(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); SCR 3.130-1.3 (failure to act with reasonable diligence and promptness in representing a client); SCR 3.130-3.2 (failure to make reasonable efforts to expedite litigation consistent with the client’s interests); and SCR 3.130-3.4(c) (knowingly and intentionally disobeying an obligation under the rules of a tribunal).

The foregoing ethical violations arose in connection with Respondent’s representation of Ruth Thrasher in a personal injury lawsuit. On September 26, 2001, Thrasher purchased a can of Mountain Dew soda. According to Thrasher, the can contained an industrial staple that became lodged in her throat when she attempted to drink the contents. She thereafter retained Respondent to initiate an action against the manufacturer and bottler of the product, Bottling Group LLC, d/b/a Pepsi Bottling Group (Pepsi), to recover her damages. Respondent filed a Complaint in the Clinton Circuit Court, which Pepsi removed to the United States District Court for the Western District of Kentucky.

The District Court held a scheduling conference in December 2002, and set January 3, 2003, as the deadline for disclosures pursuant to Rule 26 of the Federal Rules of Civil Procedure. Respondent failed to make the required disclosures. On January 29, Pepsi filed a motion to dismiss. Though the Court waited for the Respondent to file a response to the motion, none was forthcoming. On March 24, 2003, the Court dismissed the action.

Throughout the remaining months of 2003 and January of 2004 Respondent made numerous oral representations to Thrasher supported by a number of contrived documents and orders all designed to make her believe that her case was either about to be settled or tried. The first document he titled, “Response to notice of Appeal,” wherein he alluded to a contrived appeal filed by Pepsi. The Response was signed by Respondent and certified by him to have been served on Pepsi’s counsel on September 11, 2003. Pepsi’s counsel never received the document. The next document was titled “Offer of Settlement,” wherein Plaintiff offered to settle for $2,000,000.00. The document contained a number of contrived stipulations. To follow this “Offer of Settlement” Respondent drafted a document titled “Memorandum,” which purported to be Pepsi’s response to the proposed “Offer of Settlement.” Respondent also created two “Scheduling Orders,” one in which he forged the signature of Judge Thomas B. Russell. The first “Scheduling Order” placed the parties on terms to conclude a settlement by December 12, 2003. The second “Scheduling Order” set the case for trial on January 15, 2004. Finally, to comply with his own “Scheduling Order” he drafted an “Amended Complaint,” which, although unsigned, included a service date of January 6, 2004. This “Amended Complaint” alleged bad faith on the part of Pepsi respecting negotiations with the Plaintiff.

Smith directed his secretary to call Thrasher on January 13 and tell her that the attorney for Pepsi had withdrawn from the case. Thrasher went to Smith’s office on January 14, 2004, where the Respondent pretended to call Judge Russell in her presence. Thrasher became suspicious and began investigating her case. She called Pepsi’s attorney at which time she learned that her suit had been dismissed nearly ten months earlier on March 24, 2003. Thrasher wrote Judge Russell explaining how she had been deceived. The Court set a hearing in the matter and ordered the Respondent, Thrasher, and Pepsi’s counsel to attend. After Respondent notified the Court that he could not attend the hearing, the Court rescheduled. Again, Respondent notified the Court that he could not attend the hearing. The Court then relayed to Respondent that his failure to attend would result in his being deemed in contempt. Respondent did not appear at the hearing. The Court determined that Thrasher’s testimony was credible and directed Respondent to appear at Bowling Green on June 2, 2004, to show cause why he had failed to comply with the Court’s orders. Respondent did not appear and the Court entered an Order on June 7, 2003, finding Respondent in contempt and fining him $5,000.00. The Court, in a separate order, sustained Thrasher’s pro se motion to reinstate her action and allow her time to retain new counsel.

Thrasher filed a bar complaint against Respondent on April 5, 2004. Respondent filed a response on June 21, 2004, admitting that he committed errors, and explaining that he “did not fully acquaint and educate [himself] as to the practice in Federal Courts.” On October 4, 2004, the Inquiry Commission issued a four count Charge against Respondent. He has not answered the Charge.

A review of Respondent’s record demonstrates a casual indifference to the needs of his clients and an alarming disrespect for the courts. In 1994, Respondent was suspended from practice for noncompliance with CLE requirements. While suspended, he continued to practice law. He was paid $400.00 to settle an estate that he failed to settle. After discovering that Respondent had been suspended, his clients filed a Bar Complaint against him resulting in a second suspension following the CLE suspension. He also appeared as counsel at a pretrial conference in a matter in Taylor County. After being questioned by the judge, he conveyed that the appropriate reinstatement documents had been filed, although the documents had not been filed. He never responded to the Inquiry Tribunal’s Complaint against him. In May 1995, a three count Charge was issued relating to Respondent’s practicing on a suspended license and his failure to respond to the Complaint. On June 13, 1995, Respondent submitted a response to the Charge admitting all allegations, although denying that he intentionally misled anyone. On January 16, 1996, this Court ordered Respondent suspended for eighteen months. Ky. Bar Ass’n v. Smith, 913 S.W.2d 317 (Ky.1996). On November 19, 1998, we reinstated Respondent to the practice of law, noting that he had taken steps in the right direction by complying with CLE requirements, making satisfactory arrangements with his creditors, and indicating that he would attend seminars to improve his business management skills. Smith v. Ky. Bar Ass’n, 979 S.W.2d 111, 112 (Ky.1998).

Regrettably, Respondent has not changed. The allegations of this Charge, a Charge to which Respondent has not responded, are serious. At their core, they involve incompetence, lack of diligence, fraud, deception, and forgery. Accordingly, IT IS HEREBY ORDERED that:

1. Respondent, Barry Sloan Smith, is hereby permanently disbarred from the practice of law.
2. In accordance with SCR 3.450, Respondent is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $626.38, and for which execution may issue from this Court upon finality of this Opinion and Order.
3.If he has not already done so, in accordance with SCR 3.390, Respondent shall, within ten (10) days from the entry of this Opinion and Order: (a) to the extent possible, cancel and cease any advertising activities in which he is engaged; and (b) notify, in writing, all courts in which he may have matters pending, and all clients for whom he is actively involved, of his inability to provide further legal services, and furnish the Director of the Kentucky Bar Association with a copy of all such letters.

LAMBERT, C.J.; COOPER, GRAVES, JOHNSTONE, SCOTT, and WINTERSHEIMER, JJ., sitting.

All concur.

ENTERED: June 16,2005.

/s/ Joseph E. Lambert Chief Justice


source: Caselaw Access Project

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Tammie Jones SIVALLS, Respondent.
    No. 2005-SC-0216-KB.
    Supreme Court of Kentucky.
    June 16, 2005.
   OPINION AND ORDER

On January 14, 2005, the Kentucky Bar Association Board of Governors reviewed fifteen files regarding Respondent, Tammie Jones Sivalls, whose bar roster address is 1101 Oriole Avenue, Mount Sterling, Kentucky. While a full recitation of the facts of all fifteen files is unnecessary, a brief summary of the charges is worthwhile. Thirteen of the files arise from Respondent’s mishandling of thirteen separate clients. A common thread of misconduct is apparent: each arises initially from Respondent’s lack of diligence and her failure to communicate with her clients. Because she has not responded to any of the fifteen complaints issued by the Inquiry Commission, each file also contains a violation of SCR 3.130 — 8.1(b), failure to respond to a disciplinary authority. Many of the files also involve Respondent’s failure to notify clients of termination of representation, her failure to protect her clients’ interests, and conduct reflecting adversely on Respondent’s honesty, trustworthiness, or fitness as an attorney.

The remaining two files involve the most egregious conduct. The first involves Respondent’s representation in a personal injury lawsuit on behalf of two clients; she served as local co-counsel in the matter with William Driscoll. The representation came to a close when a settlement was reached with Allstate Insurance Company, who later issued checks and sent them to Mr. Driscoll. Mr. Driscoll forwarded the checks to Respondent for endorsement by the clients, with the intention that Respondent would return the checks for deposit into Mr. Driscoll’s escrow account. For some two months thereafter, Mr. Driscoll was unable to contact Respondent. Through correspondence with the insurance company, Mr. Driscoll learned that one of the settlement checks had cleared the bank and that his own signature had been forged (and misspelled) on the back of that check. In the meantime, Respondent returned the funds with respect to one of the clients, but retained the proceeds with respect to the other client. Additionally, Mr. Driscoll was entitled to a portion of the settlement proceeds as a contingency fee.

A charge was issued against Respondent, who failed to respond. Thereafter, Respondent was charged by the Inquiry Commission for violation of SCR 3.130-1.3 (lack of diligence); SCR 3.130-1.4(a) (failure to inform a client); SCR 3.130-1.15(b) (failure to deliver funds to a client); SCR 3.130-1.16(d) (failure to notify client of termination of representation and to protect client’s interest); SCR 3.130-8.1(b) (failure to respond to a disciplinary authority); SCR 3.130-8.3(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); SCR 3.130-8.3(b) (committing a criminal act reflecting adversely on honesty, trustworthiness or fitness of attorney).

The final complaint against Respondent was initiated based on criminal charges. Respondent was indicted by a Montgomery County Grand Jury on two felony counts: one count of criminal possession of a forged instrument in the first degree (KRS 516.050), and one count of theft by failure to make required disposition of property (KRS 514.070). The charges arose when Respondent converted, for her own use, the proceeds of a check from the U.S. Government to her client in the amount of $26,922.40. Respondent pled guilty to these charges and was granted pretrial diversion. After making restitution to her victim, Respondent was also ordered to complete 120 hours of community service and to pay a fine of $1000. A charge was issued against Respondent by the Inquiry Commission, but again Respondent failed to respond. In this file, Respondent was charged with violations of SCR 3.130-8.3(b) (committing a criminal act reflecting adversely on honesty, trustworthiness or fitness as a lawyer); SCR 3.130-8.1(b) (failure to respond to a disciplinary authority); and SCR 3.130-8.3(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation).

The following is a summation of the charges against Respondent in all fifteen files:

(1) SCR 3.130-1.3 (lack of diligence): thirteen counts;
(2) SCR 3.130-1.4(a) (failure to inform client): thirteen counts;
(3) SCR 3.130-8.1(b) (failure to respond to disciplinary authority): fifteen counts;
(4) SCR 3.130-1.16(d) (failure to notify client of termination of representation and failure to protect client’s interests): twelve counts;
(5) SCR 3.130-8.3(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation): eight counts;
(6) SCR 3.130~8.3(b) (committing a criminal act reflecting adversely on honesty, trustworthiness, or fitness of attorney): two counts;
(7) SCR 3.130-1.15(b) (failure to deliver funds to a client): four counts;
(8) SCR 3.130-3.4(c) (knowingly or intentionally disobeying an obligation under rules of a tribunal): one count; and
(9) SCR 3.130-1.15(a) (failure to separate client’s property from lawyer’s own property): one count.

Because Respondent failed to appear or respond to any of the multiple allegations levied against her, the Board of Governors considered the matters as default files pursuant to SCR 3.210. “When an attorney fails to respond to a complaint, the allegation of the complaint may be taken as confessed.” Kentucky Bar Association v. Roney, 862 S.W.2d 315, 317 (Ky.1993). The Kentucky Bar Association Board of Governors reviewed all of the fifteen files and made findings of facts, conclusions of law, and recommendations. The Board of Governors unanimously found her guilty of each of the sixty-nine counts contained in the fifteen files brought before it.

Following lengthy consideration of the appropriate degree of discipline, the Board of Governors unanimously recommended Respondent’s permanent disbarment from the practice of law in the Commonwealth of Kentucky. This Court has also carefully reviewed the matter. The files, when considered together, reveal a continuous pattern of dishonesty and unfitness as an attorney spanning over two years. Several involve grievous acts of fraud, deceit, and criminal conduct. Also, we note Respondent’s failure to address any of the allegations against her, or to respond in any way to the Inquiry Commission. For these reasons, we agree with the recommendation of the Board of Governors that Respondent be permanently disbarred from the practice of law.

WHEREFORE, IT IS ORDERED that:

(1) Respondent, Tammie Jones Sivalls, be, and she is hereby permanently disbarred from the practice of law in the Commonwealth of Kentucky. .She shall not be permitted to apply for reinstatement of her license to practice law. The period of disbarment shall commence on the date of the entry of this Opinion and Order.

(2) Pursuant to SCR 3.890, Respondent shall notify, in writing, all courts in the Commonwealth of Kentucky in which she may have matters pending and all clients of her inability to provide further legal services, and provide the Director of the KB A with a copy of all such letters. Notification must be furnished within ten (10) days from the entry of this Opinion and Order.

(8) Respondent is further ordered to pay the costs associated with this proceeding in the amount of $2,207.72, for which execution may issue upon finality of this Opinion and Order.

LAMBERT, C.J.; COOPER, GRAVES, JOHNSTONE, SCOTT, and WINTERSHEIMER, JJ., sitting.

All concur.

Entered: June 16, 2005.

/s/ Joseph E. Lambert Chief Justice


author: MARY R. RUSSELL, Judge.

text:
    SANGAMON ASSOCIATES, LTD., et al., Appellants, v. The CARPENTER 1985 FAMILY PARTNERSHIP, LTD., et al., Respondents.
    No. SC 86476.
    Supreme Court of Missouri, En Banc.
    May 31, 2005.
    As Modified on Denial of Rehearing July 12, 2005.

      Frederick H. Riesmeyer, II, William P. Denning, Kansas City, MO, for Appellants.

      Rhonda E. Smiley, Kansas City, MO, W. Edward Reeves, Caruthersville, MO, for Respondents.
   MARY R. RUSSELL, Judge.

Two partners in a real estate venture fell into disagreement resulting in a court-ordered partition sale of their jointly-held property. The only bid at the public sale was made by one of the partners. The trial court, finding the bid to be grossly inadequate, set aside the sale and encouraged the partners to settle. Over two years after the public sale, the bidding partner offered to increase his bid, and over the objection of the non-bidding partner, the trial court confirmed the public sale and increased the sale price to the proposed amount without conducting another public sale.

The non-bidding partner argues that the trial court erred in entering the final judgment of partition of the property in that it did not follow the statutory requirements for partition sales. After opinion by the Court of Appeals, Western District, this Court granted transfer. Mo. Const, art. V, sec. 10. This Court reverses the judgment on the partition claim, affirms the judgment in all other respects, and remands the case.

I. Facts

The late Allan R. Carpenter (“Carpenter”) and Dale E. Fredericks (“Sanga-mon”) formed Broadway-Washington Associates (“BWA”), a limited partnership, in 1985 to acquire, own, and develop real estate in downtown Kansas City. The parcel that is the subject of this case was a surface parking lot jointly owned by the partners, with Carpenter having a 90% interest and Sangamon having a 10% interest.

Disputes arose between the partners, and Sangamon filed a twenty-two count petition that included direct and derivative claims for appointment of a receiver, breach of fiduciary duty, conversion, and constructive trust. The petition named Carpenter and other partnerships and entities involved with the BWA property as defendants. In response Carpenter raised two counterclaims, including a request for partition of the jointly-owned property.

The parties agreed that the property should be partitioned by sale, rather than partitioned in kind. As a result, the trial court entered an interlocutory order of partition and order of sale ordering a public sale pursuant to Rule 96. At the sale, Carpenter was the only bidder, bidding $3.04 per square foot. Sangamon subsequently filed a motion to have the sale set aside because of “gross inadequacy of price” because it claimed the property was worth approximately $100 per square foot.

The trial court set aside its interlocutory order of partition and sale in January 2000, finding that “the sale price at the ... partition sale on the courthouse steps [was] so grossly inadequate as to ‘shock the conscience of the Court, raise a presumption of fraud, and amount to a sacrifice,’ such that the sale must be set aside and not confirmed.” It ordered a partition in kind of the property because “the dynamics concerning a judicial sale [had] so changed since initially ordered.”

However, before the trial court confirmed the partition in kind and entered a final order, it encouraged the parties to settle. During a settlement-oriented status conference held over two years after the public sale, Carpenter offered to increase its bid from the public sale to $32 per square foot, almost 10 times its original bid amount. The trial court ultimately entered a final judgment and order of sale, setting aside the interlocutory order for partition in kind and reinstating the original order for partition by sale. In doing so, it also accepted Carpenter’s increased bid of $32 per square foot and confirmed the public sale over Sangamon’s objection. The trial court provided no legal or factual basis for this action. When the trial court entered a final judgment on the partition claim, it entered a final judgment in favor of Carpenter on the claims for appointment of a receiver, breach of fiduciary duty, conversion, and constructive trust, which Sangamon now appeals.

II. Standard of Review

“[T]he decree or judgment of the trial court will be sustained ... unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). A judgment should be reversed as being against the weight of the evidence with caution and with a film belief that the decree or judgment is wrong. Id.

III. Partition Action

Sangamon argues that the trial court erred in entering the final judgment of partition of the jointly-owned property because it failed to follow the procedures established in Rule 96 and chapter 528, RSMo 2000, for conducting a partition sale. Sangamon also argues that Carpenter is barred from receiving the equitable remedy of partition because of the doctrine of unclean hands in that Carpenter engaged in wrongful conduct and self-dealing with respect to this property.

A. Non-Compliance with Statutory Requirements

Sangamon contends that in entering a final judgment on the partition claim and accepting Carpenter’s increased bid from the settlement conference the trial court conducted what amounted to a “private sale” in violation of Rule 96 and chapter 528.

An owner of property held in tenancy in common may bring an action for partition of the jointly-owned property. Sec. 528.030; Rule 96.01. Partition sales are strictly statutory and “may be effected only in accordance with the procedures set forth in Rule 96 and Chapter 528.” Darrington v. George, 982 S.W.2d 823, 825 (Mo.App.1998). Section 528.590 requires that all property subject to partition sale be sold by a court-appointed commissioner or by a sheriff at a public auction on the courthouse steps.

After a public sale is conducted, the confirmation or rejection of the sale is within the sound discretion of the trial court. Borchers v. Borchers, 352 Mo. 601, 179 S.W.2d 8, 12 (1944). This decision will not be disturbed on appeal unless there is a manifest abuse of discretion. DiLeo v. Hunter, 505 S.W.2d 112, 114 (Mo.App.1974). Inadequacy of price alone is not a sufficient ground for refusing to confirm a public sale, unless the inadequacy is “so gross as to raise the presumption of fraud.” Borchers, 179 S.W.2d at 12. A sale can also be set aside if the price amounts to a “sacrifice.” Koester v. Koester, 543 S.W.2d 51, 55 (Mo.App.1976).

The trial court correctly set aside the partition sale because the price of $3.04 per square foot was so grossly inadequate as to “raise the presumption of fraud” and amounted to a “sacrifice.” Carpenter had listed the property for sale with a broker for the price of $100 per square foot. The bid of $3.04 per square foot was also well below the prevailing market values for similar property in downtown Kansas City. Prior to the partition action, Carpenter had rejected bids in the amounts of $34 and $42 per square foot, describing them as “low ball offers” and stating that he did not believe that those buyers were genuinely interested in purchasing the property. He testified that a reasonable offer would be “something in excess” of $47 per square foot. The evidence demonstrates that the trial court did not abuse its discretion in setting aside the public sale.

After the trial court set aside the sale, it should have ordered a new public sale. Instead, the trial court accepted the bid of $32 per square foot proposed by Carpenter and entered a final judgment on the partition claim. The statutory requirements do not give the trial court the authority to amend the price for property sold by a public partition sale after the sale is held. See secs. 528.010 to 528.640; Rule 96. The price for such property can only be amended through a new public sale. By “accepting” Carpenter’s bid of $32 per square foot two years after the original sale without conducting a public sale, the trial court essentially conducted a private sale of the property.

Carpenter argues that the $32 per square foot price was an amended bid for the $3.04 bid at the public sale. By allowing the bid to be privately amended two years after the public sale, the public sale became a subterfuge for the private sale. This is directly contrary to the requirements of Rule 96 and chapter 528, which state that property partitioned should be sold at a public sale. Because the property here was sold by what amounted to a private sale, the trial court erred in amending the sale price.

This Court reverses the judgment on the partition claim affirming the public sale for the modified amount of $32 per square foot, in that the trial court erroneously applied the law governing partition actions. The deed in partition is set aside, and this case is remanded for further proceedings in accordance with the requirements of Rule 96 and chapter 528 and this Court’s opinion.

B. Unclean Hands Defense

Sangamon argues that Carpenter is not entitled to the equitable remedy of partition because the defense of unclean hands applies and Carpenter acted wrongfully with respect to the property. Sanga-mon alleges that Carpenter refused to pursue opportunities to sell the property and then benefited from his wrongful actions “by purchasing the land through partition at a price so low it shocked the Trial Court’s conscience.”

Partition is an equitable remedy. Sec. 528.010. The doctrine of unclean hands is a defense that bars one who has acted wrongfully with respect to the subject of the suit from obtaining an equitable remedy. Karpierz v. Easley, 68 S.W.3d 565, 572 (Mo.App.2002). This doctrine should be applied when it promotes right and justice by considering all of the facts and circumstances of a particular case. Durwood v. Dubinsky, 361 S.W.2d 779, 791 (Mo.1962). Further, courts have stated that the doctrine of unclean hands is “not one of absolutes” and can be used “in the discretion of a court of equity.” Nelson v. Emmert, 105 S.W.3d 563, 568 (Mo.App.2003).

This Court agrees with the trial court’s finding that there was insufficient evidence of unclean hands.

IV.Appointment of a Receiver

Sangamon argues that the trial court’s denial of its request for the appointment of a receiver was against the weight of the evidence. It argues that this Court should appoint a receiver pursuant to Rule 68.02 to sell the property because a receiver is necessary to protect the jointly-owned property. Sangamon alleges that Carpenter engaged in several instances of misconduct while acting as managing partner, including “engaging in extensive self-dealing, excluding other general partners from partnership affairs, failing to disclose material partnership information, and secretly suing his own partnership to recover monies which were the subject of this underlying litigation.”

Rule 68.02(a) states:

Whenever in a pending legal or equitable proceeding it appears to the court that a receiver is necessary to keep, preserve and protect any business, business interest or property ... the court may appoint a receiver whose duty it shall be to keep, preserve and protect ... that which the receiver is ordered to take into the receiver’s charge.

“[Ajbsent threatened destruction or dissipation of the property, or where there is no good cause to believe that benefit would result from the appointment of a receiver, then the court should decline to make such an appointment.” Lynch v. Lynch, 277 S.W.2d 692, 694 (Mo.App.1955) (emphasis omitted). The power to appoint a receiver is within the sound discretion of the trial court, and “[a] receiver should be appointed only when the court is satisfied that the appointment will promote the interests of one or both parties, that it will prevent manifest wrong, imminently impending, and that the injury resulting will not be greater than the injury sought to be averted.” Id. (emphasis omitted).

Sangamon does not state a sufficient basis to justify the appointment of a receiver. The record does not reflect that the appointment of a receiver was necessary, and the trial court exercised its discretion in denying the request for the appointment. This Court affirms the trial court’s denial of Sangamon’s request to appoint a receiver.

V.Partnership Claims

Sangamon argues that the trial court erred in entering judgment in favor of Carpenter on the claims for breach of fiduciary duty, conversion,' and constructive trust because its judgment was against the weight of the evidence. San-gamon claims that the evidence established that Carpenter “engaged in extensive self-dealing, excluded [Sangamon] from partnership affairs, refused to pay monies due to [Sangamon] and refused to cooperate in attempts to sell the property.”

This Court finds that there was sufficient evidence upon which the trial court could find for Carpenter on these claims. This Court affirms the judgment of the trial court for Carpenter on the claims for breach of fiduciary duty, conversion, and constructive trust.

VI.Conclusion

The trial court’s judgment is affirmed in part and reversed in part, and the case is remanded.

WHITE, C.J., WOLFF, PRICE, TEITELMAN and LIMBAUGH, JJ., and CALVIN, Sp.J., concur.

STITH, J., not participating.

      . There are numerous parties and business entities involved in this litigation. A detailed explanation of their relationships is not relevant to the disposition of this case. For purposes of simplicity, Allan R. Carpenter and his business entities will be referred to as "Carpenter,” and Dale E. Fredericks and his business entities will be referred to as "Sanga-mon.”

      . The judgment on the remaining partnership claims is not being appealed.

      . All references are to RSMo 2000 unless otherwise indicated.


author: RONNIE L. WHITE, Chief Justice.

text:
    State Ex Rel. Diana GOLDEN, Relator, v. The Honorable William C. CRAWFORD, Respondent.
    No. SC 86412.
    Supreme Court of Missouri, En Banc.
    May 31, 2005.
    Motion to Modify Denied July 12, 2005.
    John S. Dolence, Jeffrey W. Heil, Gary C. Lentz, Joplin, for relator.
    Glenn R. Gulick, Jr., Brad G. Bishop, Ron E. Mitchell, Joplin, for respondent.
   ORIGINAL PROCEEDING IN PROHIBITION

RONNIE L. WHITE, Chief Justice.

I.

Relator, Diana Golden, a defendant in an underlying wrongful death action, seeks a writ of prohibition ordering Respondent to vacate his April 6, 2004 order denying her motion for summary judgment and ordering Respondent to sustain her motion. This Court issued a preliminary writ on December 21, 2004, prohibiting the trial court from taking any further action in this case until further order of this Court. The preliminary writ is quashed.

II.

On March 31, 2002, Relator, while working as a 911 operator for the City of Joplin, received a call reporting that a man was lying in the middle of the street. The caller reported the location of the man as being on Hill Street, which was located between High Street and Michigan Street. Based upon her personal knowledge of the area, and without confirming the location on a map, Relator recorded the location of the man to be west of the intersection of Hill and Michigan, towards the direction of High Street. In fact, High Street was one block east of Michigan Street and the man’s location was east of the Hill-Michigan intersection, not west. A police officer was dispatched to the scene based upon Relator’s directions.

The officer responding to the dispatch approached the intersection from the south, and as he looked west, the car in front of him turned east running over the man. Ultimately, the man died from the injuries he sustained. His father brought a wrongful death action against the driver who ran over the man, the Relator, and the 911 dispatcher. Following discovery, Relator filed a motion for summary judgment alleging she was immune from liability under both statutory and common law. Respondent denied the motion and this Court, upon Relator’s application, issued its preliminary writ. This Court has jurisdiction; Mo. Const, article V, section 4.

III.

Prohibition, while being a discretionary writ, may be appropriate to prevent unnecessary, inconvenient, and expensive litigation. Prohibition is particularly appropriate in a case where the facts are uncontested and a party has an absolute defense of immunity from suit.

Relator claims that she is immune from suit by the official immunity or public duty doctrine. Relator also argues that section 190.307, eliminating civil liability for employees of an emergency system with the exception of instances of gross negligence, augments the official immunity doctrine extending her additional immunity. Relator further asserts that even if it is determined that section 190.307 supercedes the common law immunity doctrine, the plaintiff failed to allege facts of wanton and willful misconduct to substantiate any claim of gross negligence pursuant to section 190.307. Consequently, this case turns on which, or if both, of the immunity doctrines apply to the Relator, necessitating the need for this Court to construe section 190.307.

“The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to the intent if possible, and to consider the words in their plain and ordinary meaning.” “Our legislature has frequently enacted immunity statutes, limiting rights of action which the common law recognizes.”

Section 190.307 provides:

1. No public agency or public safety agency, nor any officer, agent or employee of any public agency, shall be liable for any civil damages as a result of any act or omission except willful and wanton misconduct or gross negligence, in connection with developing, adopting, operating or implementing any plan or system required by sections 190.300 to 190.340.
2. No person who gives emergency instructions through a system established pursuant to sections 190.300 to 190.340 to persons rendering services in an emergency at another location, nor any persons following such instructions in rendering such services, shall be liable for any civil damages as a result of issuing or following the instructions, unless issuing or following the instructions constitutes willful and wanton misconduct, or gross negligence.

It is clear from the express language in this section that the legislature intended for this statutory immunity to supercede the common law official immunity doctrine for the enumerated individuals and agencies. Section 190.307 provides the shielded entities with a qualified immunity allowing civil liability only in instances where gross negligence can be established.

At the time the trial court ruled on the summary judgment motion, it did not have the benefit of this Court’s opinion finding the qualified immunity under section 190.307 supplants the absolute immunity under the common law. Having resolved this issue of first impression, it is appropriate to allow the trial court to reconsider the motion applying the proper immunity doctrine.

IY.

The preliminary writ is quashed.

All concur.

      . State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 856 (Mo. banc 2001).

      . State ex rel. Howenstine v. Roper, 155 S.W.3d 747, 749 (Mo. banc 2005).

      . Murray v. Missouri Highway and Transp. Com’n, 37 S.W.3d 228, 233 (Mo. banc 2001).

      . Harrell v. Total Health Care, Inc., 781 S.W.2d 58, 62 (Mo. banc 1989). See as examples sections 188.130, 332.021, 335.031, 537.037, and 537.053.

      . Having clarified which immunity doctrine is applicable, the plaintiff, pursuant to Rule 55.33, may elect to amend his pleadings and allegations of gross negligence in order to attempt to satisfy the statutory exception to immunity. Conversely, Relator is free to renew its motion for summary judgment or file a motion to dismiss should plaintiff be unable to articulate a valid claim.


author: STEPHEN N. LIMBAUGH, JR., Judge.

text:
    CITY OF ST. CHARLES, Missouri, a Constitutional Charter City, Respondent, v. STATE of Missouri, et al., Appellants.
    No. SC 86335.
    Supreme Court of Missouri, En Banc.
    June 14, 2005.

      Jeremiah W. (Jay) Nixon, Attorney General, Paul C. Wilson, Alana M. Barragan-Scott, Daniel Y. Hall, Assistant Attorneys General, Jefferson City, for appellants.
    Stephen A. Martin, St. Charles, for respondent.
   STEPHEN N. LIMBAUGH, JR., Judge.

The City of St. Charles challenges the validity of certain amendments to section 99.847, RSMo Supp.2003, pertaining to tax increment financing. In particular, the City contends that the amendments, enacted by the General Assembly in 2002 as part of Senate Bill 1107, violate the prohibition against multiple subjects set out in article III, section 23, of the Missouri Constitution. The circuit court entered judgment in favor of the City. This Court has exclusive jurisdiction of the appeal. Mo. Const, art. V, sec. 3. The judgment is reversed.

The rules for challenges to the constitutional validity of statutes are well established. “An act of the legislature carries a strong presumption of constitutionality.” Carmack v. Director, Mo. Dept. of Agriculture, 945 S.W.2d 956, 959 (Mo. banc 1997). Any doubts raised are to be resolved by this Court in favor of the procedural and substantive validity of the legislation. Id. Moreover, the party attacking the statute must show that the constitutional limitation has been “clearly and undoubtedly” violated. Fust v. Attorney General, 947 S.W.2d 424, 427-28 (Mo. banc 1997).

Article III, section 23, the constitutional limitation in this case, states that “No bill shall contain more than one subject which shall be clearly expressed in its title.” The title to S.B.1107 is, “An Act To repeal [certain sections], and to enact in lieu thereof forty-three new sections relating to emergency services, with penalty provisions.” The essence of the City’s challenge, and the basis for the circuit court’s ruling, is that the provisions of S.B. 1107 pertaining to tax increment financing do not “relat[e] to emergency services,” which is the clearly stated subject of S.B. 1107, so that the bill contains more than one subject — sections properly relating to emergency services and sections that do not.

Tax increment financing, in general, is the statutory mechanism for public financing of private redevelopment projects with the goal that the projects will generate tax revenues that exceed the revenues before the redevelopment. Sec. 99.800 et seq., RSMo 2000; see also Josh Reinert, Comment, Tax Increment Financing In Missouri: Is It Time For Blight And But-For To Go?, 45 StL.U.L.J. 1019 (Summer 2001). The amendments in question prohibit new tax increment financing in counties such as St. Charles that have a charter form of government, between 250,000 and 300,000 inhabitants, and an area “designated as flood plain by the Federal Emergency Management Agency.” These amendments (the TIF amendments) added subsections 2 and 3 to section 99.847, which state in full:

2. Notwithstanding the provisions of sections 99.800 to 99.865 to the contrary, no new tax increment financing project shall be authorized in any area which is within an area designated as flood plain by the Federal Emergency Management Agency and which is located in or partly within a county with a charter form of government with greater than two hundred fifty thousand inhabitants but fewer than three hundred thousand inhabitants.
3. This subsection shall not apply to tax increment financing projects or districts approved prior to July 1, 2003, and shall allow the aforementioned tax increment financing projects to modify, amend or expand such projects including redevelopment project costs by not more than forty percent of such project original projected cost including redevelopment project costs [sic] as such projects including redevelopment project costs existed as of June 30, 2003, and shall allow the aforementioned tax increment financing district to modify, amend or expand such districts by not more than five percent as such districts existed as of June 30, 2003.

The test in determining whether a provision of a bill violates the single subject rule is “not whether individual provisions of a bill relate to each other ... [but] whether [the challenged provision] fairly relates to the subject described in the title of the bill, has a natural connection to the subject, or is a means to accomplish the law’s purpose.” Fust, 947 S.W.2d at 428. Said another way, the subject of a bill, within the meaning of article III, section 23, “includes all matters that fall within or reasonably relate to the general core purpose of the proposed legislation.” Hammerschmidt v. Boone County, 877 S.W.2d 98,102 (Mo. banc 1994).

In view of these rules, this Court concludes that the TIF amendments are indeed sufficiently related to the subject of the bill — emergency services — to pass constitutional muster. Although in the abstract there seems to be no connection at all between emergency services and tax increment financing, in the context of the TIF amendments — the newly amended section 99.847 — there is a direct connection. The obvious and significant goal of the TIF amendments is to ensure that adequate emergency services are available in certain areas that need them most — ■ “area[s] designated as flood plain by the Federal Emergency Management Agency.” That goal is sought to be achieved by prohibiting new TIF districts in flood plain areas and eliminating the corresponding public-financing incentives for private redevelopment, so that there is less likelihood that development will occur, thus less need for emergency services. Nonetheless, the City maintains that the prohibition of new TIF districts has no real relation to the subject of emergency services because new TIF districts will generate enough additional tax revenue to accommodate any increase in the cost for providing emergency services. However, this argument ignores that there still would be a risk that the district would underperform and be unable to bear that cost, and that risk could well be part of the legislature’s concern in prohibiting the new TIF districts. In sum, it is the opinion of this Court that the TIF amendments fairly relate to the provision of emergency services, the subject of S.B. 1107.

The case of C.C. Dillon Company v. City of Eureka, 12 S.W.3d 322 (Mo. banc 2000), informs our decision. This Court held that a provision in a bill for regulation of billboards properly related to the stated subject of the bill, which was “transportation.” Though at first glance billboards and transportation appeared to be disparate subjects, the constitutionally required relation was that the regulation of billboards was necessary to promote highway safety, a component of the larger subject of transportation. Id. at 327-29.

For the foregoing reasons, this Court holds that there is no violation of article III, section 23. The judgment is reversed.

All concur.


text:
    STATE EX REL. RIVERSIDE PIPELINE COMPANY, L.P., Mid-Kansas Partnership, and Missouri Gas Energy, Respondents, v. PUBLIC SERVICE COMMISSION OF the State of MISSOURI, Appellant.
    No. SC 86474.
    Supreme Court of Missouri, En Banc.
    June 14, 2005.

      Thomas R. Schwartz, Cliff E. Snodgrass, Jefferson City, for appellant.
    Richard M. Paul, III, Gregory L. Musil, Kansas City, Charles B. Stewart, Columbia, Brian T. McCartney, Jefferson City, for respondents.
   STEPHEN N. LIMBAUGH, JR., Judge.

Following a decision by the Public Service Commission (PSC), Riverside Pipeline Co. (Riverside) and Mid-Kansas Partnership (MKP) filed a petition for a writ of review in the Cole County Circuit Court. The circuit court reversed the PSC’s decision, and the PSC appealed the judgment to the Court of Appeals, Western District. The court of appeals dismissed the appeal for lack of jurisdiction, and this Court granted transfer. Mo. Const, art. V, sec. 10. Having now determined that jurisdiction was proper in the court of appeals, the case is retransferred to that court for consideration of the merits of the appeal.

I.

Riverside and MKP contracted with Missouri Gas Energy (MGE) to supply and transport natural gas to MGE’s distribution system serving Kansas City, Missouri. MGE is a utility subject to the jurisdiction of the PSC. Natural gas distribution companies such as MGE are allowed to recoup approved costs for obtaining natural gas from their suppliers as part of the rate they charge them customers. Periodically, the PSC conducts an Actual Cost Adjustment (ACA) review to determine what costs public utilities are allowed to recover from their customers. As part of this effort, the PSC staff conducts a “prudence review” to evaluate the utility’s contracts with its suppliers. The staff then decides whether the costs associated with the contracts should be disallowed in whole or part.

In May of 1996, after a recently completed ACA review, Riverside, MKP, MGE, Western, the staff, and the Office of Public Counsel entered into a “Stipulation and Agreement” to “resolve certain disputes [then pending] between the parties.” These disputes involved actual and potential disallowances by the PSC for the expenses MGE incurred from Riverside and MKP. The stipulation provided that Riverside and MKP would pay nearly $3 million to indemnify MGE for the credits that would be due its ratepayers as a result of the PSC’s disallowance of costs associated with MGE’s contracts with Riverside and MKP. In return, as Riverside and MKP contend, it was agreed that their contracts and contract renewals with MGE would not be subject to any further ACA prudence reviews by the PSC. The PSC staff disputes this contention, arguing that the stipulation and agreement applied only to the contract at issue at the time of the settlement, not contract renewals.

In 1998, the PSC staff challenged the prudence of the parties’ contract renewals, recommending that nearly $3.5 million of the associated costs be disallowed. Riverside and MKP filed motions to dismiss the review, alleging that it was precluded by the 1996 stipulation. The PSC overruled the motions; thereafter, Riverside and MKP filed a petition for a writ of prohibition in the Cole County Circuit Court, seeking to prevent the PSC from conducting the prudence review. The court, upon PSC’s motion, remanded for a hearing to allow the PSC to construe the stipulation, but after conducting a hearing, the PSC again overruled the motions to dismiss.

Then, in January 1999, pursuant to section 386.510, RSMo 1994, Riverside and MKP filed a petition for a writ of review in the circuit court. The court held that the PSC had “acted unlawfully and/or unreasonably when it failed to make any finding that the 1996 Stipulation and Agreement was ambiguous, yet interpreted the Stipulation and Agreement without hearing any testimony or otherwise receiving any evidence to determine the intent of the parties to the Stipulation and Agreement.” As a result, the court again remanded the case to the PSC.

On March 12, 2002, the PSC issued its decision and declared the stipulation to be ambiguous as to whether it barred the prudence review. However, on the merits, it rejected the staffs recommendation to disallow a portion of the costs for the ACA period under review; consequently, Riverside and MKP were not obligated to reimburse MGE. Even though they prevailed on the disallowance issue, Riverside and MKP filed an application for .rehearing, which the PSC denied. They then returned to the circuit court with another petition for a writ of review, claiming that the PSC should not have taken up the disallowance issue in the first place. The court agreed, reversing the PSC and holding that the stipulation barred the staffs proposed ■ disallowance and precluded any further ACA review of the contracts. The PSC appealed to the court of appeals, which dismissed the appeal for lack of jurisdiction.

II.

On transfer, the PSC, taking the lead from the court of appeals which ruled the jurisdictional issue sua sponte, now claims that there was no jurisdiction on appeal because Riverside and MKP do not have standing to appeal. They explain that Riverside and MKP were not aggrieved parties, that is, they were not aggrieved by the decision of the PSC because the PSC ruled in their favor by denying the staffs claim for disallowances. The appeal at issue, however, is not the “appeal” of the decision of the PSC to the circuit court by way of petition for review, and the appellants are not Riverside and MKP. Instead, the appeal is from the judgment of the circuit court to the court of appeals and this Court, and the appellant is the PSC. Perhaps the confusion is due to the anomalous procedure that in an appeal following judicial review of an administrative agency’s decision (such as that of the PSC), the appellate court reviews the agency’s decision, rather than the circuit court’s judgment. Mo. Coalition for the Environment v. Herrmann, 142 S.W.3d 700, 701 (Mo. banc 2004). However, this is simply to say that the agency decision is to be reviewed in the context of the circuit court’s judgment, which was a review of the agency decision in the first instance. Perhaps, too, the confusion stems from the application of Rule 84.05(e), which provides:

If the circuit court reverses a decision of an administrative agency and the appellate court reviews the decision of the agency rather than of the circuit court, the party aggrieved by the agency decision shall file the appellant’s brief and reply brief, if any, and ... [t]he party aggrieved by the circuit court decision shall prepare the respondent’s brief....

But this rule pertains only to the determination of which party files its brief first and how the parties are designated. It is a procedural rule that provides a more logical order for filing briefs, but it does not affect the designation of which party must establish standing in order to appeal.

To reiterate, the appeal at issue is that taken by the PSC from the judgment of the circuit court. Whether Riverside and MKP were “aggrieved” by the decision of the PSC is of no consequence. The only determination necessary to establish appellate jurisdiction is whether the PSC was aggrieved by the judgment of the circuit court, and surely it was by virtue of the fact that the judgment was entered against it.

III.

To the extent that the PSC is claiming that Riverside and MKP must be “aggrieved” by the decision of the PSC in order to have standing to bring the initial petition for writ of review to the circuit court, that claim fails as well. A threshold requirement for filing a petition for writ of review is to seek rehearing before the PSC under section 386.500.1, which states in pertinent part:

After an order or decision has been made by the commission, the public counsel or any corporation or person or public utility interested therein shall have the right to apply for a rehearing in respect to any matter determined therein....

Subsequent review by the circuit court is governed by section 386.510, which states in pertinent part:

Within thirty days after the application for a rehearing is denied, or, if the application is granted, then within thirty days after the rendition of the decision on rehearing, the applicant may apply to the circuit court of the county where the hearing was held or in which the commission has its principal office for a writ of certiorari or review (herein referred to as a writ of review) for the purpose of having the reasonableness or lawfulness of the original order or decision or the order or decision on rehearing inquired into or determined....

Nowhere in these procedures is any requirement that a party seeking rehearing and review must show that it is “aggrieved.” Instead, the only requirement to seek rehearing is that the party must be “interested therein,” and the only requirement to seek judicial review in the circuit court, as it pertains to this case, is that the interested party’s application for rehearing was denied. In this case, the PSC concedes Riverside and MKP are interested parties and that their application was denied. Therefore, Riverside and MKP are entitled to judicial review “for the purpose of having the reasonableness or lawfulness of the original order ... inquired into or determined.” The inquiry they present for judicial review is the lawfulness of the PSC’s action in conducting ACA reviews in view of the stipulation and agreement, which, according to Riverside and MKP, precludes those reviews. The statute clearly permits this inquiry because the PSC’s original order acted on those ACA reviews.

Our Rule 84.05(e) is perhaps again the source of some confusion as it refers to “the party aggrieved by the agency decision” in setting out the procedures for the filing of briefs when an appeal is taken from the circuit court’s judgment. In the context of the rule, the party aggrieved by the agency decision refers simply to the party entitled to judicial review in the circuit court. Regardless, the language of the statute controls, and Riverside and MKP are entitled to judicial review because they are interested parties whose application for rehearing before the PSC was denied.

IV.

In sum, this Court holds that the circuit court had jurisdiction to entertain the petition for review from the decision of the PSC, and the court of appeals had jurisdiction to entertain the PSC’s appeal from the judgment of the circuit court. Therefore, the case is retransferred to the court of appeals for consideration of the merits of the appeal.

All concur.

      . All statutory references are to RSMo 2000 unless otherwise indicated.


text:
    John BECK, Respondent, v. Ann FLEMING, Appellant.
    No. SC 86568.
    Supreme Court of Missouri, En Banc.
    June 14, 2005.
    Rehearing Denied July 12, 2005.

      Maia Brodie, Aimee M. Ruder, St. Louis, for appellant.
    Daniel R. Sokol, Sanford J. Boxerman, St. Louis, for respondent.
   RONNIE L. WHITE, Chief Justice.

I.

Ann Fleming (Appellant) appeals from the dismissal of a motion to enforce her dissolution decree alleging that her former husband, John Beck (Respondent), had failed to pay her the correct amount of profits accrued from the exercise of stock options that had been allocated to her in the decree. The circuit court determined that the judgment of dissolution as to those specific payments was presumed paid pursuant to the applicable version of section 516.350. This Court has jurisdiction, Mo. Const, art. V, sec. 10. The judgment is affirmed.

II.

The parties dissolved their marriage on June 24, 1988. The dissolution decree included a provision entitling Appellant to 12.5% of any net profit realized from the exercise of certain stock options that Respondent had received as a benefit from his employment. Respondent retained the exclusive right to choose if and when to exercise the options, and he had made payments to Appellant on options exercised on February 15, 1995, January 7, 2000, and July 19, 2001.

On December 7, 2001, Appellant filed a motion to enforce the decree alleging that Respondent had “exercised, purchased and sold all of the stock options granted to him ... however he has failed to pay to [Appellant] the full amount of the net profit realized from said transactions.” Respondent filed a motion to dismiss, which the trial court granted finding that a conclusive presumption of payment existed by operation of the 1999 version of section 516.350.

III.

This Court must affirm the dismissal if it can be sustained on any ground supported by the motion to dismiss. The case is not reviewed on the merits, but rather a determination is made as to if Appellant’s pleadings were sufficient to withstand a motion to dismiss.

The case turns on which version of section 516.350 applies in relation to the stock options that Respondent received as an employment benefit. The precursor to section 516.350 was passed in 1909. The statute was amended or revised in 1919, 1929, 1982, 1999, and 2001. In 1999, the legislature added subsection 3 to the statute, leaving subsections 1 and 2 intact from the 1982 revisions. The 1999 version of section 516.350 provided:

1.Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, except for any judgment, order, or decree awarding child support or maintenance which mandates the making of payments over a period of time, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.
2. In any judgment, order, or decree awarding child support or maintenance, each periodic payment shall be presumed paid and satisfied after the expiration of ten years from the date that periodic payment is due, unless the judgment has been otherwise revived as set out in subsection 1 of this section. This subsection shall take effect as to all such judgments, orders, or decrees which have not been presumed paid pursuant to subsection 1 of this section as of August 31,1982.
3. In any judgment, order or decree awarding child support or maintenance, payment duly entered on the record as provided in subsection 1 of this section shall include recording of payments or credits in the automated child support system created pursuant to chapter 454, RSMo, by the division of child support enforcement or payment center pursuant to chapter 454, RSMo.

In 2001, the legislature expanded the exception provided in subsection 1 for decrees awarding child support and maintenance to also include judgments “dividing pension, retirement, life insurance, or other employee benefits in connection with a dissolution of marriage.” The legislature also added a new subsection 3 and designated the former subsection 3 as being subsection 4. The newly added subsection 3 provides:

In any judgment, order, or decree dividing pension, retirement, life insurance, or other employee benefits in connection with a dissolution of marriage, legal separation or annulment, each periodic payment shall be presumed paid and satisfied after the expiration of ten years from the date that periodic payment is due, unless the judgment has been otherwise revived as set out in subsection 1 of this section. This subsection shall take effect as to all such judgments, orders, or decrees which have not been presumed paid pursuant to subsection 1 of this section as of August 28, 2001.

Appellant claims the trial court erred by failing to apply the new exceptions adopted in the 2001 version of section 516.350 regarding dissolution decrees dividing employee benefits: (1) because the judgment had not been adjudicated to have lapsed; (2) because of the distinctive nature of periodic and future payments; and (3) because failure to apply the 2001 version of this remedial statute would constitute a deprivation of due process. Respondent argues that the 2001 version of section 516.350 does not apply and that a conclusive presumption of payment attached on June 24,1998, because the Appellant failed to revive the judgment within ten years of the June 24, 1988, decree as required by the prior version of the statute.

This Court has previously held that a plain reading of section 516.350.1 provides that judgments, not excluded or revived, shall conclusively be presumed to be paid and satisfied ten years after the original rendition of the judgment. The statute also provides “no tolling period during which debts are uncertain or uncollectible,” and the “inability to collect a debt does not prevent the normal operation of section 516.350.1.”

No version of the statute requires that an adjudication take place to establish that a payment not excluded is presumed to have been paid upon the passage of ten years. The case Appellant cites to support her first argument, In re Marriage of Holt, involved a situation where litigation was in progress at the time that section 516.350 was amended and the plaintiff was given the benefit of the new amendments to the statute. In this instance, Appellant brought her litigation three and a half years after the payments in question are presumed to have been paid and four months after the 2001 amendments to the statute went into effect.

With regard to Appellant’s second argument, at the time when the original dissolution decree was entered, June 24, 1988, there was no statutory exception from the presumption of payment, absent a timely revival, that applied to dissolution decrees awarding employment benefits as future payments or as payments to be made over a period of time. There is also no uncertainty contained in the language of subsection 3 in the 2001 amendments that the new exclusion for judgments awarding periodic payments of employee benefits to a spouse did not take effect until August 28, 2001. Consequently, it does not matter if Appellant characterizes the nature of this payment as being future or periodic. There was simply no statutory exception to the presumption of payment of this award after ten years had passed from the entry of the original judgment, unless Appellant had filed a timely motion for revival of the judgment.

Appellant finally argues that this is a remedial statute and the 2001 version should be applied retroactively to ensue her rights to due process. However, “once the original statute of limitation expires and bars the plaintiffs action, the defendant has acquired a vested right to be free from suit, a right that is substantive in nature.” “[Statutory provisions that are substantive are generally presumed to operate prospectively, unless the legislative intent that they be given retroactive operation clearly appears from the express language of the act or by necessary or unavoidable implication.” The only language in the statute referencing when the new statutory amendments were to be applied establishes August 28, 2001 as the effective date. On June 24, 1998, Respondent acquired a substantive right to be free from suit with regard to those portions of the dissolution decree that were presumed to be paid, and the 2001 amendments to section 516.350 do not apply retroactively to strip away that substantive right.

IV.

The parties had stipulated that the judgment awarding profits from the stock options had not been revived by Appellant within the ten year period following the June 24, 1988, dissolution decree as required by the pre-2001 version of section 516.350. The payment was presumptively paid by operation of the applicable statute. The judgment of the trial court is affirmed.

WOLFF, STITH, PRICE, TEITELMAN and LIMBAUGH, JJ„ and GILLIS, Sp.J. concur.

RUSSELL, J., not participating.

      . These payments were not entered on the record as payments made on the judgment until Appellant filed partial satisfactions of the judgment on June 11th and July 8th, 2003.

      . Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 391 (Mo. banc 2001).

      . Id.

      . Pirtle v. Cook, 956 S.W.2d 235, 245 (Mo. banc 1997).

      . Id.

      . In re Marriage of Holt, 635 S.W.2d 335, 338 (Mo. banc 1982).

      . Doe v. Roman Catholic Diocese of Jefferson City, 862 S.W.2d 338, 341 (Mo. banc 1993).

      . Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 872 (Mo. banc 1993).


author: LAURA DENVIR STITH, Judge.

text:
    STATE of Missouri ex rel., SPRINT MISSOURI, INC., Appellant, v. PUBLIC SERVICE COMMISSION OF the STATE of Missouri, a State Agency, et al., Respondents.
    No. SC 86584.
    Supreme Court of Missouri, En Banc.
    June 14, 2005.
    As Modified on Denial of Rehearing July 12, 2005.

      Brett D. Leopold, Kenneth A. Schifman, Overland, KS, for appellant.
    David A. Meyer, Associate General Counsel, Dana K. Joyce, General Counsel, Jefferson City, for respondents.
   LAURA DENVIR STITH, Judge.

Sprint Missouri, Inc. (Sprint) appeals a judgment of the Circuit Court of Cole County affirming a decision of the Missouri Public Service Commission (PSC). The PSC rejected Sprint’s proposed tariff establishing increased rates for certain nonbasic telecommunications services it provides to its customers on the basis that the proposed tariff exceeded the eight percent annual increase in rates permitted by section 392.245.il. The PSC was correct in holding that section 392.245.11 prohibited Sprint from increasing the rate it charged its customers by more than eight percent annually. Accordingly, the judgment is affirmed.

I. PSC REGULATION OF TELECOMMUNICATIONS RATES

The first PSC law regulating utilities was enacted in 1913. State ex rel. Util. Consumers Council, Inc. v. Pub. Serv. Comm’n, 585 S.W.2d 41, 47 (Mo. banc 1979). The purpose of such regulatory laws is to allow a utility to recover a just and reasonable return while at the same time protecting the consumer from the natural monopoly power that the public utility might otherwise enjoy as the provider of a public necessity. Id.

Sprint is a large telecommunications company providing local exchange telecommunications services in Missouri and, as such, is subject to regulation by the PSC. See secs. 392.245, 392.250. Such regulation is premised on the belief that, where monopoly power exists, “competition is inadequate to protect the public ... state regulation takes the place of and stands for competition ..May Dep’t Stores, Co. v. Union Elec. L. & P. Co., 341 Mo. 299, 107 S.W.2d 41, 48 (1937) (internal citations omitted). Accordingly, under applicable PSC regulations, telecommunications companies such as Sprint traditionally have been permitted to raise the rates they charge consumers only by filing tariffs with the PSC that permit them to receive a certain rate of return, which then go into effect unless challenged by the PSC as unjust or unreasonable. See sec. 392.240.

Beginning in 1996, however, Missouri enacted legislation authorizing non-traditional, alternative telecommunications companies to begin providing basic local telecommunications service in competition with existing companies. Companies, such as Sprint, that already provided local service as of December 31, 1995, were classified as “incumbent local exchange telecommunications companies,” or ILECs. Sec. 386.020.22, .30. The newly permitted and potentially competitive companies were classified as “alternative local exchange companies,” or ALECs. Sec. 386.020.1. As noted in State ex rel. Coffman v. Pub. Serv. Comm’n., 154 S.W.3d 316, 318 (Mo. App. W.D.2004), in order to permit existing service providers, or ILECs, to compete on a level playing field with the new entries into the local telecommunications area, or ALECs, Missouri enacted legislation that permits ILECs “the opportunity to gain freedom from traditional rate-of-return regulation” by enacting a system that would:

(3) Promote diversity in the supply of telecommunications services and products throughout the state of Missouri;
(4) Ensure that customers pay only reasonable charges for telecommunications service;
(5) Permit flexible regulation of competitive telecommunications companies and competitive telecommunications services;
(6) Allow full and fair competition to function as a substitute for regulation when consistent with the protection of ratepayers and otherwise consistent with the public interest;

Sec. 392.185 (emphasis added). Section 392.200.4(2) further expressly provides:

It is the intent of this act to bring the benefits of competition to all customers and to ensure that incumbent and alternative local exchange telecommunications companies have the opportunity to price and market telecommunications services to all prospective customers in any geographic area in which they compete.

Id. The legislature determined that the best way to permit such fair competition and to protect the ratepayer was to adopt a system permitting an ILEC to request that it be subject to “price cap regulation” under section 392.245 rather than traditional rate-of-return regulation under section 392.240 in geographic areas where the PSC certified that a competitive ALEC was operating in that area. Coffman, 154 S.W.3d at 318.

Of course, pursuant to section 392.245.1, the ILEC is still subject to the PSC’s regulatory authority “to ensure that rates, charges, tolls and rentals for telecommunications services are just, reasonable and lawful.” But, the PSC does so by means of “price cap regulation,” which the statute defines as “establishment of maximum allowable prices for telecommunications services offered by an incumbent local exchange telecommunications company, which maximum allowable prices shall not be subject to increase except as otherwise provided in this section.” Sec. 392.245.1.

Section 392.245.3 states that an ILEC’s initial maximum allowable price is the price in effect on December 31st of the year preceding the year* in which it became subject to price cap regulation. Because Sprint became subject to price cap regulation on August 19, 1999, its initial maximum allowable price was the price in effect on December 31,1998.

II. PRICE CAP REGULATION OF SPRINT’S RATES FOR MCA SERVICE

At issue here is Sprint’s right to raise its maximum allowable price for a particular type of optional residential and business service called Metropolitan Calling Area, or MCA service, which allows consumers to call within an expanded metropolitan area for a set price per month. As this is a nonbasic telecommunications service, it is subject to price cap regulation under section 392.245.11, which provides in relevant part that:

[T]he maximum allowable prices for nonbasic telecommunications services of an incumbent local exchange telecommunications company may be annually increased by up to eight percent for each of the following twelve-month periods upon providing notice to the commission and filing tariffs establishing the rates for such services in such exchanges at such maximum allowable prices.

Id. The parties agree that this section governs how and to what extent Sprint and other ILECs may increase their rates, but disagree as to its meaning and as to its application to Sprint’s current attempt to increase the rates it charges customers for MCA services.

As relevant here, the record shows that, on December 11, 2000, Sprint filed a tariff that set out what Sprint called a “maximum allowable rate” for MCA service that was an eight percent increase over its previously charged rate. It is not clear what Sprint intended by the phrase “maximum allowable rate ” because section 392.245.11, and related statutes, as discussed above, do not identify any such term, but rather provide for “maximum allowable prices” and “rates” actually charged. It is clear that Sprint did not actually file a tariff that raised the rates it actually charged for its MCA service, and those rates remained the same. The PSC approved the filing.

Twelve months later, Sprint again filed a tariff that set out what it again referred to as a “maximum allowable rate” for MCA service that was an eight percent increase over the hypothetical figure it had listed as the “maximum allowable rate” the preceding year. Again, Sprint did not file a tariff that raised the actual rates it charged customers for MCA service and those rates remained the same. Again, the PSC approved the filing.

On March 13, 2002, Sprint, for the first time since it had been subject to price cap regulation of its MCA rates, filed a revised tariff proposing an increase in the rates it charges its business and residential customers for MCA service. Its proposed tariff provided for a rate increase of 16 percent over its rates charged the prior year. The PSC rejected Sprint’s proposed tariff on the basis that section 392.245.11 permits only an eight percent increase in rates per year above the “maximum allowable price” permitted by statute, and the maximum allowable price is based on the actual rates established for such services, not on a hypothetical “maximum allowable rate” that Sprint might have, but did not, charge customers. The circuit court affirmed the PSC’s order. After opinion by the court of appeals, Western District, this Court granted transfer. Mo. Const, art. V, sec. 10

III. STANDARD OF REVIEW OF PSC DECISION

This Court reviews the findings and decision of the PSC, not the judgment of the circuit court. State ex rel. Midwest Gas Users’ Assoc. v. Pub. Serv. Comm’n, 976 S.W.2d 485, 491 (Mo.App. W.D.1998). In so doing, this Court uses a two-part test. State ex rel. AG Processing, Inc., v. Pub. Serv. Comm’n, 120 S.W.3d 732, 734 (Mo. banc 2003). First, the Court determines whether the PSC’s order was lawful. Id. This turns on whether the PSC had the statutory authority to act as it did. Id. The PSC’s order has the presumption of validity. Util. Consumers Council v. Pub. Serv. Comm’n, 585 S.W.2d at 47. Furthermore, the “interpretation and construction of a statute by an agency charged with its administration is entitled to great weight.” Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 197 (Mo. banc 1972). Nonetheless, this Court exercises independent judgment and must correct erroneous interpretations of law. Burlington N. R.R. v. Dir. of Revenue, 785 S.W.2d 272, 273 (Mo. banc 1990).

Second, if this Court finds that the order is lawful, then it determines whether the order is reasonable. AG Processing, Inc., 120 S.W.3d at 734. “In so doing, this Court determines whether the order was supported by substantial and competent evidence on the whole record, whether the decision was arbitrary, capricious, or unreasonable, or whether the PSC abused its discretion.” State ex rel. Mobile Home Estates, Inc. v. Pub. Serv. Comm’n, 921 S.W.2d 5, 9 (Mo.App. W.D.1996).

Missouri courts have long recognized that when the decision involves the exercise of regulatory discretion, the PSC is delegated a large amount of discretion, and “many of its decisions necessarily rest largely in the exercise of a sound judgment.” State ex rel. Dyer v. Pub. Serv. Comm’n, 341 S.W.2d 795, 802 (Mo.1960), cert. denied, 366 U.S. 924, 81 S.Ct. 1351, 6 L.Ed.2d 384 (1961). “Under these circumstances, the reviewing court will not substitute its judgment for that of the PSC on issues within the realm of the agency’s expertise.” Mobile Home Estates, 921 S.W.2d at 10.

IV. THE PSC’S ORDER WAS LAWFUL AND REASONABLE

Section 392.245.11 governs the resolution of this case. As noted, it provides in relevant part that:

[T]he maximum allowable prices for nonbasic telecommunications services of an incumbent local exchange telecommunications company may be annually increased by up to eight percent for each of the following twelve-month periods upon providing notice to the commission and filing tariffs establishing the rates for such services in such exchanges at such maximum allowable prices.

(emphasis added).

This language clearly supports the PSC’s decision to disallow Sprint’s proposed tariff. That tariff purported to raise the rate charged to customers for MCA service by 16 percent within a 12-month period, in direct contravention of the statutory requirement that increases be limited to “eight percent for each” 12-month period above the tariff establishing rates for such services for the preceding year.

Sprint admits that the tariff it filed purported to raise its actual rates 16 percent, but argues that because the proposed increase was only eight percent more than the hypothetical “maximum allowable rate” it had listed on its prior year’s tariff filing, but never charged to any customer, the increase is permissible. In essence, Sprint argues that it should be allowed to “bank” the annual eight percent rate increases it could have, but did not file, because otherwise it would be “forced” to increase rates by eight percent every year since it would lose that portion of the eight percent that it did not utilize in a particular year.

Sprint is incorrect. While Sprint did file tariffs with the PSC the preceding two years and did list in those tariffs what it called a “maximum allowable rate,” the statute does not permit actual rate increases to be based on such hypothetical figures. To the contrary, the statute on its face states that an increase in the maximum allowable price is made by “providing notice to the commission and filing tariffs establishing the rates for such services in such exchanges at such maximum allowable pnces.” Sec. 392.245.11 (emphasis added). In other words, the statute states that in order to set a new maximum allowable price, the company must set its rates at the proposed new maximum allowable price, which cannot be more than an eight percent increase over the prior maximum allowable price.

Because, here, Sprint failed to increase rates in its 2000 or 2001 tariff filings, its maximum allowable price remained the same as it had been in the previous year. Consequently, when it sought to raise its rates in 2002, its right to such an increase in price was capped at an eight percent increase over its prior year’s rate.

This holding need not, as Sprint claims, result in higher consumer prices because Sprint will choose to increase its rates by the full, statutorily permissible eight percent rather than holding rates steady or increasing them a smaller amount in some years. The statutory scheme is based on the premise that rates will be kept down, not by the eight percent statutory cap, but by competition. That is, even were Sprint to desire to increase its rates by eight percent each year, as a practical matter it will not be able to do so because ALECs in the area will be competing with it on price and will help hold down the rates it can competitively charge.

In the event that competition is not sufficient to keep down rates in the manner envisioned, however, the legislature has protected consumers by providing that rates can not increase by more than eight percent in any 12-month period, thus avoiding a rate shock increase that would only be subject to competitive regulation. It is this statutory cap on rate increases that gives the type of regulation its name — price cap regulation. The purpose of price cap regulation is not to guarantee Sprint an eight percent rate increase each year, but to cap increases at such an amount where competition does not otherwise cap them at a lower amount.

Further, the statutory framework clearly anticipates that increases may well be less than eight percent by providing that the new maximum allowable price may increase by up to eight percent annually, not that it is guaranteed to do so. In this way, price cap regulation can help the PSC meet its statutory duty of ensuring that ratepayers pay only reasonable charges for telecommunications services, while allowing companies to make a reasonable profit, by permitting “flexible regulation of competitive telecommunications companies ... and to allow full and fair competition to function as a substitute for regulation when consistent with the protection of ratepayers and otherwise consistent with the public interest.” Sec. 392.185 (emphasis added).

To interpret the statute otherwise would contravene its purpose. It would permit Sprint to “bank” the right to price increases, so that in any year when the competition envisioned by the legislature in enacting price cap regulation weakened, Sprint (or other ILECs) could avoid the effect of the rate savings resulting from past competition by increasing rates by the full amount of its “banked” price increases at one time, not just by the 16 percent requested here, but potentially by 24 percent, 36 percent, or more. This is not what the legislature intended when it amended chapter 392.

For these reasons, the Court holds that the maximum allowable price may be annually increased by up to eight percent. A company may chose not to increase up to the cap — indeed, if competition is working as anticipated, it may well not do so — but, in any case, the new base on which the next year’s cap will be figured will be the actual rate charged as set out in the tariff.

Accordingly, the PSC’s order refusing to permit Sprint to increase its rate more than eight percent over its prior rate was lawful and reasonable. Affirmed.

All concur.

      . All statutory references are to RSMo 2000 unless otherwise stated.

      . Sprint argues that a contrary result is required because section 392.245.11 also provides that the PSC shall approve its tariffs within 30 days provided that they do not establish rates in excess of the maximum allowable price. But, that begs the question of what is the maximum allowable price. It is, as noted above, eight percent more than the rate previously charged. The portion of subdivision 392.245.11 Sprint cites merely provides that, once a company has filed a rate that sets a maximum allowable price, it may change the rates for its services — for instance, by lowering its rates — so long as the changed rates are also not more than the maximum allowable price established under the system described above.

      . So, for example, if in year one the company charged a rate of $1.00, and it increased that rate to $1.04 in year two, then in year three it would be permitted to increase its rate by up to eight percent of $1.04. It could not increase its rate by up to eight percent of a hypothetical $1.08 that it could have but did not charge as its rate in year two.


author: PER CURIAM.

text:
    Richard KUNKEL, Appellant, v. ANHEUSER BUSCH, INC., et al., Respondents.
    No. ED 83633.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 2, 2004.
    Application for Transfer to Supreme Court Denied Jan. 5, 2005.
    Case Transferred to Supreme Court March 1, 2005.
    Case Retransferred to Court of Appeals May 31, 2005.
    Original Opinion Reinstated June 20, 2005.
    Thomas B. Hayes, St. Louis, MO, for appellant.
    Carmody MacDonald, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, JR., J., and GEORGE W. DRAPER, J.
   ORDER

PER CURIAM.

Richard Kunkel (“Kunkel”) appeals from the order of the trial court granting the motion of defendants Anheuser-Busch, Inc. and Anheuser-Busch Companies, Inc. (collectively “Anheuser-Busch”) for summary judgment on Kunkel’s claim of wrongful discharge.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    SOUTHWESTERN BELL YELLOW PAGES, INC., Plaintiff/Respondent, v. Bonnie Lou MILLER, d/b/a American Sweetheart Florist, Defendant/Appellant.
    No. ED 84161.
    Missouri Court of Appeals, Eastern District, Division One.
    April 12, 2005.
    Rehearing Denied June 22, 2005.
    Bonnie Lou Miller, Poplar Bluff, MO, pro se.
    James Nymark Fendelman, Clayton, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Bonnie Lou Miller, d/b/a American Sweetheart Florist (Appellant) appeals from the trial court’s judgment entered in favor of Southwestern Bell Yellow Pages, Inc. (Respondent) on Respondent’s two-count petition to reduce settlement to judgment and for suit on account. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court’s judgment is supported by substantial evidence. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    James KENNEDY, II, Individually and as Next Friend of James Kennedy, III, Appellants, v. AMERICAN LEGION POST 253, John Fisher, Respondents, and Thomas Holloway, Defendant.
    No. ED 84437.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 19, 2005.
    Rehearing Denied June 22, 2005.

      Stephen M. Gorny, Leawood, KS, for appellants.
    James R. Garrison, St. Louis, MO, for defendant.
    Joseph F. Cunningham, Crystal City, MO, John R. Geiss, St. Louis, MO, for respondents.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

James Kennedy, II, individually and as next friend of James Kennedy, III, (“Trey”) appeals the judgment of the Circuit Court of Jefferson County granting Defendants American Legion Post #253 and John Fisher’s Motions to Dismiss for lack of subject matter jurisdiction.

We have reviewed the briefs of the parties and the record on appeal and find no error in either of the respects alleged. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

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