author: RONALD R. HOLLIGER, Judge.

text:
    Francis GOFF, Respondent, v. Leland CASE, Appellant.
    No. WD 57514.
    Missouri Court of Appeals, Western District.
    May 16, 2000.

      Jean Ann Maneke, Kansas City, for appellant.
    David B. Parman, Albany, for respondent.
   RONALD R. HOLLIGER, Judge.

Leland Case appeals the trial court’s grant of summary judgment on his counterclaim against Francis Goff. Alternatively, he also appeals the court’s order denying the joinder of his son as a necessary third party beneficiary of a contract between Case and Goff.

On May 24,1996, Goff, doing business as Goff Construction,. submitted to Case a written proposal to construct a large metal garage and storage building on acreage at Mound Gity, Missouri. Case was to use the building as his residence and for machinery storage. According to the contract, Case as the “owner” was to finish a concrete base; the building was to be attached to that base. The proposal called for a total price of $32,953.00 to be paid at certain intervals. Case accepted the proposal the same day. The contract called for completion of the work by July 15, 1996.

Goff undertook the construction of the building. Case apparently made several requests for changes. Ultimately, a dispute arose between the parties as to the changes and alleged defects in the construction. Case refused to pay. As a result, on December 23, 1996, Goff filed a petition in the Holt County Circuit Court seeking an alleged balance due on the contract of $7,164.00. Case filed an answer admitting the contract, denying any balance due, and alleging failure to construct the building as contracted and deficiencies in the construction. A counterclaim incorporated these same complaints, including, more specifically, claims that Goff installed an improper size door and failed to properly insulate the building, causing condensation. Case prayed for unspecified damages for reduction in the value of the building and repairs. Goffs “answer” [sic] to the counterclaim denied any defective construction; Goff admitted that some work remained to be done and claimed that Case refused to let Goff return to the premises to complete the work.

Discovery revealed that Case was not the owner of the fee interest in the land upon which Goff constructed the building; the owner was Case’s son, Brett Allyn. Goff then filed a motion for summary judgment on Case’s counterclaim alleging there was no genuine issue of material fact, and that Goff was entitled to judgment as a matter of law on the basis that Case could not bring the action because he was not the owner of the real estate. His motion further postulated that only the “owner” of the real property could make a claim either “for cost of repair” or “diminution of value” damages. Case responded, but referred exclusively to facts included in his answer and counterclaim. He contended that he owned the building and that ownership of the land was irrelevant. Goffs motion was apparently withdrawn without ruling by the court.

Ultimately, Goff filed a new summary judgment motion expanding on the same theory as the first. The second motion alleged with supporting evidence: (1) Case’s non-ownership of the land, (2) that there was no agreement between. Case and his son that the building not be considered a part of the real estate, (3) that the building had been permanently attached to the real estate, and (4) that Case had no long term leasehold interest in the real estate but only an oral lease for $1.00 per year, and (5) that there was evidence that Case had no intent that the building not become a “fixture” annexed to the real estate. Thus, Goff argued that as a matter of law the building was a fixture and therefore, part of the real estate. He claimed, therefore, that Case had no right to seek damages for defective construction. Case filed no responsive affidavits or evidence, but argued that the building was not a fixture under the law.

On June 22, 1999, the trial court entered an order granting summary judgment as to Case’s counterclaim. Thereafter, Case filed a motion for reconsideration and alternatively a request to join his son as a necessary “third party plaintiff’ to assert the claim for defective construction. As part of that motion, Case included an affidavit from a witness stating that Goff knew the land was owned by Case’s son before entering into the contract. Case does not develop any argument as to the significance of such a fact. If it be estop-pel, then that affirmative defense was not pled nor did Case seek leave to amend his answer.

Discussion

On July 21, 1999, Goff voluntarily dismissed his petition, making the summary judgment on the counterclaim final for purposes of appeal.

On this appeal, Case raises two claims. First, he contends the trial court erred in granting summary judgment because he was the real party in interest to maintain the counterclaim as he was the owner of the building and had a ground lease with his son. Secondly, he claims that, even if summary judgment was proper, the court erred by denying joinder of his son as a necessary party as he was a third party beneficiary to the building contract.

On appeal, the standard for review of a summary judgment is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). No deference is given to the trial court’s grant of summary judgment because it is based on the record submitted and effectively is a decision on a question of law. Id. A right to judgment as a matter of law must be established by the moving party. Id. at 378. Goff as a defending party on the counterclaim must make a prima facie showing he is entitled to judgment as a matter of law by showing:

(1) facts that negate any one of the claimant’s element facts,
(2) that the non-moving party, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or
(3)that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly pleaded affirmative defense.

Id. at 381.

The trial court found that Case had no ownership interest in the real estate under the building and that Case’s son owned the building because the son owned the land. The court further held that the three elements for personal property to become a fixture had been satisfied. The court concluded that only the owner of the building can ever maintain a claim for alleged defective construction. Additionally, the court found that Case was not the real party in interest because he did not own the underlying land.

We reverse the grant of 'summary judgment because Goff was not entitled to judgment as a matter of law.

This is apparently not a situation where Case was an agent acting for a principal (his son) either disclosed or undisclosed. Therefore, his obligation and rights under the construction contract are direct and personal. Goff does not claim, and did not below, that under the contract at the time of execution he had no duties of performance, including any duty to perform the job in a workmanlike manner. Rather, because of the subsequent discovery that Case lacked ownership of the underlying fee upon which he built the structure, he claims he owes no duty of performance to Case because Case’s son, not Case, owns the building. Additionally, he contends he owes no duty to Case’s son because he was not in privity as a party to the contract.

In so arguing, Goff implicitly acknowledges that his own rights and duties arise under the contract with Goff.

Goff points to no authority supporting the proposition that, as a matter of law, a promissor to a contract may avoid his duty of performance of a building contract based on the ownership of the land underlying the building. The reason for that lack of such authority is obvious. The law should not work such an injustice wittingly without strong justification. There is no rule of reason or logic that would support the argument made by Goff. Thus, based upon the record before us, we are not convinced that analogizing from the law concerning fixtures is dispositive of this matter, allowing for resolution by summary judgment.

The law of fixtures has developed as a way of regulating questions of ownership and the right to possession as between competing claimants as to ownership of the claimed fixture or personalty. Goff makes no such claim here. Even the law of fixtures itself shifts and changes emphasis depending upon the relationship between the competing claimants of those ownership or possessory interests. Although always within the general framework of the elements described earlier, the presumptions, inferences and emphasis change depending upon whether the interests involved are those of vendor/vendee, mortgagor-mortgagee, landlord-tenant, or licensee or others. See Thompson Real Property, Vol. 1, Chp. 2.

An agreement between the landowner and the owner of the fixture will always control as between themselves, but will not affect intervening third parties without notice of the agreement. Leawood Nat’l Bank v. City Nat’l Bank & Trust Co., 474 S.W.2d 641, 644 (Mo.App.1971). Examples of intervening third parties are purchasers, mortgages and condemnors. A landlord and tenant may agree that property remains the personalty of the tenant. In the absence of an agreement authorizing removal of the building, a presumption arises that the building has become part of the realty. Buhlinger v. United Firemen’s Ins. Co., 16 S.W.2d 699, 701 (Mo.App. 1929). If the relationship is licensor-licensee rather than landlord-tenant, a different result applies. Hill v. Eads, 970 S.W.2d 882, 884 (Mo.App.1998).

Structures built upon someone else’s land may remain the personal property of the builder. See, e.g., Holtgreve v. Sobolewski, 326 Mo. 412, 31 S.W.2d 993 (1930); Francis v. Garner, 56 S.W.2d 158 (Mo.App.1933); City of Ladue v. St. Louis Public Service Co., 168 S.W.2d 966 (Mo.App.1943); also see other cases collected in Gill, Treatise on Real Property Law in Missouri, Vol. 1, pp. 480-95. This may occur by agreement or by legal presumption that may vary depending upon the relational status of the parties involved. Under these cases, Case may maintain ownership of the building even though his son owns the underlying land.

Moreover, both parties acknowledge that, under a fixture law analysis, intent is the most important factor. The general principle that intent is a question of fact, not law, applies in this case. Wisdom v. Rollins, 664 S.W.2d 37 (Mo.App.1984). Although the record before the trial court did include facts concerning agreements, oral or written, (actually the absence of each) and lack of future intentions regarding the real estate and building, the record lacks the one bit of uncontroverted evidence necessary to uphold the summary judgment.

Even under the theory of fixtures law adopted by both parties, Goff, to prevail, was required to conclusively show that there was intent by Case, his son, or both, as to the ownership of the building at the time it was constructed. He has not done so and cannot, therefore, prevail on summary judgment. Moreover, there is no finding by the court or conclusive evidence as to what the legal relationship of Goff and his son was as to the building and land.

II.

Case’s second point on appeal is that, even if summary judgment be appropriate, the trial court erred in not allowing his son to be joined as a “third party defendant” upon a theory that he was a third party beneficiary to the contract. We need not resolve this alternative argument because of our disposition of Point I. We do observe, however, that in situations somewhat similar, the builder has joined the landlord in order to avoid any issue as to who is entitled to damages. Ozark Skyways, Inc. v. Bomark Steel Structures, Inc., 647 S.W.2d 170, 173 (Mo.App.1983).

As stated previously, we are not convinced the doctrine of fixtures has any real application to the situation herein. Nevertheless, even under a fixture analysis, Goff has not shown he is entitled to judgment as a matter of law.

For the reasons stated herein, we reverse and remand to the trial court for further proceedings.

EDWIN H. SMITH, Presiding Judge, and VICTOR C. HOWARD, Judge, concur.

      . Case’s claim against Goff was dismissed, leaving the summary judgment final for purposes of appeal.

      . The legal file contains a copy of the court's docket sheet indicating such a withdrawal.

      . Discovery indicated there was no agreement between father and son that the building not be considered part of the real estate, no agreement as to a division of proceeds if the property was sold, no agreement whether the building could be moved in the future, and Case did not list the building on his personal property assessment.

      .Case, in his response, noted that whether an article is a fixture is usually a question of fact but contended the court could resolve the issue by summary judgment since both parties were arguing that it could.

      . The three elements are (1) annexation to the realty, (2) adaptation of the article to the realty, and (3) intent of the annexor that the object become a permanent accession to the real estate. Wisdom v. Rollins, 664 S.W.2d 37, 39 (Mo.App.1984).

      . Nor is there an indication that the fee owner has or will deny access to the land or that there is any claim of the fee owner of trespass.

      . See Footnote 5.


source: Caselaw Access Project

author: PAUL M. SPINDEN, Judge.

license: Public Domain

text:
    A.C. JACOBS AND COMPANY, INC., and Tesson Heights Limited Partnership, Appellants-Respondents, v. UNION ELECTRIC COMPANY, Respondent-Appellant.
    Nos. WD 57388, WD 57436.
    Missouri Court of Appeals, Western District.
    May 16, 2000.

      Paul H. Gardner, Jr., Jefferson City, for appellants/respondents.
    Colly Durley, Columbia, for respondent/appellant.
   PAUL M. SPINDEN, Judge.

This appeal arises from a civil action filed by A.C. Jacobs and Company, Inc., and Tesson Heights Limited Partnership to recover electric rate overcharges from Union Electric Company. Before Tesson Heights filed its lawsuit, the Public Service Commission determined that Union Electric violated its rate classification tariffs by placing a retirement facility owned by Tes-son Heights on a multiple occupancy residential rate. The commission determined that the retirement facility should have been classified as a “large general service” customer from the inception of its service on October 1,1986, and continuing through December 81, 1993. The commission decided that it did not have authority to order Union Electric to refund overcharges to Tesson Heights but noted that Tesson Heights could seek recovery of the overcharges in a “court of-proper jurisdiction.” Tesson Heights, therefore, filed its petition for recovery of the overcharges with the circuit court.

The circuit court entered summary judgment for Tesson Heights and ordered Union Electric to refund $279,156.81 to Tesson Heights, but it entered summary judgment for Union Electric on Tesson Heights’ claim for prejudgment interest on the overcharges. Both parties appeal. Tesson Heights asserts that the circuit court erred in refusing to award prejudgment interest on its overcharge claim, and Union Electric asserts that the circuit court erred in not limiting Tesson Heights’ recovery of overcharges to 60 months as required by Union Electric’s Tariff Sheet 170. We affirm the circuit court’s judgment.

Union Electric contends that Tariff Sheet 170 is applicable to this action and limits Tesson Heights’ recovery of overcharges to a period not to exceed 60 months. Section V.G.3 of Tariff Sheet 170 says:

Bills rendered which are based on incorrect registrations due to improper meter connections, the application of an improper meter constant, improper application of any rate schedule not selected by customer, or similar reasons, shall be subject to adjustment for the current and twelve (12) prior billing periods for residential customers and for the current and sixty (60) prior billing periods, as can be substantiated by Company records, for non-residential customers. No billing adjustment will be made where the dollar amount of the adjustment is 2% or less of the amount previously billed for residential customers, nor less than $15.00 for non-residential customers. No interest shall be paid or collected on any billing adjustment provided for herein.

Union Electric filed this tariff sheet with the commission, and it became effective on May 5, 1990. “A tariff that has been approved by the Public Service Commission becomes Missouri law and has the same force and effect as a statute enacted by the legislature.” Bauer v. Southwestern Bell Telephone Company, 958 S.W.2d 568, 570 (Mo.App.1997).

Tesson Heights asserts that the tariff is not applicable to its case because it violates § 393.140(11), RSMo 1994. Section 393.140 outlines the powers that the General Assembly granted to the commission concerning its regulation of gas, water, electricity and sewer services. Tesson Heights seizes upon § 393.140(ll)’s provision that:

No corporation shall charge, demand, collect or receive a greater or less or different compensation for any service rendered or to be rendered than the rates and charges applicable to such services as specified in its schedule filed and in effect at the time; nor shall any corporation refund or remit in any manner or by any device any portion of the rates or charges so specified, nor to extend to any person or corporation any form of contract or agreement, or any rule or regulation, or any privilege or facility, except such as are regularly and uniformly extended to all persons and corporations under like circumstances.

This, however, does not provide for the recovery of all overcharges, as Tesson Heights contends, but authorizes the commission to establish rules and regulations “to carry into effect the provisions of the subdivision[.]” Section 393.140(11).

To help assure that Union Electric does not overcharge its customers, § 393.140(11) gives the commission authority to require Union Electric “to file with the commission and to print and keep open to public inspection schedules showing all rates and charges made, established or enforced or to be charged or enforced!.]” Nothing in § 393.140 prescribes how overcharges and refunds should be handled, so, to the extent that Tesson Heights argues that Tariff Sheet 170 violates § 393.140(11), its contention is without merit.

Moreover, § 393.130.1, RSMo 1994, says:

All charges made or demanded by any such gas corporation, electrical corporation, water corporation or sewer corporation for gas, electricity, water, sewer or any service rendered or to be rendered shall be just and reasonable and not more than allowed by law or by order or decision of the commission. Every unjust or unreasonable charge made or demanded for gas, electricity, water, sewer or any such service, or in connection therewith, or in excess of that allowed by law or by order or decision of the commission is prohibited.

The commission approved Tariff Sheet 170, so it has the same force and effect as a statute. Bauer, 958 S.W.2d at 570. By approving the tariff, the commission determined that Union Electric’s limiting recovery for billing adjustments to 60 prior billing periods for non-residential customers was just and reasonable, and any overcharges collected beyond the current and 60 prior billing periods was allowable.

Tesson Heights also argues that, because the commission cannot determine damages or award pecuniary relief, the commission had no jurisdiction to approve the 60 prior billing periods limit. The Supreme Court said long ago, “The power [of the commission] to pass on the reasonableness and lawfulness of rates necessarily includes the power to determine the reasonableness and lawfulness of such limitations of liability as are integral parts of the rates.” State of Missouri, ex rel. Western Union Telegraph Company v. Public Service Commission, 304 Mo. 505, 264 S.W. 669, 672 (Mo.banc 1924). The 60 prior billing period limit is a limitation of liability, not a determination of damages.

Moreover § 386.270, RSMo 1994, says:

All rates, tolls, charges, schedules and joint rates fixed by the commission shall be in force and shall be prima facie lawful, and all regulations, practices and services prescribed by the commission shall be in force and shall be prima facie lawful and reasonable until found otherwise in a suit brought for that purpose pursuant to the provisions of this chapter.

No lawsuit whose purpose is to challenge the tariff as unlawful or unreasonable pursuant to § 386.510, RSMo 1994, has been filed. The General Assembly, therefore, has mandated that we deem the “rates, tolls, charges, schedules and joint rates fixed by the commission” to be lawful and reasonable until, in a lawsuit litigating that issue, the commission or a court determines otherwise.

Tesson Heights also contends that the 60 prior billing periods limit applies only to “voluntary,” or “non-litigated,” recoveries of overcharges and does not apply to litigated cases involving a monetary award. We find no such distinction in the tariff. The tariff says, “Bills rendered which are based on ... improper application of any rate schedule not selected by the customer ... shall be subject to adjustment ... for the current and sixty (60) prior billing periods.” The commission found that Union Electric provided service to Tesson Heights under an improper rate classification that Tesson Heights did not select. Tariff Sheet1 170 is applicable to Tesson Heights’ claim for overcharges.

To figure out the amount of overcharges to which Tesson Heights is entitled, however, we must determine from what point to begin counting 60 prior billing periods and what falls within “current billing periods.” Union Electric asserts that Tariff Sheet1 170 applies to Tesson Heights’ claim for overcharges, and it contends that we should count only the 60 billing periods before Tesson Heights filed its complaint with the commission. We disagree.

The commission, in determining that Union Electric violated its rate classification tariffs, found that Tesson Heights was charged this rate from the beginning of its service with Union Electric on October 1, 1986. The commission also found that, in 1987 and in 1989, Tesson Heights asked Union Electric why its electric bills were so high and whether it was being charged according to the correct rate. The commission found that Union Electric responded to these inquiries by conducting energy efficiency audits of Tesson Heights’ facility and by suggesting various passive energy-saving measures. According to the commission, Union Electric did not mention to Tesson Heights any possible classification change to a general service rate. The commission also found that in 1993 Tesson Heights employed a consulting firm specializing in the examination of utility bills for the purpose of determining opportunities for savings. The consulting firm advised Tesson Heights of the possibility of obtaining a lower commercial rate, and, on January 1,1994, Union Electric voluntarily changed Tesson Heights’ rate to the large general service classification. On August 25, 1994, Tesson Heights filed its complaint with the commission, seeking the commission’s determination that Union Electric improperly classified it on the residential service rate schedule from October 1,1986, though December 31,1993.

Union Electric wants us to assume that we start counting backwards for the 60 prior billing periods from the date Tesson Heights filed its complaint with the commission on August 25, 1994. If we did this, however, eight months of the 60 prior billing periods would be for bills in which Union Electric had already placed Tesson Heights on a lower billing rate. That seems illogical, so we reject the argument.

“[W]e analyze a tariff as we do a statute. If ... a tariff ... is clear and unambiguous, we cannot give it another meaning.” Allstates Transworld Vanlines, Inc. v. Southwestern Bell Telephone Company, 937 S.W.2d 314, 317 (Mo.App.1996). “In determining whether the lan guage of a tariff is clear and unambiguous, the standard is whether the tariffs terms are plain and clear to one of ordinary intelligence.” Id.

The terms of Tariff Sheet1 170 are ambiguous. The tariff says, “Bill rendered which are based on ... improper application of any rate schedule not selected by customer ... shall be subject to adjustment ... for the current and sixty (60) prior billing periods, as can be substantiated by Company records, for non-residential customers.” The tariff does not inform us from what date we should start to count backwards for the 60 prior billing periods, and it does not explain what it means by “current” billing periods.

A reasonable interpretation is that we would start to count backwards for the 60 prior billing periods from the date Tesson Heights inquired of Union Electric as to whether it was on the appropriate rate. At that point, so long as company records could substantiate the overcharge, Tesson was entitled to any overcharges incurred in the previous 60 billing periods. Therefore, Tesson Heights would be entitled to all of the overcharges it incurred from the date it inquired of Union Electric about its rate in 1987 back to the inception of its service on October 1,1986.

Moreover, to rule as Union Electric contends would give Union Electric the incentive to put off a customer’s complaints about its rate for as long as it could in hopes that if it put the customer off for more than 60 billing periods any overcharges it collected would blunt the cost of a refund. In other words, putting off a customer for another 60 months after overcharging him for 60 months would result in the utility’s breaking even when it finally made a refund. We reject such a reading of the law as unreasonable:

It is the clear intent of the public service commission law that utilities shall, without the supervision of their customers, provide adequate service at only the correct rate, and no more. This is a duty imposed by law. It was, we believe, the purpose of the legislature, not that customers be required to employ experts to verify the correctness of rates charged, but rather that they might rely on the [utility] company for proper adherence to its approved rate tariffs.

De Paul Hospital School of Nursing, Inc. v. Southwestern Bell Telephone Company, 539 S.W.2d 542, 547 (Mo.App.1976).

Tariff Sheet1 170 says, however, that the bills should be subject to adjustment for the “current billing periods.” Which billings are current is difficult to identify in this case, but the most logical interpretation, and therefore the one we adopt, is that, because Tesson Heights had incurred overcharges which could be substantiated by company records and because Tesson Heights inquired about the rate and Union Electric did nothing to address the rate issue directly, Tesson would also be entitled to the “current” overcharges it incurred from the date it inquired about the rate counting forward until the date it resolved its inquiry with Union Electric — the date of the commission’s decision. We, therefore, conclude that the circuit court did not err in concluding that Tesson Heights was entitled to all of the overcharges it incurred in the amount of $279,156.81.

Tesson Height asserts, however, that the circuit court erred in refusing to award prejudgment interest on its overcharge claim. We disagree. Tariff Sheet1 170 says, “No interest shall be paid or collected on any billing adjustment provided for herein.” Section 408.020, RSMo 1994, which provides that a nine percent rate of interest is payable for amounts due under contracts when no rate of interest is specified, does not apply in this case. Section 408.020 is inapplicable when a different rate is agreed upon by the parties. Bolivar Insulation Company v. R. Logsdon Builders, Inc., 929 S.W.2d 282, 286 (Mo.App.1996). The business relationship between a utility and its customers is rooted in contract. National Food Stores, Inc. v. Union Electric Company, 494 S.W.2d 379, 381 (Mo.App.1973). Because the tariff was approved and filed by the commission, we may presume that Union Electric and its customers knew the contents and effect of the tariffs. Bauer, 958 S.W.2d at 570. Thus, because Tariff Sheet1 170, which was part of the regulatory contract governing the relationship between Tesson Heights and Union Electric, specifically provided that no interest would be paid on billing adjustments, § 408.020 is not applicable.

We, therefore, affirm the circuit court’s summary judgment in favor of Tesson Heights on its claim for overcharges and the circuit court’s summary judgment in favor of Union Electric denying Tesson Heights’ claim for prejudgment interest on the overcharges.

JOSEPH M. ELLIS, Presiding Judge, and THOMAS H. NEWTON, Judge, concur.

      . We refer to A.C. Jacobs and Company, Inc., and Tesson Heights Limited Partnership collectively as Tesson Heights.

      . The commission relied on DeMaranville v. Fee Fee Trunk Sewer, Inc., 573 S.W.2d 674 (Mo.App.1978), for concluding that it did not have the authority to order á refund because its order would constitute a monetary or pecuniary award or refund.

      .According to Tesson Heights, if we applied Tariff Sheet 170 as urged by Union Electric, it would allow Union Electric to retain approximately $106,588.27 in overcharges unlawfully collected from Tesson Heights from October 1, 1986, through August 1989 and reduce Tesson Heights’ overcharge recovery from $279,156.81 to $172,568.54.

      . We added the emphasis.

      . Tesson Heights asserts that Tariff Sheet 170 could not limit its recovery of overcharges before the May 5, 1990, effective date of the tariff because applying it before then would constitute an improper retrospective application of the tariff under Mo. Const, art I, § 13 (1945), which says, "[N]o ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.” Because the tariff is procedural or remedial only and does not affect the parties’ substantive rights, it would be applicable to all of Tesson Heights’ overcharges. "A new enactment which only affected the remedy has no effect upon vested rights; does not impair the obligation of contracts; and may control in the decision of a case.” Aetna Ins. Co. v. Hyde, 315 Mo. 113, 285 S.W. 65, 68 (Mo.banc 1926), cert. dismissed, 275 U.S. 440, 48 S.Ct. 174, 72 L.Ed. 357 (1928).

      . Although not applicable to this action, the commission enacted a regulation, 4 CSR 240-13.025(1)(A), applicable to service and billing practices for residential customers. The regulation became effective on July 10, 1994, and supports our interpretation of the tariff. The regulation says, "In the event of an overcharge, an adjustment shall be made for the entire period that the overcharge can be shown to have existed not to exceed sixty (60) consecutive monthly billing periods, or twenty (20) consecutive quarterly billing periods, calculated from the date of discovery, inquiry or actual notification of the utility, whichever comes first[.]”


author: HAROLD L. LOWENSTEIN, Presiding Judge.

text:
    ESTATE OF Kayla Marie CASTEEL, Minor, Plaintiff, Betsy G. Casteel,, Appellant, v. GUARDIAN AD LITEM, Respondent.
    No. WD 57185.
    Missouri Court of Appeals, Western District.
    May 16, 2000.

      William P. Cronan, Columbia, for appellant.
    Mick D. Wilson, Ashland, for respondent.
    Before: Presiding Judge HAROLD L. LOWENSTEIN, Judge JAMES SMART and Judge THOMAS NEWTON.
   HAROLD L. LOWENSTEIN, Presiding Judge.

The issue raised in this appeal is whether letters of guardianship to a parent for her minor child, must terminate when the child turns eighteen. Though not raised, there is a more fundamental question of jurisdiction in the trial court to grant a parent letters of guardianship of a minor child. Appellant mother applied for guardianship over her minor daughter. The trial court granted letters of guardianship of a minor but held the guardianship would terminate upon the minor’s eighteenth birthday. Mother filed this appeal because the court failed to extend the guardianship- past the child’s eighteenth birthday. The dispositive question here, however, is whether there is statutory authority for Appellant to receive letters of guardianship of a minor for her child.

FACTS

.Kayla Marie Casteel, born June 15, 1982, is the adopted daughter of Appellant Betsy G. Casteel and Don Casteel, who is not a party to this suit. Kayla suffers from reactive attachment disorder and bipolar disorder. In the words of her psychiatrist, “Kayla has been having significant mood swings, .unpredictable behavior, constant defiance, disobedience, and lack of accepting personal responsibility...She will not take personal responsibility for taking her medication...She requires consistent supervision by an adult caretaker.”

On March 17, 1999, Kayla’s mother, Appellant Betsy Casteel, filed a “Petition for Appointment of Guardian and/or Conservator” in the trial court. Appellant requested to be appointed guardian/conservator for Kayla due to Kayla’s “mental illness.” Appellant reasoned that, “[Kayla] is unable to manage her finances or herself, and needs a guardian/conservator to look out for her interest.” Appellant asked the court to find Kayla was incapacitated and/or disabled. Additionally, Appellant filed a like petition for Kayla’s brother David, born April 16, 1981, and later adopted by Appellant. In a letter from the deputy clerk/ the court refused to accept Appellant’s petitions. The letter detailed that since both children were under 18 years of age, petitions specifically designated for minors needed to be filed. Consequently, Appellant re-filed “Petition for Appointment of Guardian and/or Conservator of Minor” for both the children. The allegations contained therein were nearly identical to those alleged in the initial petitions. However, the minor petitions did not provide for a finding of incapacity or disability.

The minors were appointed a guardian ad litem and the matter was set for hearing on April 12, 1999. At the hearing, the court expressed that in dealings with a minor, the court will only appoint a guardian on the basis that the individual is in fact a minor. The court would not consider appointing a guardian to a minor on the basis of incapacity or disability. The court stated, “as far as adjudicating based on mental disease or illness or any other matter of that, for children, we don’t.” The court stated that it would appoint guardians for the two minors but that the guard-ianships would terminate upon each minor’s eighteenth birthday, when each reached the age of emancipation. Since David was nearly eighteen, and in order to avoid a short guardianship period prior to termination, the court continued his guardianship proceeding until his eighteenth birthday. As to Kayla, the court granted Appellant guardianship letters that are to terminate upon Kayla’s eighteenth birthday, June 18, 2000. Additionally, as there was no evidence of property owned or income received by the minor, the court denied Appellant’s conservator appointment request.

ANALYSIS

Appellant’s single point relied on is that the trial court erred in refusing to issue letters of guardianship for a minor child that would continue beyond that minor’s eighteenth birthday. Appellant claims that Missouri’s statutory scheme permits the court to find a minor disabled and/or incapacitated and to issue letters of guardianship upon that basis which would not terminate upon the minor’s majority birthday. Specifically, Appellant wrote:

The Court erred in declining to accept jurisdiction to order a guardianship for a disabled minor that would continue beyond the age of majority because the statutes permit such an order and the evidence presented clearly shows the Appellant is entitled to such an order.

As detailed above, Appellant originally filed with the court, petitions for letters of guardianship based upon disability or incapacity. However, the clerk of court requested Appellant change the petitions to those designated for guardianship of a minor, and Appellant complied without objection. There is nothing in the record to indicate that the clerk was acting by order of the court. At the hearing, the following exchange took place between the judge and Appellant’s counsel:

The Court: ...if an individual is under 18, they are minors...as far as adjudicating based on mental disease or illness or any other matter of that, for children, we don’t.
Counsel: That isn’t what I asked the Court to do...

By counsel’s own admission, Appellant was not requesting the court to grant letters of guardianship based on disability or incapacity. Since Appellant acquiesced in the clerk’s request, rather than challenging it when she filed her amended petition based solely on minority, that issue was not before the court, and Appellant cannot now appeal on that basis of error. An appellate court will not convict a trial court of error on an issue that was never presented to it for consideration. McMahan v. Missouri Dept. of Social Services, Div. Of Child Support Enforcement, 980 S.W.2d 120, 127 (Mo.App.1998) citing Guzzardo v. City Group, Inc., 910 S.W.2d 814, 317 (Mo.App.1995). When Appellant filed her amended petition, she thereby abandoned her original petition, and it may not be considered for any purpose. Evans v. Eno, 903 S.W.2d 258, 260 (Mo.App.1995). This court finds Appellant failed to preserve this issue for review. Additionally, the court recognizes it is unclear whether or not a party can request letters of guardianship over a minor child based on disability or incapacity. See Mo. Practice, Probate Law and Practice, Chapter 35, § 1890. However, due to this court’s holding that that issue was not before the trial court, the uncertainty need not now be resolved.

The only petition before the court for its consideration, was a petition for guardianship based solely on the minority of the child. Only the court’s actions as to that petition may be reviewed by this court. § 475.030.4, RSMo 1994, details when letters of guardianship of the person of a minor may be granted. It provides for guardianship under one of three circumstances:

(1) Where a minor has no parent living;
(2) Where the parents or the sole surviving parent of a minor are unwilling, unable or adjudged unfit to assume the duties of guardianship;
(3) Where the parents or the sole surviving parent have had their parental rights terminated under chapter 211, RSMo.

In Reece v. Reece, 890 S.W.2d 706, 710 (Mo.App.1995), this court held:

letters of guardianship for a minor should not issue unless there is no parent available, willing or, able to fulfill the parental role in caring for a child and providing for that child’s needs as natural guardian. It is only when no natural guardian is fulfilling the parental duties and obligations is appointment of a statutory guardian necessary.

Based on the above, letters of guardianship for Kayla should not have been granted. None of the three circumstances listed in § 475.030.4 exists; Kayla’s parents are both living, there has been no claim that the Appellant mother is unwilling, unable or unfit to be Kayla’s guardian and Appellant’s parental rights have not been terminated. The trial court lacked the jurisdiction under § 475.030.4 to grant letters to the Appellant for her minor child, rendering the letters void ab initio.

CONCLUSION

By § 475.030.4, letters of guardianship for a minor shall only issue if one of three circumstances exist. None of those circumstances is present in this action, and no guardianship should have been granted. Although the mother’s attempt here is commendable, the trial court lacked jurisdiction to grant letters to Appellant over her minor child. The Appellant should look to promptly file, on June 18, 2000, Kayla’s eighteenth birthday, an application for letters of guardianship based upon her adult child’s disability. The judgment granting letters of guardianship until June 18, 2000, is reversed. -

All Concur.

      . All further statutory references are to the Revised Statutes of Missouri, 1994.


author: PATRICIA BRECKENRIDGE, Chief Judge.

text:
    Carmen SCHULZE, Director, Missouri Department of Social Services, Division of Family Services, Respondent, v. George ERICKSON, Appellant.
    No. WD 56991.
    Missouri Court of Appeals, Western District.
    May 16, 2000.

      Cynthia A. Barchet, Columbia, for appellant.
    Gerald L. Meyr, Jefferson City, for respondent.
    Before BRECKENRIDGE, C.J., LAURA DENVIR STITH and RIEDERER, JJ.

      . Judge Riederer resigned from this court pri- or to the issuance of this opinion.

   PATRICIA BRECKENRIDGE, Chief Judge.

George Erickson appeals from an order of the Circuit Court of Cole County which reversed an order issued by the Personnel Advisory Board (PAB) that had reinstated him to his position with the Division of Family Services (DFS) and awarded him back pay. Because the order issued by the PAB was not final and appealable, this court does not have jurisdiction to hear the appeal. The appeal is dismissed.

Factual and Procedural Background

Mr. Erickson was employed by DFS as a Social Service Worker II in its Randolph County office. Mr. Erickson was notified by letter that he was dismissed from his positionfor inadequate job performance and willful violation of agency policies. Mr. Erickson appealed his dismissal to the PAB. A hearing was held before the PAB. The PAB issued its findings of fact, conclusions of law, decision and order reinstating Mr. Erickson to his former position and awarding him back pay. DFS filed a petition in the Circuit Court of Cole County for judicial review of the PAB’s decision. The Circuit Court of Cole County issued findings of fact, conclusions of law, and its judgment and order on February 9, 1999, reversing the decision and order of the PAB. This appeal followed.

No Jurisdiction to Hear Appeal From PAB Since PAB Order Not Final

Although the parties do not address it, this court must determine its jurisdiction to hear an appeal sua sponte. Transit Casualty Company In Receivership v. Certain Underwriters At Lloyd’s Of London, 995 S.W.2d 32, 34 (Mo.App.1999). “ [Jurisdiction is the ‘right, power and authority of the court to act.’” Id. (quoting City of Jackson v. Southard, 869 S.W.2d 280, 282 (Mo.App.1994)). The right to appeal is statutory. Mo. Const. Art. V, § 5; Committee for Educ. Equality v. State of Missouri, 878 S.W.2d 446, 450 (Mo. banc 1994). An appellate court lacks jurisdiction to hear an appeal if it is not authorized by statute. See Abmeyer v. State Tax Commission, 959 S.W.2d 800, 801 (Mo. banc 1998).

The statutory structure for review of the dismissal of a state employee begins with the rights granted by § 36.390, RSMo 1994. Section 36.390.5 sets out the procedure for an employee to challenge the employee’s dismissal. Section 36.390.5(1) reads:

Any regular employee who is dis- - missed ... for cause ... may appeal in writing to the [personnel advisory] board within thirty days after the effective date thereof, setting forth in substance the employee’s reasons for claiming that the dismissal ... was for political, religious, or racial reasons, or not for the good of the service. Upon such appeal, both the appealing employee and the appointing authority whose action is reviewed shall have the right to be heard and to present evidence at a hearing which, at the request of the appealing employee, shall be public.... After the hearing and consideration of the evidence for and against a dismissal, the board shall approve or disapprove such action and may make any one of the following appropriate orders:
(1) Order the reinstatement of the employee to the employee’s former position and the payment to the employee of part or all of such salary as has been lost by reasons of such dismissal^]

A party who is dissatisfied with a decision of the PAB may appeal that decision pursuant to § 36.390.9. Section 36.390.9 states, in pertinent part, that “[decisions of the personnel advisory board shall be final and binding subject to appeal by either party. Final decisions of the personnel advisory board pursuant to this subsection shall be subject to review on the record by the circuit court pursuant to chapter 536, RSMo.” A party aggrieved by the judgment of the circuit court can appeal the judgment as in other civil cases. Section 536.140.6. However, an appellate court reviews the decision of the PAB, not the decision of the circuit court. Reeves v. Singleton, 994 S.W.2d 586, 590 (Mo.App.1999).

For judicial review of a decision of the PAB, the decision must be final. As noted, § 36.390.9 provides that “\f\inal decisions of the personnel advisory board” are subject to review by the circuit court. (Emphasis added). Section 536.100 requires that a party be “aggrieved by a final decision in a contested case to be entitled to judicial review” of an agency decision as provided in §§ 536.100 to 536.140. (Emphasis added).

A final disposition in an agency proceeding occurs whenever the decision disposes of all issues as to all parties and leaves nothing for future determination. Davis v. Angoff, 957 S.W.2d 340, 343 (Mo.App.1997). There is a lack of cases addressing when an agency decision disposes of all the issues, so this court looks for guidance to cases that analyze the finality of circuit court judgments. For a judgment in the circuit court to be final, it must dispose of a “judicial unit.” Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). A “judicial unit” must be a final judgment on a claim, not a ruling on fewer than all issues which does not dispose of a claim. Id. The determination of back pay is analogous to the determination of compensatory damages. Damages are considered an essential element of a claim. Clay County ex rel. County Commission of Clay County v. Harley and Susie Bogue, Inc., 988 S.W.2d 102, 109-110 (Mo.App.1999).

In this case, Mr. Erickson appealed his dismissal to the PAB. The PAB held a hearing on Mr. Erickson’s dismissal. After the hearing, pursuant to § 36.390.5, the PAB had to (1) approve or disapprove Mr. Erickson’s dismissal, and (2) if it disapproved of his dismissal, it could order his reinstatement and some or all of his back pay. The PAB subsequently issued its findings of fact, conclusions of law, decision and order stating that “[t]he Board orders the Appellant to be reinstated to his former position and paid the salary lost by reason of his dismissal.”

The PAB’s determination that Mr. Erickson is entitled to back pay is not a complete adjudication of that issue, however. The PAB’s order did not state how Mr. Erickson’s back pay would be calculated, nor did it adjudge an amount owed. “An improperly dismissed public employee is entitled upon reinstatement to recover his lost back pay from the date of termination to the date of his reinstatement.” Gamble v. Hoffman, 695 S.W.2d 503, 509 (Mo.App.1985). However, under the rule of avoidable consequences, the amount of back pay must be offset by such sums the employee has earned or could have earned from other employment, Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138, 144-45 (Mo. banc 1974), or which he has received as unemployment benefits during, the period he has been deprived of his employment. DeSilva v. Director, Division of Aging, Department of Social Services, 714 S.W.2d 690, 693 (Mo.App.1986). The purpose of § 36.390(5)(1) is to make the wrongfully discharged employee whole, not to provide a windfall “whereby the employee receives his full salary for time off the job plus whatever he earned during that period from other employment.” Wolf 517 S.W.2d at 144. The determination of back pay can and should be determined by the Personnel Board after an evidentiary hearing. Id. at 145.

In this case, no evidence was presented to the PAB by either party with regard to back pay. Without any evidence before it, the PAB could not adjudicate this issue. Thus, the calculation and amount of Mr. Erickson’s back pay has yet to be determined by the PAB. While the PAB’s order established Mr. Erickson’s entitlement to back pay, it did not determine the amount Mr. Erickson earned or could have earned during the period he was deprived of his employment, and whether he received any unemployment benefits. These determinations were necessary for the PAB to order the appropriate amount of back pay and for the order issued by the PAB to be considered final for purposes of appeal.

By not ascertaining the amount of Mr. Erickson’s back pay, the PAB decided fewer than all legal issues as to his wrongful dismissal claim. Thus, the PAB’s order is not a final and appealable order as required under § 36.390.9 for review, and subsequently, this court is without jurisdiction to hear the appeal. Likewise, the circuit court was without jurisdiction to enter its findings of fact, conclusions of law, and its judgment and order reversing the decision and order of the PAB. Thus, the PAB must adjudicate the issue of back pay before an order in this case will be considered final and appealable.

The appeal is dismissed.

All concur.

      . All statutory references are to the Revised Statutes of Missouri 1994.

      . McGhee v. Dixon, 973 S.W.2d 847, 849-50 (Mo. banc 1998), overrules the principle established in Wolf, 517 S.W.2d at 147-48, that a reinstated employee’s attorney fees and reasonable expenses, spent to obtain reinstatement, should be subtracted from the. earnings from substitute employment which mitigate the lost back pay. Judge Holstein, in his concurring opinion, argued that the entirety of the equitable rule of avoidable consequences should be abandoned. McGhee, 973 S.W.2d at 850-51. Nevertheless, the majority opinion in McGhee expressly stated in footnote 2 that since the appellant did not attack the viability of the rule of avoidable consequences, the Court did not address the issue. 973 S.W.2d at 850.


author: ULRICH, Presiding Judge.

text:
    Debra J. SMITH (Hoyle), Respondent, v. Noel Kenneth SMITH, Appellant.
    No. WD 56274.
    Missouri Court of Appeals, Western District.
    May 16, 2000.

      Nicholas L. Swischer, Nevada, for appellant.
    James R. Bickel, Nevada, for respondent.
    Before ULRICH, P.J., EDWIN H. SMITH, J. and HOWARD, J.
   ULRICH, Presiding Judge.

Noel Smith (Father) appeals the judgment of the trial court on Debra Smith’s (Mother) motion to reinstate child support after the parties’ children had been emancipated and child support had terminated. The judgment appealed awarded Mother $2550 and ordered Father to hold Mother harmless for one-half of medical expenses totaling $20,601.53 incurred by one child after January 1,1997. Father also appeals the judgment of the trial court denying his claim against Mother for reimbursement of child support paid after the parties’ two children were emancipated. The judgment of the trial court is reversed, and the case is remanded with directions.

Father and Mother were divorced in April 1981. Mother was awarded sole legal and physical custody of the parties’ two minor children, Jennifer Smith and Rebekah Smith, and Father was ordered to pay $50 per month per child as child support. Eventually, Father’s monthly child support obligation increased to $150 per child.

In August 1996, the parties’ younger daughter, Rebekah, then sixteen years old, moved out of Mother’s home and began a relationship with a married man. In September 1996, after completing one year of college, Jennifer, the parties’ older daughter, moved in with her forty-seven year old boyfriend. In January, Mother sent a letter to the clerk of the circuit court indicating that both Jennifer and Rebekah were emancipated as of January 1, 1997, and that child support from Father would no longer be required. Thereafter, Father discontinued his child support payments.

That summer, Mother hospitalized Rebekah in a drug rehabilitation program for approximately one month incurring over $25,000 in medical bills. After Rebekah was released from the hospital, she returned to Mother’s home until May 1998. Because Rebekah had returned home, Mother filed a motion to reinstate child support in September 1997. In the motion, Mother requested the court to reinstate the child support order and order Father to pay a portion of Rebekah’s medical expenses incurred that summer and a portion of Jennifer’s college expenses. In response, Father filed a crossclaim requesting reimbursement of child support paid from September through December 1996 after the children were emancipated.

Following a hearing on Mother’s motion and Father’s counter motion, the trial court entered its judgment awarding Mother $2550, the amount of the federal income tax deduction taken by Father for Jennifer, and ordering Father to hold Mother harmless for one-half of Rebekah’s medical expenses totaling $20,601.53. The court denied all other relief requested by the parties. This appeal by Father followed.

■ [1] Review of a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Thus, the judgment of the trial court will be affirmed on appeal unless no substantial evidence supports it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. at 32.

I.

In his first point on appeal, Father claims that the trial court erred in ordering him to hold Mother harmless for one-half of medical expenses totaling $20,-601.53 incurred by Rebekah after January 1, 1997, based on a common law duty to support the child. He correctly contends that any common law duty to support the child ended upon her emancipation.

Chapter 452 of the Missouri Revised Statutes governs a parent’s duty to support the parent’s child. The purpose of the chapter is to provide a procedure for obtaining maintenance for the child and for determining in advance the extent of the common law obligation of the parents and the means of enforcing it against them. Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731, 750 (Mo. banc 1950); Davis v. Sullivan, 762 S.W.2d 495, 498 (Mo.App. W.D.1988). A judgment for child support granted pursuant to Chapter 452 is substituted for the common law liability for support that would otherwise exist. Lodahl v. Papenberg, 277 S.W.2d 548, 551 (Mo.1955); Gardine, 230 S.W.2d at 750; Davis, 762 S.W.2d at 498. A custodial parent, therefore, has a common law right to recover from the noncustodial parent the necessary and reasonable support and maintenance furnished by the custodial parent for a child only where a custody decree is silent as to child support or where a child support judgment has become ineffective. In re Marriage of D.M.S., 648 S.W.2d 609, 615 (Mo.App. W.D.1983); Pourney v. Seabaugh, 604 S.W.2d 646, 650 (Mo.App. E.D.1980). The statutory child support provision invoked by a proceeding in' dissolution of marriage, or subsequent motion, is for future support, and the independent common law action is for expenses already incurred. Lodahl, 277 S.W.2d at 551. The two remedies, statutory and common law, are coterminous and not concurrent, one beginning where the other ends: Id. Use of the appropriate remedy is determined by the facts. Id.

Section 452.370.4 provides that a parent’s duty to support the parent’s child is “terminated by emancipation of the child.” § 452.370.4. Emancipation is the “freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the' relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.” Ragan v. Ragan, 931 S.W.2d 888, 890 (Mo.App. S.D.1996)(quoting In re Marriage of Hughes, 773 S.W.2d 897, 899 (Mo.App. S.D.1989)). “The purpose of this statutory provision is to ‘make it absolute’ that unless there are contrary provisions in the dissolution decree or the separation agreement, the child support obligation ends upon the child’s emancipation and does not automatically continue during the child’s minority.” Ragan, 931 S.W.2d at 890.

In this case, an effective child support judgment entered pursuant to Chapter 452 existed. The trial court found that Jennifer was emancipated in September 1996 and that Rebekah was emancipated in August 1996. Neither party disputes the validity of the findings of emancipation. The court’s findings of emancipation under section 452.370.4 terminated Father’s duty to support Jennifer and Rebekah “for all the period of [their] minority.” Ragan, 931 S.W.2d at 890. Thé existence of the judgment finding that the parties’ daughters were emancipated extinguished Mother’s common" law action for the daughters’ necessaries. The trial court, therefore, erred in its application of the law in ordering Father to hold Mother harmless for one-half of Rebekah’s medical expenses incurred after her emancipation.

II.

In his second point on appeal, Father claims that the trial court erred in awarding Mother $2550, the amount representing the income tax deduction Father took for Jennifer in 1997 on his 1996 federal income tax return. Evidence presented at trial revealed that because Father’s income was less than Mother’s, Mother and Father agreed that Father would claim Jennifer as a dependent on his 1996 federal tax return so that Jennifer would qualify for a larger student loan. Mother also claimed at trial that -Father agreed to pay off the student loan for Jennifer’s 1997-1998 school year in return for taking the tax deduction but did not fulfill this promise. Father denied making such an agreement. The trial court found that Father was unjustly enriched in 1997.,by $2550, “the amount of the tax deduction which he received which he was otherwise not entitled to and for which he.gave up nothing.” Father claims that the court erred in making the award based on unjust enrichment because Mother did not plead unjust enrichment. Father also argues that even if the issue was properly before the court, the court erred in awarding $2550, the amount of the deduction, because the deduction resulted in net tax savings to him of only $407.

In her motion to reinstate child support, Mother requested the court to order Father to pay a portion of Jennifer’s college expenses. Mother’s claim that Father owed her financial compensation because Father was unjustly enriched by taking a deduction for Jennifer as a dependent child on his 1996 federal income tax return, however, was not specifically pleaded by Mother in her motion. Nevertheless, the issue of unjust enrichment was tried by consent. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Rule 55.33(b); Land Improvement, Inc. v. Ferguson, 800 S.W.2d 460, 463 (Mo.App. W.D.1990). Both parties in their opening state ments referred to the issue of the dependent child deduction. Furthermore, both Mother and Father testified at trial concerning the issue. Father never objected to evidence on the issue on the ground that it was not within the issues defined by the pleadings. The issue of unjust enrichment was, therefore, properly before the trial court.

Unjust enrichment occurs when a person retains and enjoys the benefit conferred upon him without paying its reasonable value. Landmark Systems, Inc. v. Delmar Redevelopment Corp., 900 S.W.2d 258, 262 (Mo.App. E.D.1995). A person who has been unjustly enriched at the expense of another is compelled to make restitution to the other. Venture Stores, Inc. v. Pacific Beach Co., Inc., 980 S.W.2d 176, 186 (Mo.App. W.D.1998). The essential elements of an unjust enrichment claim are: (1) a benefit conferred on a plaintiff by a defendant, (2) the defendant’s appreciation of the fact of the benefit, and (3) the defendant’s acceptance and retention of the benefit in circumstances that would render that retention inequitable. Id. The measure of recovery in an unjust enrichment action is not the actual amount of the enrichment, but the amount of the enrichment, which, as between the parties, would be unjust for one party to retain. Johnson Group, Inc. v. Grasso Bros., Inc., 939 S.W.2d 28, 29 (Mo.App. E.D.1997).

In this case, the evidence was undisputed that the parties agreed that Father would take the income tax deduction for Jennifer on his 1996 tax return, a deduction Mother was entitled to as the custodial parent. See Jordan v. Jordan, 984 S.W.2d 878, 883 (Mo.App. W.D.1999). The evidence was disputed, however, about whether Father promised to help pay Jennifer’s student loans. Mother testified that Father made such agreement. Father denied that he did. Father did not pay any of Jennifer’s student loans. The credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of any witness’s testimony. House v. Director of Revenue, State of Missouri, 997 S.W.2d 135,139 (Mo.App. S.D.1999). Based on its judgment, the trial court apparently believed that Father agreed to help pay off Jennifer’s student loans in exchange for claiming her as a dependent child on his 1996 income tax return. A benefit was, therefore, conferred on Father by Mother, the retention of which would have been inequitable under the circumstances.

The trial court, however, erred in awarding Mother $2550, the amount of the tax deduction. The amount of the enrichment, which, as between the parties, would have been unjust for Father to retain, was not the amount of the deduction. The amount of recovery to be experienced by Mother is not the actual amount of the enrichment received by Father but is the amount of the enrichment that, as between the parties, would be unjust for Father to retain. Zipper v. Health Midwest, 978 S.W.2d 398, 412 (Mo.App. W.D.1998). That sum is determined by figuring the benefit Mother would have experienced on her 1996 tax returns had she declared the parties’ child as her dependent provided the amount realized does not exceed the amount of the benefit Father received by declaring the child his dependent on his 1996 income tax returns. The benefit conferred on Father by Mother was not $2550 but rather the tax savings he enjoyed as a result of the extra deduction from gross income. Neither evidence of such tax savings experienced by Father nor evidence of what Mother’s tax benefit would have been had she declared the parties’ child her dependent on her 1996 income tax returns was presented at trial. The cause is, therefore, remanded to the trial court for receipt of additional evidence and for determination of the proper measure of recovery.

III.

In Father’s last point on appeal, he claims that the trial court erred in denying his claim against Mother for reimbursement of $1200 for child support paid after the two children were emancipated. Father contends that under section 452.370.4, Mother’s failure to immediately notify him of the children’s emancipation compels Mother’s liability for the overpayment.

Section 452.370.4 provides: Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child. The parent entitled to receive child support shall have the duty to notify the parent obligated to pay support of the child’s emancipation and failing to do so, the parent entitled to receive child support shall be liable to the parent obligated to pay support for child support paid following emancipation of a minor child, plus interest.

§ 452.370.4. The use of the word “shall” in section 452.370.4 indicates a mandatory duty of the custodial parent to notify the noncustodial parent when a child may be emancipated. Wyrick v. Coles, 834 S.W.2d 910, 913 (Mo.App. W.D.1992); Blackman v. Blackman, 767 S.W.2d 54, 61 (Mo.App. W.D.1989). Where a custodial parent fails to give the required notice, the parent is responsible for child support paid subsequent to the actual date of emancipation as found by the trial court. Wyrick, 834 S.W.2d at 913.

In this case, the record reveals that Rebekah moved out of Mother’s house, was no longer dependent on Mother, and began a conjugal relationship with a man in August 1996. In September 1996, her sister, Jennifer, moved from Mother’s home and moved in with her forty-seven year old boyfriend. Jennifer, too, was no longer dependent upon Mother. In January 1997, Mother notified the clerk of the circuit court that the children were emancipated and that child support from Father was no longer required. Nothing in the record indicates that Mother notified Father in the fall of 1996 that the children had moved from her home, were no longer dependent on Mother, and may be emancipated. Father paid child support in the amount of $150 per. child per month (for a total of $1350) between August 1996 and January 1997. Mother returned $150 to Father during this time.

The trial court found that Rebekah was emancipated in August 1996 and that Jennifer was emancipated in September 1996. The court also found that the child support paid by Father in the fall of 1996 was either refunded to him or “passed on to the children as gifts from Dad.” The court concluded, “In light of the large expenses [Mother] has under taken voluntarily on behalf of the children it would be unjust arid inappropriate for a court of equity to order reimbursement.” Under a correct application of the law, however, Mother is liable to Father for child support paid to her following emancipation of Rebekah and Jennifer despite Mother’s voluntary assumption of large debts in behalf of her emancipated daughter where Mother failed to notify Father of the children’s emancipation. Although the evidence revealed that Mother gave some of the money paid by Father for child support to her daughters after they moved out, no evidence was presented that Mother notified Father of the children’s emancipation before January 1997 or that Father consented to the Mother’s giving the children his child support payments. The trial court erred, therefore, in denying Father’s claim against Mother for reimbursement of $1200 for child support paid after the two children were emancipated.

The judgment of the trial court is reversed, and the case is remanded to the trial court for receipt of additional evidence and determination of the proper measure of recovery under Mother’s unjust enrichment claim and for entry of a judgment in favor of Father for $1200 for reimbursement of child support paid after the emancipation of Rebekah and Jennifer.

EDWIN H. SMITH, J. and HOWARD, J. concur.

      . All statutory references are to RSMo Cum. Supp.1998 unless otherwise indicated.


text:
    Timothy HAMPTON, Appellant, v. Stephanie Ann HAMPTON, Defendant, and Jimmy Hardwick and Barbara Sue Hardwick, Respondents.
    No. WD 56614.
    Missouri Court of Appeals, Western District.
    May 16, 2000.

      J.D. Gorham, Richmond, for appellant.
    Stanley M. Thompson, Richmond, for respondent.
    Before BRECKENRIDGE, C.J., SPINDEN and SMART, JJ.
   PATRICIA BRECKENRIDGE, Chief Judge.

Timothy Hampton appeals from the trial court’s judgment modifying his decree of dissolution to award grandparent visitation. Mr. Hampton claims that the trial court erred in awarding grandparent visitation to his child’s maternal grandparents and their spouses because the statute authorizing grandparent visitation does not include step-grandparents and because the trial court’s grant of visitation to the grandparents and step-grandparents on alternate weekends violated his constitutionally-protected substantive due process rights. We reverse the trial court’s judgment and remand the ease to the trial court so that it can modify its order concerning grandparent visitation.

FACTUAL AND PROCEDURAL BACKGROUND

On April 7, 1998, the Circuit Court of Ray County entered a judgment dissolving the marriage of Mr. Hampton (Father) and Stephanie Ann Hampton (Mother). One child, Haley Rosanne Hampton, was born of the marriage on December 1,1994. The trial court found that it was in the child’s best interests for the parents to share joint legal custody of the child, and for Father to be awarded primary physical custody of the child, subject to Mother’s right to reasonable visitation. Specifically, Mother was awarded visitation on alternate weekends, alternate major holidays and two two-week periods in the summer.

Two months later, Father filed a motion to modify the judgment of dissolution in which he requested that Mother’s visitation of the child be supervised, and he asked the trial court to terminate joint legal custody and to modify physical custody. One of the changes in circumstances Father fisted in his motion to modify was Mother’s impending incarceration.

Mother’s parents and them respective spouses, Jimmy and Barbara Hardwick, Mother’s father and stepmother, and Pamela and John Thacker, Mother’s mother and stepfather, filed a motion to intervene in the modification proceeding. They requested leave to intervene so they could pursue visitation rights. The trial court sustained the Hardwicks’ and the Thack-ers’ motion to intervene. The Hardwicks and the Thackers then filed an answer to Father’s motion and a petition to intervene and to request visitation rights.

The trial court called the case for hearing on October 22, 1998. Mother did not appear, and the trial court declared her to be in default. Father, the Hardwicks and the Thackers appeared. Father filed a motion asking the trial court to dismiss the Hardwicks’ and the Thackers’ petition on the ground that § 452.402.1(1), RSMo Cum.Supp.1998, the statute authorizing grandparent visitation in cases of parental divorce, was unconstitutional. The trial court heard evidence on all pending motions.

At the end of the hearing, the trial court issued a judgment denying Father’s motion to dismiss and modifying the prior dissolution decree. The trial court awarded sole legal custody of Haley to Father, awarded the Hardwicks and the Thackers visitation with Haley every other weekend from ■ 6 p.m. on Friday until 6 p.m. on Sunday while Mother was incarcerated, and modified Mother’s visitation of Haley after Mother’s release from incarceration. The trial court ordered that, after Mother is released from incarceration, her original visitation will be reinstated but the visitation must be supervised by the Hardwicks or the Thackers.

Father appeals. He challenges the trial court’s award of visitation to Barbara Hardwick and John Thacker, the step-grandparents. He further contends that the amount of visitation awarded to the Hardwicks and the Thackers violated his substantive due process rights. He does not challenge the .trial court’s designation of Barbara Hardwick and John Thacker as persons suitable to supervise visitation between Mother and Haley.

STANDARD OF REVIEW

In grandparent visitation cases, as in most court-tried civil cases, an appellate court is guided by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Whoberry v. Whoberry, 977 S.W.2d 946, 948 (Mo.App.1998).

STEP-GRANDPARENTS ARE NOT ENTITLED TO VISITATION

In Father’s first point, he claims that the trial court erred in sustaining the motion for leave to intervene filed by the maternal step-grandfather and maternal step-grandmother. He argues that § 452.402 does not expressly or impliedly authorize an award of visitation to step-grandparents. This court agrees.

Section 452.402 permits an award of visitation to grandparents. It states:

1. The court may grant reasonable visitation rights to the grandparents of the child and issue any necessary orders to enforce the decree. The court may grant grandparent visitation when:
(1) The parents of the child have filed for a dissolution of their marriage. A grandparent shall have the right to intervene in any dissolution action solely on the issue of visitation rights. Grandparents shall also have the right to file a motion to modify the original decree of dissolution to seek visitation rights when such rights have been denied to them;
(2) One parent of the child is deceased and the surviving parent denies reasonable visitation rights;
(3) A grandparent is unreasonably denied visitation with the child for a period exceeding ninety days; or
(4) The child is adopted by a stepparent, another grandparent or other blood relative.
2. The court shall determine if the visitation by the grandparent would be in the child’s best interest or if it would endanger the child’s physical health or impair the child’s emotional development. Visitation may only be ordered when the court finds such visitation to be in the best interests of the child. The court may order reasonable conditions or restrictions on grandparent visitation.

Section 452.402.

Construction of this statute is an issue of law, so our review is de novo. Dawson v. Denney-Parker, 967 S.W.2d 90, 92 (Mo.App.1998). “The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning.” Wheeler v. Board of Police Comm’rs of Kansas City, 918 S.W.2d 800, 803 (Mo.App.1996). It is not the place of this court to surmise what the legislature intended to say or inadvertently failed to say. Cohen v. Missouri Bd. of Pharmacy, 967 S.W.2d 243, 248 (Mo.App.1998). A statute is clear and unambiguous if the language is plain and clear to a person of ordinary intelligence. Wheeler, 918 S.W.2d at 803. Where there is no ambiguity, there is no need to look to any other rule of construction. Bosworth v. Sewell, 918 S.W.2d 773, 777 (Mo. banc 1996).

The one word of the statute at issue is “grandparent.” The word “grandparent” is not defined in the statute, so we look to a dictionary definition to determine its plain and ordinary meaning. Badgley v. Missouri Dept. of Corrections, 977 S.W.2d 272, 275 (Mo.App.1998). WeesteR’s New Collegiate Dictionaby 500 (5 th ed.1977) defines a “grandparent” as “a parent of one’s father or mother.” Giving the term “grandparent” its plain and ordinary meaning, the intention of the legislature is clear and unambiguous, so no further construction of the statute is necessary. By use of the word “grandparent,” the legislature intended to authorize visitation to the parent of a child’s father or mother. Thus, the trial court misapplied the law when it awarded grandparent visitation rights to the step-grandparents. Therefore, the award of visitation to the step-grandparents is reversed.

CONSTITUTIONALITY OF TRIAL COURT’S VISITATION ORDER

The trial court ordered Father to permit the grandparents and their spouses to visit Haley every other weekend from 6 p.m. on Friday to 6 p.m. on Sunday. Father argues:

[T]his amount of visitation is excessive for a grandparent and ... the court erred in granting visitation to this extent on grounds of abuse of discretion and of amounting to an unconstitutional application of the grandparent visitation statute infringing upon his constitutional liberty and privacy rights to exercise personal choice and freedom in rearing his daughter, as guaranteed by the due process clauses of the’ United States Constitution, Fourteenth Amendment, and the Missouri Constitution, Article I, Section 10.

As the Supreme Court of Missouri recognized in Herndon v. Tuhey, 857 S.W.2d 203, 207 (Mo. banc 1993), grandparent visitation granted pursuant to § 452.402.1 impinges on a parent’s rights, protected by the Fourteenth Amendment, to make decisions without undue governmental interference in the rearing of a child. The Supreme Court added,- however, that a parent’s right is not absolute:

Even given the fact that the parents have a constitutional right to make decisions affecting the family, the magnitude of the infringement by the state is a significant consideration in determining whether a statute will be struck down as unconstitutional....
Even a casual comparison of the visitation rights contemplated for grandparents under section 452.402 (and particularly with regard to the limited rights we approve hereinafter) with the magnitude of the infringement in [cases declaring infringement on the right to be unconstitutional] demonstrates that no constitutional violation is present in subsections 452.402.1(3) or 452.402.2.

Id. at 208-09. The “limited rights” that the Supreme Court approved in Herndon were “occasional, temporary visitation.” Id. at 209. The Court reasoned:

Missouri’s statute is reasonable both because it contemplates only a minimal intrusion on the family relationship and because it is narrowly tailored to adequately protect the interests of parents and children. The statute provides that a court may grant visitation to a grandparent only if the grandparent has been unreasonably denied visitation for more than ninety days. A court may grant visitation only if it will be in the best interest of the child. If visitation would endanger the child physically, mentally, or emotionally then visitation must be denied. Furthermore, the ninety-day period of unreasonable denial of visitation that must elapse before a court may enter an order under section 452.402 indicates the legislature contemplated an allowance of minimal visitation subject to reasonable restrictions and conditions as a court might find appropriate. The judicial oversight section 452.402 provides adequately ensures the best interest of a child is being served....
Because the legislature set ninety days as a precondition, this is an indication to the courts that visitation should not be excessive, should not be on a par with parental visitation in custody matters, and should not necessarily be commensurate with the contact between the grandparents and grandchild prior to the deterioration of relations between the parties. Our interpretation is based in part on the fact that if the statute allowed a great amount of visitation we would be more likely to find an undue burden on the family and hold that these subsections are unconstitutional.

Id. at .210-11 (emphasis added). After finding that § 452.402.1(3) required only minimal visitation, the Supreme Court remanded the case to the trial court for it to reconsider its order of grandparent visitation for nine hours on the first and third Saturday of each month to be followed, after three months, with a schedule of nine hours’ visitation on the first Saturday of each month and an overnight stay on the third weekend of each month.

The “occasional, temporary visitation” limit approved by the Herndon court resulted from its application of the principles of statutory construction that a statute is to be “interpreted to be consistent with the constitution of the United States if it is at all possible” and that “any doubts concerning the constitutionality of a statute will be resolved in favor of validity.” Id. at 207. The Herndon court inferred from the 90-day provision of § 452.402.1(3) that “the legislature contemplated an allowance of minimal visitation.” Id. at 210.

Although the Herndon court was construing the constitutionality of § 452.402.1(3) and not the remaining subsections of § 452.402.1, and although the 90-day provision appears in only § 452.402.1(3), it is clear that the occasional, minimal restriction recognized by the Herndon court is necessary for all of § 452.402 to be constitutional. This is evident from the Herndon court’s recognition of the fundamental right at stake:

[T]he United States Supreme Court has found certain rights related to marriage, family relationships, child rearing and education of children to be an area protected by the United States Constitution. In Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977) (quoting Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974)), the Court stated: “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”

Id. at 207. Although the court considered only the constitutionality of § 452.402.1(3) because that was the issue before it, it justified the state’s interfering with a parent’s fundamental right to make unfettered decisions concerning his or her child’s upbringing — regardless of the nature of the interference — on the ground that minimal interference with a fundamental right was acceptable.

The Southern District of this court considered a challenge to the scope of grandparent visitation ordered pursuant to subparagraph (1) of § 452.402.1, the subparagraph at issue in this case which authorizes grandparents who have been denied visitation to seek visitation rights when the parents of the child have filed for dissolution. In Whoberry, the Southern District found that the “minimal visitation” requirement of Herndon did not apply in its case, because there was not an intact nuclear family like Herndon, and subsection (1) of § 452.402.1, unlike subsection (3), was “devoid of language that indicates any legislative intent to limit the quantity of grandparent visitation.” 977 S.W.2d at 949-50. It is significant that Whoberry did not address whether the visitation ordered under sub-paragraph (1) was constitutional. Unlike Whoberry, the constitutionality of the visitation order under subparagraph (1) is at issue, here, and we have already found that the constitutional constraints recognized in Herndon govern all subsections of § 452.402.1.

In distinguishing its case from Herndon, the court in Whoberry focused on the factual difference between the nature of the family impacted by the order of grandparent visitation. In Whoberry, the marriage of the parents had been dissolved and the noncustodial father, who was in the military, was unable to secure regular visitation or contact between his mother, the intervenor, and his child. Herndon involved an intact nuclear family where the parents were estranged from the grandparents. We recognize, of course, that what may constitute a minimal intrusion will vary according to circumstances and that the dissolution of the parents’ marriage may be a significant factor that makes the state’s intrusion less significant. Nevertheless, a parent does not lose the parent’s fundamental right to direct the upbringing of his or children upon the dissolution of the parent’s marriage. We concur with the conclusion of this court’s Eastern District, in Komosa v. Komosa, 939 S.W.2d 479, 482 (Mo.App.1997), that application of § 452.402 “in such a manner as to constitute more than a minimal intrusion on the family relationship [is] unconstitutional and prohibited.” The constitutional analysis remains the same without regard for whether a parent’s marriage is dissolved. Id. at 482-488.

As the United States Supreme Court has declared:

Choices about marriage, family life, and the upbringing of children are among associational rights this [c]ourt has ranked as “of basic importance in our society,” Boddie [v. Connecticut], 401 U.S. [371,] 376, 91 S.Ct. 780, 28 L.Ed.2d 113 [ (1971) ], rights sheltered by the Fourteenth Amendment against the [s]tate’s unwarranted usurpation, disregard, or disrespect. See, for example, Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), and Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (marriage); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (procreation); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (raising children).

M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). “Our law affords constitutional protection to personal decisions relating to ... child rearing[.] These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment [to the United States Constitution].” Planned Parenthood v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (O’Connor, Kennedy, and Souter, JJ.). These principles apply whether a parent is divorced or married.

The teaching of Herndon is that, when a constitutionally protected fundamental right of privacy is at stake, the government can impede exercise of that right only if the impediment is minimal. This must be the case whether the intrusion results from a parent’s unreasonable refusal to permit a grandparent to visit a child for more than 90 days under § 452.402.1(3), from the request for visitation when the parents’ marriage is dissolved under § 452.402.1(1), or from the refusal of a parent whose spouse has died to permit reasonable grandparent visitation under § 452.402.1(2).

The visitation ordered by the circuit court in this case exceeded a minimal intrusion. While the trial court could consider the circumstance of Mother’s incarceration, requiring visitation every other weekend from 6 p.m. on Friday to 6 p.m. on Sunday is not minimal. We, therefore, reverse the trial court’s judgment as an unconstitutional application of § 452.402. We remand with instruction that the trial court reconsider its order and restrict grandparent visitation to the level mandated by the Herndon court. We further instruct the trial court that its award of grandparent visitation may not include the step-grandparents.

All concur.

      . All statutory references are to the 1998 Cumulative Supplement to the Revised Statutes of Missouri, unless otherwise indicated.

      . The trial court had also made provision for Thanksgiving and Christmas visits, summer visitation of one week, and ordered the parents to keep the grandparents informed of all of the child’s school, social and athletic activities that the grandparents would reasonably be expected to attend.

      . The Eastern District in Komosa, 939 S.W.2d at 482-83, reversed the trial court’s visitation award and remanded with instructions that the trial court grant visitation under the minimal intrusion guidelines of Herndon, which should not be more frequently than once every ninety days. Since Herndon did not quantify the amount of grandparent visitation that would constitute a minimal intrusion on the family relationship, the Eastern District appears to be determining that visitation once every ninety days in the area of the child’s residence was a minimal intrusion considering the facts of that case. See Ray v. Hannon, 14 S.W.3d 270, 271 (Mo.App.2000).


author: PER CURIAM.

text:
    Tyrone FORD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76441.
    Missouri Court of Appeals, Eastern District, Division One.
    May 16, 2000.
    S. Paige Canfield, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Jefferson City, for respondent.
    Before: GARY M. GAERTNER, P.J., PAUL J. SIMON, J., and JAMES R. DOWD, J.
   ORDER

PER CURIAM.

This is an appeal from a judgment denying a Rule 29.15 motion without an eviden-tiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude the motion court’s judgment is based on findings of fact and conclusions of law that are not clearly erroneous. An opinion reciting the detailed facts and restating the principles of law would have no precedential value.

The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Keith AKINS, Appellant, v. DUNHAMS CLEANING SERVICE, Respondent.
    No. ED 76887.
    Missouri Court of Appeals, Eastern District, Division One.
    May 16, 2000.
    Matthew J. Padberg, Michael P. Corri-gan, The Padberg Law Firm, St. Louis, for appellant.
    Dennis R. Lassa, Field, Gentry & Benjamin, P.C., St. Louis, for respondent.
    Before GARY M. GAERTNER, P.J. and PAUL J. SIMON and JAMES R. DOWD, JJ.
   ORDER

PER CURIAM.

Keith Akins appeals an order of the Labor and Industrial Relations Commission dismissing his application for review of the dismissal of his claim for workers’ compensation benefits.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. As an extended opinion would have no precedential value, we affirm the award pursuant to Rule 84.16(b).


text:
    Beatrice GAMM, Plaintiff-Appellant, v. Steven Pike DOYLE, Individually and as Trustees of the Thomas W. Doyle Revocable Living Trust, Defendant-Respondent.
    No. ED 77349.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 16, 2000.
    Paul R. Williams, Bowling Green, for appellant.
    John M. Mellroy Jr., Bowling Green, for respondent.
    Before RICHARD B. TEITELMAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Beatrice Gamm (“Gamm”) appeals an order of the Pike County Circuit Court granting defendant Stephen Pike Doyle’s (“trustee”) motion to dismiss her petition for declaratory judgment. Gamm had sought a declaratory judgment to determine her tax obligations concerning property received from Thomas W. Doyle (“decedent”). Gamm argues the trial court erred in dismissing her petition as a justi-ciable controversy, a legally protected interest, and a question ripe for judicial decision all existed. She also argues she is not responsible for the taxes connected with the property as the decedent’s trust document explicitly states that taxes shall be paid by the trustee from trust funds.

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:
    Cornell HARVEY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76843.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 16, 2000.
    Jennifer S. Walsh, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
    Before MARY RHODES RUSSELL, C.J., LAWRENCE G. CRAHAN, J., and CHARLES BLACKMAR, Sr.J.
   ORDER

PER CURIAM.

Cornell Harvey (“Movant”) appeals the judgment denying his Rule 29.15 motion to vacate, set aside or correct his judgment and sentence -without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court’s determination is not clearly erroneous. Rule 29.15(k). An extended opinion would be of no prece-dential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).