author: JOSEPH M. ELLIS, Judge.

text:
    Jerry WHITNEY, et al., Respondents, v. ALLTEL COMMUNICATIONS, INC., Appellant.
    No. WD 64196.
    Missouri Court of Appeals, Western District.
    July 5, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 30, 2005.
    Application for Transfer Denied Nov. 1,2005.

      Brant M. Laue, Chadler E. Colgan, Co-Counsel, Kansas City, MO, James K. Low-ry, Co-Counsel, St. Louis, MO, Matthew D. Turner, Co-Counsel, Jefferson City, MO, for appellants.
    Matthew A. Clement, Timothy W. Van Ronzelen, Co-Counsel, Thomas G. Pir-mantgen, Co-Counsel, Edward D. Robertson, Jr., Co-Counsel, Jefferson City, MO, Charles F. Speer, Co-Counsel, Overland Park, KS, for respondents.
    Before ROBERT G. ULRICH, Presiding Judge, JAMES M. SMART, Jr., Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

Alltel Communications, Inc. appeals from an order entered by the Circuit Court of Cole County denying its motion to compel arbitration and to dismiss or stay the proceedings in a civil action brought against it by Jerry L. Whitney. For the following reasons, we affirm the trial court’s decision.

Whitney is a wireless telephone customer of Alltel and has been since 1995. On November 27, 2002, Whitney filed a petition in the Circuit Court of Cole County asserting that Alltel had violated Missouri’s Merchandising Practices Act, §§ 407.010 et seq., by improperly including a line item charge of $0.88 per month for a “Regulatory Cost Recovery Fee” on its billing statements to him in a manner that deceptively implied that it was a gov-ernmentally-mandated tax or charge. Whitney also asserted a claim of unjust enrichment based upon the same alleged conduct and sought certification to pursue the matter as a class action.

Subsequently, Alltel filed a motion to compel arbitration and to dismiss or stay the proceedings, asserting that the provisions of Whitney’s contract with Alltel mandated that any such claims be addressed through arbitration. The arbitration provision relied upon by Alltel was contained within some “Terms and Conditions” mailed to Whitney with his bill from Alltel on August 4, 2000. Those Terms and Conditions altered the terms of the contract and stated that a customer’s use of Alltel services subsequent to receipt of the new Terms and Conditions would be deemed to constitute acceptance of those terms. Specifically, the arbitration provision stated:

Any dispute arising out of this Agreement or relating to the Services and Equipment must be settled by arbitration by the American Arbitration Association. Each party will bear the cost of preparing and prosecuting its case. We will reimburse you for any filing or hearing fees to the extent they exceed what your court costs would have been if your claim had been resolved in a state court having jurisdiction. The arbitrator has no power or authority to alter or modify these Terms and Conditions, including the foregoing Limitations of Liability section.[] All claims must be arbitrated individually, and there will be no consolidation or class treatment of any claims. This provision is subject to the United States Arbitration Act.

After the matter was briefed and argued by the parties, the trial court entered its order denying Alltel’s motion to compel arbitration on May 14, 2004. In so doing, the trial court found that Whitney’s claim under the Merchandising Practices Act and his unjust enrichment claim did not fall within the scope of the arbitration clause. The court stated that the actions challenged by Whitney related to Alltel’s billing practices and did not involve a dispute “arising out of’ the agreement and were not “related to” the services or equipment provided by Alltel. The court further concluded that, taken as a whole, “the limitations contained within the arbitration provision make it unconscionable, and thus unenforceable, even if the claims were encompassed by the provision.” Alltel brings five points on appeal from that order.

Prior to addressing Alltel’s claims, we must examine Whitney’s challenge to this Court’s jurisdiction over this appeal. “The right to appeal is purely statutory, and where a statute does not give a right to appeal, no right exists.” Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 427 (Mo.banc 2008).

In its jurisdictional statement, Alltel asserts that this court has jurisdiction over this matter under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. Specifically, Alltel relies upon 9 U.S.C. § 16(a)(1)(A) and § 16(a)(1)(B). Those statutory provisions allow for an appeal to be taken from an order “(A) refusing a stay of any action under section 8 of this title” or “(B) denying a petition under section 4 of this title to order arbitration to proceed”. Section 3 of the FAA deals with the enforcement of arbitration agreements in pending lawsuits and requires that the “courts of the United States” grant a party’s request for a stay of litigation pending completion of arbitration where the issue involved is subject to an arbitration provision. 9 U.S.C. § 3. Section 4 of the FAA requires “any United States district court” to entertain a petition for the enforcement of an arbitration agreement where a party has refused to arbitrate. 9 U.S.C. § ⅛.

Whitney contends that the provisions of the FAA allowing for appeals from the denial of a petition to order arbitration are not applicable to grant jurisdiction to this Court because the express language of Sections 3 and 4, from which Section 16 allows an appeal, only applies to federal courts. Whitney further claims that an appeal from the trial court’s order is not proper under Missouri law because the order does not constitute a final judgment.

On the facts of this case, we need not determine whether Sections 3 and 4 are applicable to a circuit court in this State, an issue which has not yet been addressed by either the Missouri Supreme Court or the United States Supreme Court. See Dunn Indus. Group, 112 S.W.3d at 433; Volt Info. Scis., Inc. v. Board of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 477, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). An appeal from the denial of a motion to compel arbitration is specifically authorized under Missouri law. “Section 435.440.1, a part of the Missouri Uniform Arbitration Act, expressly grants the right to appeal orders denying an application to compel arbitration or granting an order to stay arbitration.” Dunn Indus. Group, 112 S.W.3d at 427. This “‘special statute’ takes precedence over the general requirement in Rule 74.01 that a judgment is not final unless it disposes of all parties and issues in the case.” Dunn v. Security Fin. Advisors, Inc., 151 S.W.3d 140, 142 (Mo.App. W.D.2004).

State procedural laws may be followed by a state court applying substantive federal law so long as the procedure does not defeat any of the rights contained in the federal act under consideration. Greenpoint Credit, L.L.C. v. Reynolds, 151 S.W.3d 868, 873 n. 3 (Mo.App. S.D.2004); see also Greenwood v. Sherfield, 895 S.W.2d 169, 172 (Mo.App. S.D.1995). Thus, where a Missouri court is addressing an arbitration provision falling within the FAA, the Missouri court must apply the substantive law of the FAA contained in 9 U.S.C. § 2, but may apply state procedural rules so long as they do not defeat any of the substantive rights granted by Congress in the act. Reynolds, 151 S.W.3d at 873 n. 3. Section 435.440.1 clearly does not serve to defeat any of the rights granted by Congress under the FAA and, in fact, is wholly consistent with the provisions of the FAA allowing for an appeal from the denial of a motion to compel arbitration.

While Alltel failed to assert § 435.440.1 as a basis for this Court’s jurisdiction in the jurisdictional statement contained in its brief, even if the grounds asserted by Alltel were invalid, this Court is not required to dismiss an action for failure to properly assert the jurisdictional basis for an appeal in a jurisdictional statement where it is apparent from the briefs and the record that an appeal is proper under Missouri law. See Estate of Athon v. Conseco Fin. Servicing Corp., 88 S.W.3d 26, 29 (Mo.App. W.D.2002). Accordingly, Section 435.440.1 is controlling, and this Court has jurisdiction to review the trial court’s denial of Alltel’s motion to compel arbitration under Missouri statute. Dunn Indus. Group, 112 S.W.3d at 427.

We now turn to Alltel’s points on appeal. All of Alltel’s points challenge the trial court’s denial of its motion to compel arbitration.

In its first point, Alltel asserts that the trial court erred in refusing to compel arbitration because it failed to give sufficient deference to the strong policy in favor of arbitration set forth in 9 U.S.C. § 2 of the FAA. Alltel contends that the failure of the trial court to specifically refer to the federal policy favoring arbitration “in and of itself supports reversal.”

Alltel does not cite any legal authority in support of this proposition, and we are aware of none. The trial court’s failure to include language in its decision recognizing the general federal policy in favor of arbitration simply does not support, “in and of itself,” reversal of the trial court’s decision. “Standing alone, a public policy favoring arbitration is not enough to extend the application of an arbitration clause far beyond its intended scope.” Greenwood, 895 S.W.2d at 174. Moreover, Alltel fads to identify anything in the record, aside from the result reached by the trial court, in support of its claim that the trial court disregarded this general policy in denying its motion to compel arbitration. In short, in this point, Alltel has failed to establish any substantive basis upon which we could find error with the trial court’s decision. Point denied.

In its second point, Alltel contends that the trial court erroneously determined that Whitney’s claim under the Merchandising Practices Act related to allegedly deceptive billing practices and his claim for unjust enrichment fell outside the scope of the arbitration provision. Alltel argues that the language contained in the provision clearly encompassed the claims asserted by Whitney in his petition in that they “arose out of’ the terms and conditions of the contract or were “related to” the service provided.

While it seems clear that Whitney’s claims do not “relate to” the service provided, it is less apparent whether the claims “arose out of’ of the terms and conditions of the contract. There are strong arguments suggesting the claims are independent of the contract terms and do not require reference to the underlying contract so as not to have “arose out of’ the contract, but there are also not inconsequential contentions that the claims “arose out of’ of the contract provisions relating to billing. Ultimately, however, because we affirm the trial court’s finding of unconscionability addressed in Alltel’s Point III, IV and V, we need not decide whether Whitney’s claims “arose out of’ the contract, but rather will assume, ar-guendo, for purposes of this appeal, that they did.

Alltel’s third, fourth, and fifth points all challenge the trial court’s determination that the arbitration provisions contained in the contract were unconscionable. In its third point, Alltel claims the trial court erred in striking down the arbitration provision on the grounds that it was procedurally unconscionable. Alltel argues that contracts of adhesion are allowed under Missouri law and that restrictions on fine print are improper under the FAA. Alltel presumes that the trial court’s ruling of unconscionability was based solely upon those facts and asserts that a contract cannot be stricken for unconscion-ability merely on procedural matters.

Under 9 U.S.C. § 2, written agreements to arbitrate are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (emphasis added). Accordingly, “generally applicable state law contract defenses, such as fraud, duress and unconscionability, may be used to invalidate arbitration agreements without contravening the FAA.” Swain v. Auto Servs., Inc., 128 S.W.2d 103, 107 (Mo.App. E.D.2003). In this instance, the trial court found that, even if the disagreement between the parties fell within the scope of the arbitration agreement, the arbitration provision was unconscionable and, therefore, should not be enforced.

“It is suggested that there are procedural and substantive aspects of un-conscionability, the former relating to the formalities of the making of the contract and the latter to the specific contract terms.” Bracey v. Monsanto Co., 823 S.W.2d 946, 950 (Mo.banc 1992). “[Procedural unconscionability in general is involved with the contract formation process, and focuses on high pressure exerted on the parties, fine print of the contract, misrepresentation, or unequal bargaining position.” Funding Sys. Leasing Corp. v. King Louie Int’l, Inc., 597 S.W.2d 624, 634 (Mo.App. W.D.1979). “By substantive un-conscionability is meant an undue harshness in the contract terms themselves.” Id. “Generally there must be both procedural and also substantive unconscionability before a contract or a clause can be voided.” Id. Furthermore, “it has been suggested ... that there be a balancing between the substantive and procedural aspects, and that if there exists gross procedural unconscionability then not much be needed by way of substantive unconsciona-bility, and that the same ‘sliding scale’ be applied if there be great substantive un-conscionability but little procedural uncon-scionability.” Id.

In concluding that the arbitration provision was unconscionable, the trial court made the following findings:

The Court further finds that the arbitration provision Alltel is seeking to enforce is unconscionable and thus unenforceable. There are both procedural and substantive aspects to the uncon-scionability. The “Terms and Conditions” containing the arbitration defendant is seeking to enforce were sent to plaintiff in the mail on a take it or leave it fashion. Alltel was in a much superior bargaining position, and there was no negotiation between the parties. Further, the arbitration provision at issue was in fine print on the back side of the sheet sent to plaintiff and was insufficient to call its customers’ attention to their waiver of the substantial rights guaranteed under the statutes and constitution that the arbitration provisions contemplates [sic].
There is also substantive unconsciona-bility present. First, defendant’s arbi-tratation[arbitration] provision purports to prohibit consolidation or class treatment of any claims. Here, plaintiff filed a putative class action challenging a charge of 88 cents per month. By itself, such a claim would not be economically feasible to prosecute. However, when all of the customers are added together, large sums of money are at stake. Prohibiting class treatment of these claims would leave consumers with relatively small claims without a practical remedy, and without a procedure (class actions) expressly provided for under Chapter 407 and the Missouri Rules of Civil Procedure.
Further, defendant’s arbitration provision states that “Each party will bear the cost of preparing and prosecuting its case.” This effectively takes away rights and remedies consumers have under Missouri law. First, the prevailing party cannot be awarded costs as they would under Missouri law if this arbitration provision is enforced. Further, it takes away the remedy provided under Chapter 407, RSMo that the Court may award the prevailing party attorneys’ fees. See Section 407.025, RSMo. Finally, the Limitation of Liability section of the Terms and Conditions referenced in the arbitration provision purports to prevent Alltel from being liable for any “incidental or consequential damages ... punitive or exemplary damages, or attorneys’ fees.” These are damages expressly available to plaintiffs under Missouri statutes and common law. These limitations further make it infeasible for consumers to bring relatively small individual claims.
Taken as a whole, the Court finds the arbitration provision is unconscionable. The Court is persuaded by the line of cases holding “that an arbitration clause that defeats the prospect of class-action treatment is a setting where the practical effect affords the defendant immunity is unconscionable.” See Leonard v. Terminix International Company, L.P., 854 So.2d 529, 536 (Ala.2003)(citing numerous cases).

The findings of fact and conclusions of law contained in the trial court’s order clearly reflect that the trial court did not base its conclusion that the arbitration provision was unconscionable solely upon its findings related to the adhesive nature of the contract and/or the fact that the arbitration clause was in fine print. Rather, the trial court clearly made its finding of unconscionability based upon the totality of the circumstances, weighing evidence of both procedural and substantive uncon-scionability, and did not rely solely upon its findings related to procedural uncon-scionability in voiding the arbitration provision. Alltel’s third point is denied.

In Point IV, Alltel asserts that the trial court erred in finding that the arbitration provision related to class actions was unconscionable. Alltel claims that the provision is not objectively unreasonable and should be enforced according to the terms of the contract. Finally, in its fifth point, Alltel contends that the trial court improperly found that the limitations on liability set forth in the contract were substantively unconscionable. Alltel argues that the trial court could not properly make that determination because such provisions were severable from the arbitration provision and should be reviewed by the arbitrator.

Because the trial court clearly made its determination that the arbitration provisions in the contract were unconscionable based upon all of the factors referenced in Alltel’s third, fourth, and fifth point, we must consider whether the trial court’s conclusion is proper in light of all of those factors considered together, rather than addressing each factor separately to determine whether it supported the conclusion in and of itself.

As noted supra, “[s]tates may regulate contracts, including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause ‘upon such grounds as exist at law or in equity for the revocation of any contract.’ ” Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 281, 115 S.Ct. 834, 843, 130 L.Ed.2d 753 (1995) (quoting 9 U.S.C. § 2) (emphasis in original). Accordingly, an arbitration agreement may be invalidated on the basis of such contract defenses as fraud, duress, or unconsciona-bility. Swain, 128 S.W.3d at 107. In this manner, 9 U.S.C. § 2 “gives States a method for protecting consumers against unfair pressure to agree to a contract with an unwanted arbitration provision.” Dobson, 513 U.S. at 281, 115 S.Ct. at 843.

The trial court found that the “Terms and Conditions” containing the arbitration provision were sent to Whitney in the mail on a take it or leave it basis, that Alltel was in a much superior bargaining position, and that there was no negotiation between the parties. The court further noted that the provision was in fine print on the back side of a sheet sent to Whitney with his regular bill. Alltel does not challenge these factual findings, and the record clearly establishes that this was a contract of adhesion and that aspects of procedural unconscionability were present.

Having determined that procedural unconscionability was established, we must next ascertain whether the record sufficiently established that the arbitration provisions were substantively unconscionable. “Adhesion contacts usually involve the unequal bargaining power of a large corporation versus an individual and are often presented in pre-printed form contracts.” Swain, 128 S.W.3d at 107. “While involving aspects of procedural unconscion-ability, such contracts “are not ‘inherently sinister and automatically unenforceable.’ ” Id. (quoting Hartland Computer Leasing Corp. v. Insurance Man, Inc., 770 S.W.2d 525, 527 (Mo.App. E.D.1989)). “Because the bulk of contracts signed in this country are form contracts — ‘a natural concomitant of our mass production-mass consumer society’ — any rule automatically invalidating adhesion contracts would be ‘completely unworkable.’ ” Id. (quoting Hartland Computer Leasing Corp., 770 S.W.2d at 527). “Rather, as with all contracts, the courts seek to enforce the reasonable expectations of the parties garnered not only from the words of a standardized form imposed by its proponent, but from the totality of the circumstances surrounding the transaction.” Hartland Computer Leasing Corp., 770 S.W.2d at 527. “ ‘Because standardized contracts address the mass of users, the test for ‘reasonable expectations’ is objective, addressed to the average member of the public who accepts such a contract, not the subjective expectations of an individual adherent.’ ” Swain, 128 S.W.3d at 107 (quoting Hartland Computer Leasing Corp., 770 S.W.2d at 527-28). “Only such provisions of the standardized form which fail to comport with such reasonable expectations and which are unexpected and unconscionably unfair are held to be unenforceable.” Hartland Computer Leasing Corp., 770 S.W.2d at 527; see also Smith v. Kriska, 113 S.W.3d 293, 298 (Mo.App. E.D.2003).

Standing alone, “[a]n agreement choosing arbitration over litigation, even between parties of unequal bargaining power, is not unconscionably unfair,” Swain, 128 S.W.3d at 108, and “[a] provision so requiring is not unenforceable on the basis that it is a contract of adhesion.” Greenpoint Credit, L.L.C. v. Reynolds, 151 S.W.3d 868, 875 (Mo.App. S.D.2004). Provided that an average, reasonable person would reasonably expect that the dispute at issue, arising from the agreement, might be resolved through arbitration rather than litigation, the arbitration provision is not unreasonably unfair. See Swain, 128 S.W.3d at 107-08; Greenpoint Credit, L.L.C., 151 S.W.3d at 875.

Whitney argues that the arbitration provisions in the contract effectively allow Alltel to circumvent the protections afforded to consumers by the Merchandising Practices Act and to deprive Alltel’s customers of those protections. He contends that the arbitration provisions so limit the rights and remedies available to consumers under that act as to be unconscionable. Whitney further asserts that the combination of the provision requiring arbitration with the provision prohibiting the consolidation of claims or class actions, which are expressly allowed by the Merchandising Practices Act; the provision precluding incidental, consequential, punitive, or exemplary damages as well as attorneys’ fees; and the provision requiring the consumer to bear the costs of the arbitration, effectively grants Alltel immunity from claims related to improper billing where hundreds of dollars are not involved.

Generally, “statutory claims can be appropriately resolved through arbitration,” and the United States Supreme Court has “enforced agreements to arbitrate that involve such claims.” Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 89, 121 S.Ct. 513, 521, 148 L.Ed.2d 373 (2000). “[E]ven claims arising under a statute designed to further important social policies may be arbitrated because so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute serves its functions.” Id. at 90, 121 S.Ct. 513. (internal quotation omitted). However, in some instances, where the arbitration provision is so prohibitive as to effectively deprive a party of his or her statutory rights, the arbitration agreement may be invalidated. See Leonard v. Terminix Int’l Co., 854 So.2d 529 (Ala.2002); Powertel, Inc. v. Bexley, 743 So.2d 570 (Fla.Dist.Ct.App. 1999); See also Randolph, 531 U.S. at 90-92, 121 S.Ct. at 522-23 (acknowledging that an arbitration provision could be invalidated based upon the fact that the issues were unsuitable for arbitration because the costs of arbitration would be prohibitively expensive, but finding that the plaintiff failed to make a showing of prohibitive expense).

Both Leonard v. Terminix International Co., 854 So.2d 529 (Ala.2002), and Powertel, Inc. v. Bexley, 743 So.2d 570 (Fla.Dist.Ct.App.1999), are factually on point, and we find the reasoning of those cases persuasive on this issue. In Leonard, the Leonards had a termite protection plan with Terminix that provided that any controversy or claim between them arising out of or relating to the agreement would be settled by arbitration. 854 So.2d at 531. Subsequently, the Leonards filed a class action lawsuit against Terminix for failing to satisfy its statutory duty to make yearly termite inspections. Id. at 532. In affirming the trial court’s denial of Terminix’s motion to compel arbitration, the Court held:

The limitation upon recovery of ‘indirect, special, and consequential damages or loss of anticipated profits’ in the arbitration clause and elsewhere in the agreement and the preclusion of eligibility for class-action treatment by inserting a provision requiring arbitration deprive the Leonards of a meaningful remedy and lead us to conclude that Terminix has extracted unreasonably favorable and patently unfair terms in its contract of adhesion. Consequently, the arbitration clause is unconscionable and unenforceable.
This arbitration agreement is unconscionable because it is a contract of adhesion that restricts the Leonards to a forum where the expense of pursuing their claim far exceeds the amount in controversy. The arbitration agreement achieves this result by foreclosing the Leonards from an attempt to seek practical redress through a class action and restricting them to a disproportionately expensive individual arbitration.

Id. at 538-39. In reaching that conclusion, the Leonard court noted that “[sjeveral courts confronting this issue have been favorably disposed to the view that an arbitration clause that defeats the prospects of class-action treatment in a setting where the practical effect affords the defendant immunity is unconscionable.” Id. at 536.

In Powertel, the plaintiff brought a class action under Florida’s Unlawful and Deceptive Trade Practices Act alleging that Powertel, a cellular telephone service company, had wrongfully billed services. 743 So.2d at 572. After the plaintiffs had entered into the original service contract, Powertel had mailed out a pamphlet con-taming new contractual provisions, one of which included an arbitration clause. Id. The court found the arbitration provision was both proeedurally and substantively unconscionable. Id. at 574. The Powertel court found that it was proeedurally unconscionable because it was an adhesion contract unilaterally drafted by Powertel and mailed to customers with their telephone bill on a take it or leave it basis. Id. at 574-75. The court further noted that the finding of procedural unconsciona-bility was bolstered by the fact that the pamphlet containing the clause appeared at first glance to be little more than a restatement of the original terms and conditions of service and did not call attention to the changes being made. Id. at 575. The court also found that the arbitration provision was substantively unconscionable because (1) a provision limited Powertel’s liability to actual damages and precluded the possibility of punitive damages; (2) the arbitration provisions precluded class litigation, which was the only economically feasible remedy for the claims being asserted because the potential claims were too small to be litigated individually; and (3) the arbitration clause forced the plaintiffs to waive important statutory remedies like the possibility of declaratory or injunc-tive relief provided for in the Unlawful and Deceptive Trade Practices Act because such relief could not be granted by an arbitrator. Id. at 576-77. The court held that “[i]t is unreasonable to assume that the plaintiff and other cellular telephone customers would knowingly and voluntarily trade powerful remedies under a consumer protection statute for the limited right to recover actual damages under the arbitration agreement.” Id. at 577. The court noted that the arbitration provision effectively insulated Powertel from liability under state consumer laws and gave an unfair advantage to Powertel. Id.

While Alltel cites cases from several jurisdictions holding that arbitration clauses are not unconscionable simply because they bar class actions, in those cases, the court either did not consider the separate issue of whether the plaintiffs statutory rights could be adequately vindicated in the arbitral forum or found that the record established that the plaintiffs rights could be vindicated through arbitration under the contractual provisions and factual circumstances involved in that case.

The only “authority” cited by Alltel that involves the same contractual provisions and facts relatively similar to the case at bar is an unpublished order compelling arbitration issued by a federal district court in Florida, Hughes v. Alltel Corp., No. 03cv127 (N.D.Fla. Mar. 31, 2004). In that case, the Florida court spent all of three sentences rejecting the plaintiffs claim that the costs of arbitration were too prohibitive to vindicate his claim based on a finding that the evidence did not establish that the plaintiff would incur prohibitive costs. In so doing, the Florida court focused entirely on the fifing fees and hearing fees for arbitration and the fact that the contract provided for reimbursement of fifing and hearing fees to the extent they exceeded what court costs would have been if the claim had been resolved in state court; the court did not consider the issue of attorney’s fees and other costs. We simply do not find the abbreviated analysis contained in the Florida court’s unpublished order to be persuasive in addressing the case at bar, whereas the thorough analysis in Leonard and Powertel is compelling.

As was the case in both Leonard and Powertel, as well as in many of the cases on which they relied, the arbitration provision in the case at bar prohibited class actions and required the customer to bear the costs of arbitration, thereby limiting Whitney and other customers to a forum where the expense of pursuing most claims related to incorrect billing would far exceed the amount in controversy. In addition, the contract contained a provision which prohibited an award of any incidental, consequential, punitive, or exemplary damages as well as attorneys’ fees. Whitney’s claims related to an eighty-eight cent per month charge that Alltel had been placing on his and other customer’s bills since January 2002. Thus, at the time that the trial court ruled on Alltel’s motion to compel arbitration, Whitney had allegedly been improperly billed a total of $24.64. Even if the arbitrator were deemed to have the authority to award Whitney interest on this amount if the claim were found to be valid, the award could not possibly approach the amount that would have to be expended in arbitrating the action. Accordingly, the costs would be so prohibitively expensive as to preclude, for all practical purposes, an aggrieved party from seeking redress for a violation of the Merchandising Practices Act. Any of Alltel’s other customers wishing to challenge the eighty-eight cent charge would face the same economic hurdle. Yet because of the many customers affected, Alltel would be entitled to retain millions and millions of dollars from what were allegedly improper and deceptive charges. Moreover, since no single customer could undertake a case against Alltel, the company could continue its improper and deceptive charges ad infinitum since none of its customers would have a practical remedy to bring about a stop to the conduct.

An average person would not reasonably expect that a dispute like the one at issue would be required to be resolved through arbitration on an individual case by case basis. Such a requirement, if found to bar actions such as this, would effectively strip consumers of the protections afforded to them under the Merchandising Practices Act and unfairly allow companies like Alltel to insulate themselves from the consumer protection laws of this State. This result would be unconscionable and in direct conflict with the legislature’s declared public policy as evidenced by the Merchandising Practices Act and similar statutes. Accordingly, we find that the arbitration provisions contained in the Terms and Conditions provided to Whitney by Alltel would be substantively unconscionable as applied to this type of dispute.

In regard to Alltel’s ancillary contention that the trial court should not have considered the applicability of the “Limitations of Liability” section found in the agreement when considering whether the arbitration provision was conscionable, we find that contention likewise has no merit. The “Limitations of Liability” section was expressly referenced within the arbitration provision, which specifically forbade the arbitrator from altering or modifying the terms of that “Limitations of Liability” section. Thus, the “Limitations of Liability” section was an integral part of the arbitration clause. This provision had to be considered by the trial court in assessing whether Whitney’s statutory rights could be effectively vindicated in the arbi-tral forum. See Leonard, 854 So.2d 529; Powertel, 743 So.2d 570; see also Randolph, 531 U.S. at 90, 121 S.Ct. at 522.

Based upon the evidence in the record, we find that the arbitration agreement provision of the contract between Alltel and Whitney was both procedurally and substantively unconscionable and that the trial court did not err in finding that it was unenforceable on this basis. Alltel’s third, fourth, and fifth points are denied.

For the foregoing reasons, the trial court’s denial of Alltel’s motion to compel arbitration is affirmed.

All concur.

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

      . Whitney also asserted a breach of contract claim, but that claim was later voluntarily dismissed.

      . The Limitations of Liability provision referred to in the arbitration provision stated, “OUR LIABILITY REGARDING YOUR USE OF THE SERVICE OR EQUIPMENT OR THE FAILURE OF OR INABILITY TO USE THE SERVICES OR EQUIPMENT IS LIMITED TO THE CHARGES YOU INCUR FOR SERVICES OR EQUIPMENT DURING THE AFFECTED PERIOD. THIS MEANS WE ARE NOT LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (SUCH AS LOST PROFITS OR LOST BUSINESS OPPORTUNITIES), PUNITIVE OR EXEMPLARY DAMAGES, OR ATTORNEYS' FEES.”

      . 9 U.S.C. § 3 states that "[i]f any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration trader such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.”

      . 9 U.S.C. § 4 provides that "[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.”

      .We do note, however, that the applicability of Sections 3 and 4 to state courts was recently and ably addressed by the California Supreme Court in Cronus Investments, Inc. v. Concierge Services, 35 Cal.4th 376, 25 Cal. Rptr.3d 540, 107 P.3d 217, 225-26 (2005), as follows:
      The language used in sections 3 and 4 and the legislative history of the FAA suggest that the sections were intended to apply only in federal court proceedings. Section 4 refers to the "United States district court” and provides that it can be invoked only in a court that has jurisdiction under title 28 of the United States Code. This language indicates that Congress intended to limit the application of the section to federal courts. In 1954, as a purely clerical change, Congress inserted "United States district court" in § 4 as a substitute for "court of the United States.” Both House and Senate Reports explained: "United States district court' was substituted for ‘court of the United States’ because, among Federal courts, such a proceeding would be brought only in a district court.”
      Although 9 United States Code section 3 is less clear, it would appear that ‘courts of the United States’ under section 3 means federal district courts, because state courts are courts ‘in’ but not ‘of the United States as commonly designated in federal law. Because sections 3 and 4 constitute part of the same enforcement scheme under the FAA, the language in both sections should be interpreted consistently.... Moreover, before the minor amendment in section 4’s phrasing, [a]s originally enacted, § 3 referred, in the same terms as § 4, to ‘courts [or court] of the United States. The legislative history of the original enactment further suggests that sections 3 and 4 were intended to regulate federal procedures for the enforcement of arbitration agreements. Thus, the identical phrasing in the FAA’s original procedural provisions together with its legislative history reflects a congressional intent that the two sections apply to federal courts.
      Further, the United States Supreme Court does not read the FAA’s procedural provisions to apply to state court proceedings. "[W]e do not hold that §§ 3 and 4 of the Arbitration Act apply to proceedings in state courts. Section 4, for example, provides that the Federal Rules of Civil Procedure apply in the proceedings to compel arbitration. The Federal Rules do not apply in such state court proceedings.” [quoting Southland Corp. v. Keating, 465 U.S. 1, 16 n. 10, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984)]. In [Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 477 n. 6, 109 S.Ct 1248, 103 L.Ed.2d 488 (1989)], the high court later confirmed that, "While we have held the FAA’s ‘substantive’ provisions— §§ 1 and 2 — are applicable in state as well as federal court, we have never held that §§ 3 and 4, which by their terms appear to apply only to proceedings in federal court, are nonetheless applicable in state court."
      (internal quotations and citations omitted).
      The California Supreme Court went on to conclude that “[l]ike other federal procedural rules, ... the procedural provisions of the [FAA] are not binding on state courts ... provided applicable state procedures do not defeat the rights granted by Congress.” Id. at 226 (internal quotations and emphasis omitted).

      . We need not determine whether the trial court’s denial of Alltel's motion to stay the litigation could properly be appealed to this Court, something not provided for in § 435.440, because the trial court’s denial of the motion to compel arbitration rendered the motion to stay litigation moot. Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 433 (Mo.banc 2003).

      . Citing: Knepp v. Credit Acceptance Corp. (In re Knepp), 229 B.R. 821, 842 (Bankr.N.D.Ala.1999); Keating v. Superior Court of Alameda County, 31 Cal.3d 584, 183 Cal.Rptr. 360, 645 P.2d 1192, 1207 (1982), rev'd in part and appeal dismissed in part on other grounds, Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984); Rollins, Inc. v. Foster, 991 F.Supp. 1426, 1437 (M.D.Ala.1998); Patterson v. ITT Consumer Fin. Corp., 14 Cal.App.4th 1659, 18 Cal.Rptr.2d 563 (1993); Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 700 N.E.2d 859, 866-67 (1998); State of West Virginia ex rel. Dunlap v. Berger, 211 W.Va. 549, 567 S.E.2d 265 (2002); and Ting v. AT & T, 182 F.Supp.2d 902, 938-39 (N.D.Cal.2002).

      . See Burden v. Check Into Cash of Kentucky, 267 F.3d 483, 492-93 (6th Cir.2001); Johnson v. West Suburban Bank, 225 F.3d 366, 373-74 (3rd Cir.2000); Bischoff v. DirecTV, Inc., 180 F.Supp.2d 1097, 1108 (C.D.Cal.2002); Auto-Nation USA Corp. v. Leroy, 105 S.W.3d 190, 201 (Tex.App.-Houston [14th Dist.] 2003); Ranieri v. Bell Atl. Mobile, 304 A.D.2d 353, 759 N.Y.S.2d 448, 449 (N.Y.App.Div.2003); Edelist v. MBNA Am. Bank, 790 A.2d 1249, 1260-61 (Del.Super.Ct.2001).

      . See Iberia Credit Bureau, Inc. v. Cingular Wireless L.L.C., 379 F.3d 159, 174-75 (5th Cir.2004); Livingston v. Associates Fin., Inc., 339 F.3d 553, 557 (7th Cir.2003); Snowden v. CheckPoint Check Cashing, 290 F.3d 631, 638 (4th Cir.2002); Randolph v. Green Tree Fin. Corp., 244 F.3d 814, 818 (11th Cir.2001); Gras v. Associates First Capital Corp., 346 N.J.Super. 42, 786 A.2d 886, 892 (2001); Pyburn v. Bill Heard Chevrolet, 63 S.W.3d 351, 363 (Tenn.Ct.App.2001); Rains v. Foundation Health Sys. Life & Health, 23 P.3d 1249, 1253 (Col.Ct.App.2001).

      . While arguing that the arbitration provisions are not unconscionable, Alltel has failed to explain, at any point on appeal or before the trial court, how an individual consumer that has been negligently, fraudulently, or otherwise improperly billed for relatively small charges could obtain a practical and adequate remedy under the arbitration provisions.


source: Caselaw Access Project

author: THOMAS H. NEWTON, Presiding Judge.

license: Public Domain

text:
    Karen MEDLEY, Appellant, v. VALENTINE RADFORD COMMUNICATIONS, INC., Respondent.
    No. WD 64606.
    Missouri Court of Appeals, Western District.
    July 19, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 80, 2005.
    Application for Transfer Denied Nov. 1, 2005.

      Michael J. Gallagher, Kansas City, MO, for Appellant.

      Larry M. Sehumaker, Kansas City, MO, for Respondent.
    Before: THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN and PATRICIA A. BRECKENRIDGE, JJ.
   THOMAS H. NEWTON, Presiding Judge.

I. Factual and ProceduRAL Background

Ms. Karen Medley began working for Valentine Radford in February 2001 as a media supervisor. She worked between fifty and sixty hours a week. She was responsible for negotiating and buying media for clients and for various other media distribution matters. Because she had already planned a vacation for March 2001, she was hired with the understanding that she could take a week off for that vacation without pay. As a part of her benefits, she was given five days of sick leave and fifteen days of vacation, in addition to the week off in March.

Ms. Medley missed a week of work in April 2001 due to a sinus infection. She then missed three weeks of work from June 25 to July 13 due to a “menstrual episode” and “fatigue.” When she returned, she had used up all of her paid sick leave and vacation time for the year. A few months after Ms. Medley started at Valentine Radford, she began experiencing unusual menstrual periods with excessive bleeding and cramping. She was ultimately treated by Dr. Ryan Reynolds, a gynecologist, for a fundal uterine mass and diagnosed with menorrhagia and dysme-norrea. She began treatment for this by being placed on Depo Provera in September 2001. She followed Valentine Rad-ford’s policy to request short-term disability by filling out an Employee Statement and providing an Attending Medical Doctor’s Statement and went on disability leave on September 16, 2001, with a return date of November 1, 2001.

Ms. Medley learned that, as a result of her health problems, she would be unlikely to ever have children. She began to experience depression, and in October 2001 she saw licensed clinical social worker Riley Bishop. He advised her that it would not be in her best interests to return to work immediately. Mr. Bishop wrote a note requesting additional medical leave for Ms. Medley, but because he is not a medical doctor, that note was not sufficient to entitle Ms. Medley to further medical leave. She did not return to work on November 1, 2001.

On November 12, 2001, Ms. Medley filled out another Employee Statement, describing her symptoms as fatigue, anxiety, and depression and stating that she had trouble doing normal daily functions. On November 19, 2001, Ms. Medley sent an email to Ms. Carla Brown, Human Resources Manager, telling her that she would submit the paperwork for her absence since November 1 “as soon as I can get a handle on it.” Ms. Medley saw Dr. Reynolds, but he was not able to provide her with a medical excuse because he was only treating her for her physical problems, which were improving, and not her depression. Ms. Medley then made an appointment for December 11, 2001, with Dr. Walker, a psychiatrist, to get the proper paperwork. She sent Ms. Brown and Mr. Jeff Huggins, Vice President/Director of Operations, an email letting them know about her upcoming appointment with Dr. Walker. On December 4, 2001, Mr. Huggins sent her an email telling her that even after repeated requests they had no paperwork from a medical doctor stating she could not come back to work and so if she did not return by December 10 then he would accept that as her voluntary resignation.

Ms. Medley returned to work on December 5, 2001. She wrote an email to her boss, Mr. Norm Olson, advising him of upcoming doctors’ appointments and a family matter that would require her to miss various days of work. There was no objection to those missed days. Ms. Medley had a relapse of her physical problems and began missing work again on December 26, 2001. She sent an email to Mr. Olson each morning letting him know that she would not be able to work and explaining what her symptoms were. On January 2, 2002, she sent Mr. Olson an email explaining that she would not be able to work full-time for the rest of the week and had an appointment with Dr. Reynolds the next week to evaluate surgical options. She offered to come in for half days or to work from home in the interim. Mr. Huggins sent her an email and a letter on January 3, 2002, stating that because she had not been able to work on a regular basis and had not provided a valid doctor’s excuse, “we have to assume that you have abandoned your position.”

On January 25, 2002, Ms. Medley’s attorney wrote to Mr. Huggins and Ms. Brown, demanding that Ms. Medley be reinstated and asserting that Valentine Radford had violated the Missouri Human Rights Act (MHRA) and the Americans with Disabilities Act (ADA). On February 8, 2002, Valentine Radford’s attorney responded, denying liability and stating that Ms. Medley could reapply with the company. On February 27, 2002, Ms. Medley wrote to Ms. Brown to reapply and asked what she needed to do to pursue that. Mr. Huggins responded by sending Ms. Medley a letter telling her to email her resume to human resources where it would be reviewed if a position was available that met her qualifications. Nothing further happened regarding Ms. Medley’s efforts to get rehired. Her former position was never filled; her duties were instead divided among other employees in her department.

Ms. Medley filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) and the Missouri Commission on Human Rights (MCHR), alleging that she was discharged because of her disability in violation of the MHRA, section 213.010, et seq. On November 8, 2002, the MCHR issued its Notice of Right to Sue. Ms. Medley brought this lawsuit against Valentine Radford, alleging that it discharged her because of her disability, in violation of the MHRA, refused to reasonably accommodate her disability, and retaliated against her by not rehiring her because she opposed its refusal to reasonably accommodate her disability. The trial court granted Valentine Rad-ford’s motion for summary judgment. In its motion, Valentine Radford claimed that there was insufficient evidence to find that it violated the MHRA because it terminated Ms. Medley due to her failure to come to work regularly and insufficient evidence to find that it retaliated against her when it did not rehire her. Ms. Medley appeals.

Ms. Medley brings two points on appeal. She first claims that the trial court erred in granting Valentine Radford’s motion for summary judgment on the claim of discrimination and refusal to accommodate. She claims that there were genuine issues of material fact as to whether Ms. Medley could establish a prima facie case of discrimination and refusal to accommodate. She next claims that the trial court erred in granting summary judgment on her claim that Valentine Radford retaliated against her by refusing to rehire her because she invoked her rights under the MHRA. She claims that there were disputed facts as to whether she could establish a prima facie case of retaliation.

II. Standard of Review

The trial court shall enter summary judgment only if “the motion, the response, [and] the reply ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 74.04(c)(6). The appellate court reviews the grant of summary judgment essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is reviewed in the light most favorable to the party against whom judgment was entered, and the non-movant is given the benefit of all reasonable inferences from the record. Id.

The moving party’s entitlement to judgment as a matter of law revolves to a great extent around whether that party is the claimant or the defending party. Id. at 381. The claimant is the party “seeking to recover,” and the defending party is the party “against whom a claim ... is asserted.” Rule 74.04(a) & (b). Valentine Rad-ford is the defending party. As the defending party, Valentine Radford is not required to controvert each element of Ms. Medley’s claim to establish its right to summary judgment. ITT Commercial Fin. Corp., 854 S.W.2d at 381. Instead, Valentine Radford can establish its right to judgment by showing (1) facts that negate any one of Ms. Medley’s elements; (2) that Ms. Medley, 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 her elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support Valentine Radford’s properly-pled affirmative defense. Id. Valentine Radford relied on the first method by negating Ms. Medley’s claim that she fit within the MHRA.

To prevent summary judgment, Ms. Medley needed to show that there is a genuine dispute as to the facts underlying Valentine Radford’s right to judgment. See id. If the parties disagree on the legal effect and consequences of the facts, and not the relevant facts themselves, there is not a genuine dispute of facts precluding summary judgment. Betts-Lucas v. Hartmann, 87 S.W.3d 310, 322 (Mo.App. W.D. 2002).

We will affirm a grant of summary judgment if the decision is correct “under any theory supported by the record developed below and presented on appeal.” Victory Hills Ltd. P’ship. I v. NationsBank, N.A., 28 S.W.3d 322, 327 (Mo.App. W.D.2000). “If the trial court’s judgment does not specify the basis upon which summary judgment was granted, we will uphold the decision if it was appropriate under any theory.” Horneyer v. City of Springfield, 98 S.W.3d 637, 639 (Mo.App. S.D.2003).

III. Legal Analysis

This case deals solely with the MHRA; Ms. Medley did not bring a claim under the ADA. But in deciding a case under the MHRA, we are guided by both Missouri law and any applicable federal employment discrimination decisions. Mason v. Wal-Mart Stores, Inc., 91 S.W.3d 738, 741 (Mo.App. W.D.2002); Pollock v. Wetterau Food Distribution Group, 11 S.W.3d 754, 762 (Mo.App. E.D.1999).

A. Discrimination and Refusal to Accommodate

Under the MHRA, it is unlawful for an employer to discriminate against or discharge any employee because of a disability. § 213.055. A disability is

a physical or mental impairment which substantially limits one or more of a person’s major life activities, being regarded as having such an impairment, or a record of having such an impairment, which with or without reasonable accommodation does not interfere with performing the job. ...

§ 213.010(4). So in order to be disabled under the MHRA, a person must have an impairment that limits a major life activity and with or without reasonable accommodation that impairment must not interfere with performing a job. Id. This is the main difference between the MHRA and the ADA, which prohibits discrimination against a qualified individual with a disability. 42 U.S.C. § 12112(a) (1995). The MHRA makes the question of whether the job can be performed with or without reasonable accommodation a part of the test to determine whether an employee is disabled; not making reasonable accommodations is a type of discrimination under the ADA. Devor v. Blue Cross & Blue Shield of Kansas City, 943 S.W.2d 662, 666 (Mo.App. W.D.1997); 42 U.S.C. § 12112(b)(5)(A) (1995). Nonetheless, the definitions are similar enough that federal cases are instructive whenever Missouri cases do not answer a question. See e.g., Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir.2000) (when determining whether an individual can establish a prima facie case of discrimination under the ADA, one part of the inquiry includes determining whether the individual can perform the essential job functions, with or without reasonable accommodation).

“A reasonable accommodation is an accommodation that does not impose undue financial and administrative burdens on the employer or require fundamental alterations in the nature of the program.” Devor, 943 S.W.2d at 666 (internal quotation marks and citation omitted). An employer must make reasonable accommodations to the known limitations of a handicapped employee or applicant, including making the facilities accessible and usable and job restructuring or part-time or modified work schedules. 8 C.S.R. 60-3.060(l)(G)(l) and (2).

Ms. Medley’s complaint is that Valentine Radford did not even try to make a reasonable accommodation for her disability. Valentine Radford claims that Ms. Medley is not a disabled person under the MHRA, so we should not even consider reasonable accommodations. The first problem is that the parties claim that different prima facie elements apply to this case. Ms. Medley claims that her prima facie case is proof that: (1) plaintiff is a person with a disability within the meaning of the statute; (2) the employer had notice of the disability; (3) with reasonable accommodation plaintiff could perform the essential functions of the job; and (4) the employer refused to make such accommodations. See Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir.2004) (prima facie case when a disabled plaintiff shows, among other matters, that he or she can perform a particular job with a reasonable accommodation). But Valentine Radford claims that the prima facie case requires proof that: (1) plaintiff had a disability; (2) plaintiff was qualified to perform the essential functions of her job with or without reasonable accommodations; and (3) defendant discriminated against plaintiff because of her disability. See Darby v. Bratch, 287 F.3d 673, 682 (8th Cir.2002) (elements of prima facie ADA discrimination case).

But neither is using the Missouri prima facie case standard. In Missouri, the prima facie case under the MHRA requires the plaintiff to show that: (1) she is handicapped; (2) she was discharged; and (3) there is evidence from which to infer that the handicap was a factor in her discharge. Devor, 943 S.W.2d at 665. There is also a three-step burden shifting analysis that must be followed for the plaintiff to win in a discrimination case. See City of Clayton v. Mo. Comm’n on Human Rights, 821 S.W.2d 521, 527-28 (Mo.App. E.D.1991). The plaintiff must establish her prima facie case first. So she must show that she is handicapped, which, under the statute, requires showing that she has an impairment but that with or without reasonable accommodation that impairment does not interfere with her job, and show the other two elements of her prima facie case. See Devor, 943 S.W.2d at 666. Once this burden is met, the burden shifts to the employer to articulate some legitimate, non-diseriminatory reason for its conduct. Snyder v. ICI Explosives USA, Inc., 938 S.W.2d 946, 949 (Mo.App. S.D.1997). If the employer does this, the burden then shifts back to the employee/plaintiff to show that the reason is pretextual. Id. And “[u]nder the Missouri statute, the employer has an affirmative duty to reasonably accommodate an employee’s handicap but the burden is on the employee to establish that with reasonable accommodation he could perform the job.” City of Clayton, 821 S.W.2d at 529. Because Missouri law provides the prima facie case, we do not look to federal law for the prima facie case.

The parties cite numerous cases, the majority of which are federal, to try to show why or why not Ms. Medley was disabled and should or should not have been reasonably accommodated. The threshold issue is whether or not Ms. Medley is disabled within the statute. And as already stated, to be disabled under the MHRA, Ms. Medley must be able to show that she has an impairment but can work with or without reasonable accommodation. § 213.010(4). Since she was unable to work without accommodation, the question here is whether she can complete the essential functions of her job with reasonable accommodations.

Ms. Medley wants to skip right to the prima facie test that considers whether or not Valentine Radford made an effort to reasonably accommodate her. But before we can even get to that test, we must first decide the threshold question of whether she is disabled under the MHRA. Even under her test, the first element is whether she is disabled under the statute. And she is not.

Ms. Medley missed a lot of work during her ten and a half months at Valentine Radford. And although most of that missed time was sick leave, vacation, and medical leave, she also missed an additional five weeks without taking proper medical leave before her final absences that resulted in her termination. She knew that she needed a statement from a medical doctor to have her leave extended past November 1, 2001, but she did not obtain that statement. And although she did return before she was able to see the psychiatrist, there is nothing in the record explaining why she was unable to get a statement from the psychiatrist to justify the five weeks that she had already missed. Then, after being back for less than three weeks, Ms. Medley had a relapse and missed work again. And although she said that she was going to see the doctor the following week, she did not provide Valentine Radford with any definite time that she thought that she might return. So Valentine Radford was left in a situation where its media supervisor appeared to no longer be dependable, regardless of the reason. And although Ms. Medley offered at that late time to work part-time or from home, that was after she had already missed a lot of work without complying with the company’s leave policy.

“[Rjegular and reliable attendance is a necessary element of most jobs.” Span gler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 850 (8th Cir.2002) (internal quotation marks and citations omitted). And an employee who cannot regularly come to work is not able to satisfy any functions of the job, let alone the essential ones. Id. According to Mr. Huggins, Ms. Medley’s job required her to be in the office. He stated that it was not a part-time position and that working from home had been tried and had failed because of the special requirements of the position. So working part-time or from home was not an option and she could not be accommodated in that way. See Kinnaman v. Ford Motor Co., 79 F.Supp.2d 1096, 1103 (E.D.Mo.2000) (the court defers to the employer’s determination that regular and predictable attendance is an essential function of the job). There are certain jobs where such accommodation might be reasonable, but Ms. Medley’s job was not one of them. Her job required her to be in the office, and, based on her own description of what she did, it was fast-paced. That type of job is not conducive to being done part-time or from home.

Her continued health problems and her failure to comply with the leave policies created a situation where there was no reasonable accommodation that would have allowed her to do her essential job functions. And the fact that she later got better is irrelevant because Valentine Rad-ford had no way of knowing at that time how long this health problem would continue.

Ms. Medley relies on Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir.2000), to claim that summary judgment should be reversed. In Garcia-Ayala, the plaintiff was out of work on short-term disability for over a year and was terminated under a company policy to not hold a job open for more than one year, even after she asked for additional leave. Id. at 642. The First Circuit found that because Lederle did not contest the reasonableness of the accommodation of giving her more leave time, instead just saying that any leave past the one year was unreasonable, summary judgment for Led-erle was inappropriate and plaintiff was entitled to judgment as a matter of law. Id. at 648-50. But Garciar-Ayala is different from the present case because the plaintiff in that case did comply with all of the company’s policies to take her short-term leave and also was easily replaced by temporary workers while she was out. Id. at 642. Ms. Medley, on the other hand, missed a lot of work without following company policies to miss that work, and temporary workers could not fill her position. So she is not entitled to the same result.

Ms. Medley’s case is more like Kinna-man. In Kinnaman, the plaintiff claimed that the defendant discriminated against her because of her disability, violating both the ADA and the MHRA. 79 F.Supp.2d at 1097. The plaintiff was a full-time hourly assembler at the Ford plant. Id. at 1098. In 1990, she began having various problems with her wrists, making it difficult for her to do certain assembler jobs. Id. at 1099. She took numerous medical leaves of absence, some related to her health problems and some not related. Id. After one such leave where she did not attempt to return until a month after her leave ended, defendant terminated her. Id. at 1100. When plaintiff objected, a settlement was reached wherein she would be reinstated if she successfully passed a physical and drug screen. Id. Based on restrictions placed on her due to her wrists, she was not reinstated. Id. The defendant moved for summary judgment. Id.

The court first focused on whether the plaintiff was a qualified individual under the ADA. Id. at 1101. That question involves two steps: does the person possess the requisite skill and experience for the position and can the individual, despite her impairments, perform the essential functions of her job either with or without reasonable accommodation. Id. The court assumed that the plaintiff met the first step and focused on the second, finding that she could not prove that she could perform the essential functions of her job with or without reasonable accommodations. Id. at 1101-02. Plaintiff argued that the issue of her absenteeism was irrelevant because it was not raised as the reason that the defendant refused to reinstate her. Id. at 1102. But the court stated that plaintiff missed the point because her chronic, excessive absenteeism was “highly relevant to plaintiffs prima facie case which must first be addressed before any consideration can be given to the merits of the defendant’s reason for refusing to reinstate plaintiff.” Id.

The court discussed the essential functions of a job, which means the fundamental job duties of a particular position and noted that the Eighth Circuit has expressly found that regular and reliable attendance is necessary for most jobs. Id.; see also Spangler, 278 F.3d at 850. Regular attendance is essential since a plaintiff must be present to do the job. Kinnaman, 79 F.Supp.2d at 1103 n. 9. The court held that plaintiff did not establish that she could perform any of the functions of her job without accommodation because she could not perform an essential function of her job — attending work regularly. Id. at 1103. Because plaintiff did not identify or provide supportive evidence of any reasonable accommodation that would have enabled her to regularly attend work, she did not meet her burden of showing that she could perform the essential functions of her job with reasonable accommodation. Id. An employer is not required to put up with employees who do not come to work and is not required to provide indefinite leaves of absence. Id. at 1103-04. An indefinite leave is not reasonable because it does not actually allow the employee to work; the employee is not there. Id. at 1104.

Although there is no suggestion that Ms. Medley missed work for any reason other than her health problems, her case is otherwise similar to Kinnaman. She missed an excessive amount of work. She stayed away for five weeks after her approved leave of absence expired, even knowing that she had to provide a doctor’s note. And she provides no explanation why she did not provide that note from the psychiatrist after she saw him to justify the five weeks that she had missed.

And like the plaintiff in Kinnaman, she is skipping the issue of her excessive absenteeism and trying to go straight to the question of whether or not Valentine Rad-ford made an effort to reasonably accommodate her. But she has not answered the threshold question of whether or not she is disabled within the statute. Although she did get well over the next year after she was fired, when she was terminated Valentine Radford had no way of knowing when she would be able to work regularly. So she was not able to perform an essential function of her job — working regularly. And it was unreasonable to expect Valentine Radford to give her an indefinite leave of absence. Kinnaman, 79 F.Supp.2d at 1104. Ms. Medley’s absences were irregular enough that Valentine Rad-ford was unsure about her regular attendance in the future. And considering how generous Valentine Radford had already been in giving Ms. Medley time to return to work and provide them with the proper paperwork for her absence, it was not unreasonable for Valentine Radford to end the employment relationship.

We acknowledge that Ms. Medley had a horrible medical condition, but she also had ample time to comply with Valentine Radford’s short-term disability policy to validate her missed work from November 1 on, and she chose not to do so. She was aware of the fact that she needed to provide a doctor’s note, and her failure to do so left Valentine Radford in the awkward position of trying to accommodate her illness while having no proof of that illness under its policies. Although Ms. Medley’s physical health problems were severe, Valentine Radford could not be expected to allow her to miss work regularly because of them. See Pickens v. Soo Line R.R. Co., 264 F.3d 773, 775, 777-78 (8th Cir.2001) (plaintiff was a conductor, hurt his back, and after he returned to work he would regularly make himself unavailable for work by exercising his right to “lay off’ as needed for his back problems; employer was entitled to judgment as a matter of law on ADA claim because regular, reliable attendance was required and unfettered ability to not work was not a reasonable accommodation — plaintiffs suggested method of only working when he feels like it was not reasonable).

Further, Ms. Medley has not suggested what type of accommodation would have allowed her to perform any functions of her job, let alone the essential ones. While it is true that her final emails requested being allowed to work part-time or from home, she had already missed five weeks without any sort of formal leave. And although she asked to work a modified schedule until she got back, she did not give Valentine Radford a possible return time, she merely said that she was going back to Dr. Reynolds the following week to discuss other medical options. Mr. Huggins stated in his deposition that her job was not a part-time or an at home job. She needed to be in the office to use the specialized software for her job. Ms. Medley did media buys for her clients, so she needed to be in the office and available to speak with her clients and the companies from whom she was making the buys. This could not be done from home, particularly when she was apparently so sick that she spent the majority of her time in bed and sleeping. See Spangler, 278 F.3d at 850 (plaintiff needed to be at work because her position required her to take daily phone calls, answer inquiries from other banks, complete transactions in a timely manner, and member bank customers relied on her for their daily cash needs). So her suggested accommodation did not enable her to do the essential functions of her job; it merely postponed her return. And Valentine Radford had already been accommodating up to the time that it terminated her.

Based on the facts, as Valentine Radford knew them in January 2002, there was no reasonable accommodation that would allow Ms. Medley to do her job. So Ms. Medley was not disabled under the MHRA and thus failed to prove an element of her claim. She did not satisfy her burden to show that with reasonable accommodation she could perform her job. City of Clayton, 821 S.W.2d at 529.

Further, even if Ms. Medley had met her burden and established her prima facie case, Valentine Radford offered a legitimate, non-discriminatory reason for her termination. Id. at 528. Valentine Radford fired Ms. Medley because of her excessive absences without any type of doctor’s excuse, and it appeared that this problem would continue indefinitely. Although her excessive absenteeism was related to her health problem, she still missed a lot of work without following company policy and providing a proper doctor’s note. It was reasonable for Valentine Radford to be concerned at that point that this would continue indefinitely. So this reason is legitimate and non-discriminatory. And Ms. Medley cannot, and did not, show that this reason is pretextual.

Therefore, Valentine Radford was entitled to summary judgment.

B. Retaliation

Ms. Medley also claims that Valentine Radford retaliated against her when it did not rehire her after its attorney told her that she could reapply. The prima facie case for retaliation requires the employee to show that (1) she complained of discrimination; (2) the employer took adverse action against her; and (3) the adverse action was causally linked to the discrimination complaint. Thompson v. Western-Southern Life Assurance Co., 82 S.W.3d 203, 207 (Mo.App. E.D.2002). If the employee meets this burden, the burden then shifts to the employer to show a legitimate, non-discriminatory reason for its actions. Id. If that burden is met, then the employee must present evidence showing that the employer’s reason is a pretext for retaliation. Id.

Ms. Medley meets the first two elements of her prima facie case. She complained of discrimination after she was fired when her lawyer accused Valentine Radford of violating the MHRA. And not being rehired is arguably an adverse action against her.

The problem is whether she can demonstrate that the adverse action was causally related to her discrimination complaint. Valentine Radford claims that its decision to not rehire Ms. Medley was not related to her claim under the MHRA. It points out that no one was hired to replace her and that her duties were redistributed to other people in the department. Further, it appears that after Ms. Medley was told to submit her resume to human resources so that she could be considered for any appropriate positions, she did not do so. So she does not appear to have provided sufficient evidence to support a finding that the failure to rehire her was related to her discrimination complaint. And the fact that the failure to rehire happened only a month after she complained is not enough to change that. Buettner v. Arch Coal Sales Co., 216 F.3d 707, 715-16 (8th Cir.2000) (although a causal connection may be proven circumstantially by showing that the discharge followed the protected activity very closely in time, usually “more than a temporal connection between protected activity and an adverse employment action is required to show a genuine factual issue on retaliation exists”).

Further, even if we found that Ms. Medley did supply a causal connection, Valentine Radford offered a legitimate, non-discriminatory reason to not rehire her to her old job. Her job duties were divided among the other people in the department, and so it was unnecessary to hire someone else. And Ms. Medley has offered no evidence that this claim was pretextual. Further, we do not interpret the attorney’s letter as an offer of reemployment to Ms. Medley, it was simply notice that she was free to reapply and that she would be considered if she did so. There was no guarantee that she would be offered a job, and Valentine Radford was not required to have her position open.

So summary judgment was properly granted on this point as well.

IV. Conclusion

We sympathize with Ms. Medley, knowing that she suffered from a terrible health problem. The law, however, directs us to this result. There were no disputed facts, and Ms. Medley could not show that there was any reason to think that she could work with reasonable accommodation at the time that Valentine Radford terminated her. So she did not fit under the MHRA, and Valentine Radford was entitled to judgment as a matter of law. Hence, the trial court’s grant of summary judgment in favor of Valentine Radford is affirmed. We also affirm the summary judgment in favor of Valentine Radford on the retaliation claim.

HAROLD L. LOWENSTEIN and PATRICIA A. BRECKENRIDGE, JJ., concur.

      . Unless otherwise indicated, all statutory references are to RSMo. (2000).

      . Ms. Medley claims that she was still eligible for an additional fifty-eight days of short-term disability leave. But to arrive at this number, she is completely disregarding the five additional weeks that she missed work after her leave ended in November 2001. As she never provided Valentine Radford with the proper paperwork to take that time off, she did not use her short-term disability leave during that time. But she also had no vacation or sick leave left then and Valentine Radford was simply generous in waiting for so long before requiring her to return and in apparently not counting that time against her. We do not know how many days she should have left, but under the circumstances, it is unreasonable for her to claim fifty-eight days. Further, since she cannot prove that she was disabled under the MHRA, her available short-term disability leave is irrelevant.

      . Ms. Medley maintains that the court found against Mr. Pickens because he had his doctor falsify his ability to work and threatened to do so again. But although that was one reason supporting judgment for the employer, that was merely an additional reason, not the only one. Pickens, 264 F.3d. at 778. The court also found that his inability to attend work regularly meant that he could not work with reasonable accommodation. Id.

      . Ms. Medley complains that Valentine Rad-ford cannot complain that it was a hardship to have other people cover Ms. Medley's duties while she was gone and then claim that it did not need to hire anyone for her position because the other employees had taken on those additional duties. But while this may appear to allow Valentine Radford to have it both ways, it can also be interpreted another way. While Ms. Medley was still employed at Valentine Radford, they were her duties and the other employees were unexpectedly having to shoulder them. After she was terminated and the duties were redistributed, they became a part of the other employees’ duties. So we perceive no conflict.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. James Robert BERGER, Appellant.
    No. WD 63721.
    Missouri Court of Appeals, Western District.
    July 26, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 30, 2005.
    Application for Transfer Denied Nov. 1, 2005.
    Don B. Roberson, Kansas City, MO, for appellant.
    Donald G. Stouffer, Marshall, MO, for respondent.
    Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM:

James R. Berger appeals his conviction for driving while revoked, under section 302.321, RSMo Cum.Supp.2004. Because a published opinion would have no prece-dential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 30.25(b).


author: EDWIN H. SMITH, Chief Judge.

text:
    STATE of Missouri ex rel. SOUTHWESTERN BELL TELEPHONE, L.P., d/b/a SBC Missouri, and Sprint Missouri, Inc., d/b/a Sprint, Appellants, v. The MISSOURI PUBLIC SERVICE COMMISSION and Office of Public Counsel, Respondents.
    Nos. WD 64502, WD 64592.
    Missouri Court of Appeals, Western District.
    July 26, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 30, 2005.
    Application for Transfer Denied Nov. 1, 2005.

      Paul G. Lane, Leo J. Bub, Robert J. Gryzmala, and Mimi B. MacDonald, St. Louis, MO, for appellant SBC.
    Kenneth A. Schifman and Brett D. Leopold, Overland Park, KS, for appellant Sprint.
    Dana K. Joyce, General Counsel, and William K. Haas, Deputy General Counsel, Jefferson City, MO, for respondent PSC.
    Michael F. Dandino, Senior Public Counsel, Jefferson City, MO, for respondent Office of the Public Counsel.
    Before: EDWIN H. SMITH, C.J., and HOWARD and HOLLIGER, JJ.
   EDWIN H. SMITH, Chief Judge.

Southwestern Bell Telephone (SBC), d/b/a SBC Missouri, filed, pursuant to § 392.245.11, proposed tariff revisions with the Public Service Commission (Commission) seeking to increase rates for certain non-basic telecommunications services being provided to its customers. Following a hearing, the Commission denied SBC’s proposed tariff revisions on the basis that they were “not just and reasonable.” SBC appealed to the Circuit Court of Cole County, which affirmed the Commission’s order denying the proposed revisions.

SBC raises four points on appeal, the first three of which essentially raise the same issue. In Points I, II and III, SBC claims that the Commission erred because its order denying its proposed tariff revisions was unlawful in that the Commission “disregarded the requirements of section 392.245.11, ... requir[ing] the [Cjommission to approve price cap increases up to 8% each year for non-basic services[J” In Point IV, SBC claims that the Commission erred because its order denying the proposed tariff revisions was unreasonable “in that [the Commission] had previously approved ... significantly higher rates charged by SBC Missouri’s competitors for the identical services.”

We reverse and remand.

Facts

On June 10, 2003, SBC filed proposed tariff revisions with the Commission seeking to establish increased rates for two non-basic telecommunications services being provided to its customers, specifically: (1) Line Status Verification (LSV), which allows a caller to check for conversation on another telephone line; and (2) Busy Line Interrupt (BLI), which allows a caller to request that another line be interrupted in order to receive a call from the calling customer. At the time, SBC was charging $1.50 for each use of LSV, and $2.31 for each use of BLI. The proposed rates were $1.62 and $2.49, which constituted increases of 8% and 7.8%, respectively.

On July 3, 2003, the Commission, on its own motion, suspended the proposed tariff revisions until November 7, 2003. On July 17, the Commission granted the intervention applications of Sprint Missouri, Inc., Spectra Communications Group, L.L.C., and CenturyTel of Missouri, L.L.C. On October 27-28, a hearing was held, and, on November 6, 2003, the Commission issued its order denying SBC’s proposed tariff revisions. The Commission recognized that the proposed rates were less than the statutory maximum allowable price, as set forth in § 392.245.11, but nonetheless determined that the proposed rates were “excessive,” such that they were “not just and reasonable.”

On November 14, 2003, SBC filed an application for rehearing, which the Commission denied. On December 8, 2003, SBC filed a timely writ of review in the Circuit Court of Cole County, which was taken up and heard on June 30, 2004. On August 16, 2004, the circuit court affirmed the decision of the Commission, finding that its order was “based upon competent and substantial evidence on the record as a whole[.]”

This appeal followed.

I.

SBC claims in Points I — III that the Commission erred because its order denying the proposed tariff revisions was unlawful in that the Commission “disregarded the requirements of section 392.245.11, ... requiring] the [CJommission to approve price cap increases up to 8% each year for non-basic services!)]” Specifically, it claims that the proposed rates were less than the statutory maximum allowable price such that the Commission lacked authority under “price cap regulation” to deny the proposed tariff revisions. We agree.

In State ex rel. Coffman v. Public Service Commission, 154 S.W.3d 316, 319-20 (Mo.App.2004) (internal citations omitted), we set forth the standard of review for appeals from decisions of the Commission:

On appeal, this court reviews the Commission’s decision, not that of the circuit court. Our function is two-fold: we must first determine whether the decision is lawful and then whether it is reasonable. The appellant[ ] bear[s] the burden of showing that the decision is either unreasonable or unlawful.
In determining whether the order is lawful, we exercise unrestricted, independent judgment and correct any erroneous interpretations of law. Lawfulness is determined by whether statutory authority for the order exists, and all legal issues are reviewed de novo.
If the order is lawful, we must then determine whether it is reasonable. Reasonableness depends on whether the order is supported by competent and substantial evidence on the whole record; whether the decision was arbitrary, capricious, or unreasonable; or whether the Commission abused its discretion. The decision of the Commission on factual issues is presumed to be correct until the contrary is shown and we are obliged to sustain the Commission’s order if it is supported by substantial evidence on the record as a whole.

Until 1996, every telecommunications company in Missouri was regulated in accordance with § 392.240. Under that statutory scheme, commonly known as “rate of return regulation,” telecommunications companies were permitted to raise the rates they charged consumers by filing proposed tariffs with the Commission that permitted them to receive a certain rate of return, which then went into effect, unless challenged by the Commission as being unjust or unreasonable. State Ex Rel. Sprint Mo., Inc. v. Pub. Serv. Comm’n, 165 S.W.3d 160 (Mo. banc 2005). In 1996, however, our legislature passed legislation authorizing non-traditional telecommunications companies to begin competing with existing telecommunications companies. Id at 161-62. In the new legislation, the newly authorized non-traditional companies were called “alternative local exchange telecommunications companies” or ALEC’s, § 386.020.1, while already existent companies, such as SBC, were called “incumbent local exchange telecommunications companies,” or ILEC’s. Section 386.020.22, .30. Id at 161-62. In order to ensure a level playing field for both ALEC’s and ILEC’s, the legislature adopted a regulatory scheme permitting an ILEC, under certain circumstances, to request that it be subject to a less restrictive regulatory scheme known as “price cap regulation.” Id at 162; see also Coffman, 154 S.W.3d at 318. That scheme is set forth in § 392.245, and is defined as an “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.” § 392.245.1. As to the Commission’s role in price cap regulation, § 392.245.1 provides that “[t]he commission shall have the authority to ensure that rates, charges, tolls and rentals for telecommunications services are just, reasonable and lawful by employing price cap regulation.”

There is no dispute as to the fact that SBC is subject to price cap regulation under § 392.245 as an ILEC. Therefore, in order to increase its rates for non-basic services being offered to its customers, SBC is required to comply with § 392.245.11, which governs such rate increases. That section, in pertinent part, provides:

[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.... An incumbent local exchange telecommunications company may change the rates for its services, consistent with the provisions of section 392.200, but not to exceed the maximum allowable prices, by filing tariffs which shall be approved by the commission within thirty days, provided that any such rate is not in excess of the maximum allowable price estabhshed for such service under this section.

§ 392.245.11. As noted, supra, in accordance with § 392.245, SBC filed with the Commission proposed tariff revisions requesting that it be permitted to raise its rates for two non-basic services being provided to its customers. In denying SBC’s proposed tariff revisions, the Commission, although recognizing that the proposed rates were less than the statutory maximum allowable price of § 392.245.11, eight percent more than the rate being charged, nonetheless denied the proposed rate increases, based upon its determination that they were “not just and reasonable.” In other words, the Commission conducted an independent just-and-reasonable analysis separate from its analysis concerning whether the proposed rate increases were in keeping with the statutory maximum allowable price.

SBC claims that because its proposed rate increases did not exceed the maximum allowable price, under § 392.245.11, the Commission lacked authority to deny its proposals. In other words, SBC, while conceding that the Commission is charged under § 392.245.1 with the duty of ensuring that the rates, charges, tolls and rentals charged by telecommunications companies are just, reasonable and lawful, is claiming that the Commission does this by ensuring that the rates, charges, tolls and rentals charged by telecommunications companies do not exceed the statutory maximum allowable price. Essentially SBC is claiming that the maximum allowable price set forth in § 392.245.11 constitutes a legislative determination of what constitutes a just and reasonable rate increase for non-basic telecommunications services, without any interference by the Commission in determining whether they are just and reasonable.

The Commission contends that it is not only authorized to determine whether proposed rates exceed the statutory maximum allowable price, but also to conduct a separate just-and-reasonable analysis considering all relevant factors. The Commission argues that this authority stems from the language of § 392.245.11 that: “An incumbent local exchange telecommunications company may change the rates for its services, consistent with the provisions of section 392.200, but not to exceed the maximum allowable prices[J” According to the Commission, because § 392.200 contains, along with numerous prohibitions against discriminatory pricing, a general clause stating that “[a]ll charges made and demanded by any telecommunications company for any service rendered or to be rendered in connection therewith shall be just and reasonable[,]” the legislature, by stating that an ILEC may only change the rates for its services in a manner consistent with the provisions of § 392.200, intended to authorize the Commission to conduct an independent just-and-reasonable analysis concerning proposed rates. Thus, the issue here is whether § 392.245.11 authorizes the Commission to conduct an independent just-and-reasonable analysis aside from its analysis concerning whether the proposed rates exceed the statutory maximum allowable price, under § 392.245.11, or, put another way, whether SBC and other ILEC’s have the unfettered right to raise rates for nonbasic services up to eight percent per year, provided they comply in all other respects with § 392.245.11.

In Sprint, the Missouri Supreme Court was called upon to interpret § 392.245.11. There, the Commission denied Sprint’s proposed tariff revision, requesting that it be permitted to increase its rate for a nonbasic service by 16% from the rate being charged. 165 S.W.3d at 163. On appeal, Sprint claimed that such a rate increase was permitted under § 392.245.11 because it had refrained from raising its rate for the service in question the previous two years such that the proposed rate was only an eight percent increase from the previous year’s maximum allowable price. Id. at 164-65. Hence, Sprint argued that the current maximum allowable price is not determined by the rate actually charged in the previous year, but instead by the previous year’s theoretical maximum allowable price. Id. “Sprint arguefd] 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[.]” Id. The Court disagreed, holding that the Commission’s order denying Sprint’s proposed tariff revision was lawful. Specifically, the Court held that:

[T]he maximum allowable price may be annually increased by up to eight percent. A company may choose 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.

Id. at 165-66. In doing so, the Court stated that, “when [Sprint] sought to raise its rates ..., its right to such an increase in price was capped at an eight percent increase over its prior year’s rate.” Id. at 165 (emphasis added). Furthermore, the Court, while explaining the history and purpose of price cap regulation, stated that: “Of course, pursuant to section 392.245.1, the ILEC is still subject to [the Commission’s] regulatory authority ‘to ensure that rates, charges, tolls and rentals for telecommunications services are just, reasonable and lawful.’ But, [the Commission] does so by means of ‘price cap regulation!.]’ ” Id. at 162-63.

There can be no doubt from the Court’s holding in Sprint that the Court interpreted § 392.245.11 as granting an ILEC, subject to price cap regulation, the right to annually increase its rate for a non-basic service by up to eight percent from the previous year’s rate. In other words, under the Court’s interpretation of § 392.245.11, the Commission upholds its duty of ensuring that the rates, charges, tolls and rentals charged by telecommunications companies are just, reasonable and lawful, by ensuring that the rates, charges, tolls and rentals charged by telecommunications companies do not exceed the statutory maximum allowable price. Inasmuch as the Supreme Court’s interpretation of § 392.245.11 is controlling, under Article V, Section 2 of the Missouri Constitution, SBC is correct that the Commission, in denying its proposed tariff revisions, unlawfully disregarded the requirements of § 392.245.11. Consequently, the Commission’s order denying SBC’s proposed tariff revisions is unlawful, requiring us to reverse.

Conclusion

The Commission’s order denying the appellant’s proposed tariff revisions is reversed, and the cause is remanded to the Commission with directions to approve SBC’s proposed tariff revisions, the Commission having already determined that they are in compliance with § 892.245.11.

HOWARD and HOLLIGER, JJ., concur.

      . Consolidated with this appeal is the appeal of Sprint Missouri, Inc. (Sprint), WD 64592. Sprint had sought the same tariff increases as SBC in a separate rate case. However, unlike SBC’s request, Sprint’s request was approved by the Commission as being reasonable. As such, Sprint was not aggrieved by the Commission’s decision in its case. Likewise, it was not aggrieved by the Commission’s decision in SBC’s case. Inasmuch as Sprint was not aggrieved by the Commission’s decision in its case or SBC’s case, it has no standing to appeal, requiring us to dismiss. State v. Pub. Serv. Comm'n, 360 Mo. 270, 228 S.W.2d 1, 3 (1950).

      . The SBC’s remaining claim of error is rendered moot. See Mo. Consol. Health Care Plan v. Cmty. Health Plan, 81 S.W.3d 34, 50 (Mo.App.2002) (a point is moot where resolution of the issue it presents would have no practical effect upon the ultimate outcome of the appeal). We are not required to address points that are moot. Id.