author: WILLIAM RAY PRICE, JR., Judge.

text:
    STATE ex rel. Deborah HOWENSTINE, M.D., Relator, v. The Honorable Ellen S. ROPER, Respondent.
    No. SC 85998.
    Supreme Court of Missouri, En Banc.
    Feb. 15, 2005.

      Michael R. Tripp, John L. Roark, Columbia, for relator.
    Michael D. Strohbehn, Kansas City, for respondent.
   ORIGINAL PROCEEDING IN PROHIBITION

WILLIAM RAY PRICE, JR., Judge.

In the underlying medical malpractice case, Paul Muren claims that Dr. Debra Howenstine is responsible for negligent treatment he received from various nurses at a public health center. Dr. Howenstine moved for summary judgment on the bases of official immunity and public duty immunity. The trial court overruled Dr. Howenstine’s motion. This Court issued a preliminary writ, which is now made absolute.

I. Legal Standard for Writ

“Prohibition is particularly appropriate when the trial court, in a case where the facts are uncontested, wrongly decides a matter of law thereby depriving a party of an absolute defense.” State ex rel. Div. of Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612, 616 (Mo. banc 2002). “Forcing upon a defendant the expense and burdens of trial when the claim is clearly barred is unjust and should be prevented.” State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498, 500 (Mo.App.1985).

II. Background

A. Facts

Mr. Muren visited the City of Columbia/Boone County Health Department Clinic in April 2000. He was initially treated by four public health nurses and an advanced practice nurse. He tested positive for tuberculosis. The advanced practice nurse prescribed Isoniazid (INH) and he began the nine-month treatment. The treatment destroyed Mr. Muren’s fiver and he received a transplant in October 2000.

Dr. Howenstine was consulted and began treatment of Mr. Muren on September 19, 2000. There are no allegations that Dr. Howenstine negligently treated Mr. Muren herself, but instead Mr. Muren claims that she was responsible for the actions of the nurses at the clinic. In addition to her role as a consulting and treating physician at the clinic, Dr. Howenstine was the medical director for clinic. As medical director, she assisted in adopting protocols and participated in training, consulting and supervision at the clinic.

Mr. Muren brought suit against the nurses and Dr. Howenstine. He settled his claims against the nurses. Dr. Howen-stine’s liability is the only remaining issue. There is no genuine issue of material fact. There is no dispute that the clinic nurses provided negligent treatment to Mr. Mu-ren. The dispute is legal. Within the context of the delivery of population-based health services, is Dr. Howenstine immune from the suit?

B. Statutory and Regulatory Scheme

The Department of Health for the State of Missouri has the charge to “safeguard the health of the people in the state and all its subdivisions.” Sec. 192.020, RSMo. 2000. Part of this charge is carried out by local public health centers, which are intended to improve the health of all inhabitants of the county. Sec. 205.050; 19 C.S.R. 10-1.010(1), (4). These local centers are organized by collaborative practice arrangements, which “delegate to ... registered professional nurse[s] the authority to administer or dispense drugs and provide treatment ... [and to] prescribe drugs if the registered nurse is an advanced practice nurse.” Sees. 334.104(1), (2).

The state boards of nursing and of the healing arts promulgate the rules regarding collaborative practice arrangements. Sec. 334.104(3). The relevant rules are contained in 4 C.S.R. 200-4.200(1), (5).

Subdivision (5) of the regulation states: “(A) In ... public health clinics that provide population-based health services limited to ... tuberculosis control ..., the geographic areas, methods of treatment and review of services shall occur as set forth in the collaborative practice arrangement.” Id. at (5)(A). This is in contrast to “services ... including] diagnosis and initiation of treatment of disease or injury not related to population-based health services” when “the provisions of sections (2), (3), and (4) above shall apply.” Id. at (5)(A).

A collaborative practice arrangement is simply the operating agreement between physicians and nurses to provide treatment. Id. at (1)(B). There are several collaborative arrangements for various purposes at the Boone County clinic, but the one that specifically pertains to the delivery of population-based services is contained in the Columbia/Boone County Health Department Policies and Protocols Manual. It provides, “The Medical Director of Columbia/Boone County Health Department delegates ... to registered nurses ... the authority to deliver population based health care services, including ... tuberculosis control. Written protocols related to these services are reviewed and signed annually by the Medical Director and nursing staff.” Collaborative Practice Arrangement, Policies and Protocols 2001, Columbia/Boone County Health Department Manual 3.

III. Immunity

As medical director for the clinic, Dr. Howenstine relies upon two related, but different immunities — official immunity and public duty immunity. Both of these immunities have been discussed thoroughly by this Court.

“[0]fficial immunity shields officials from liability for injuries arising out of their discretionary acts or omissions. An official may be held liable for injuries arising out of ministerial acts.” Charron v. Thompson, 939 S.W.2d 885, 886 (Mo. banc 1996). Public duty immunity “holds that a public employee may not be held civilly liable for breach of a duty owed to the general public, as distinguished from a duty owed to particular individuals.” Green v. Denison, 738 S.W.2d 861, 866 (Mo. banc 1987). This immunity does not require that the individual be a public official. Brown v. Tate, 888 S.W.2d 413, 416 (Mo.App.1994).

IV. Official Immunity Analysis

Dr. Howenstine meets the test for official immunity. She is an official and was acting in her discretionary capacity.

A. Public Officer

A public office is the right, authority and duty, created and conferred by law, by which ... an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.

State ex rel. Pickett v. Truman, 333 Mo. 1018, 64 S.W.2d 105, 106 (1933). “Whether or not a public employee is a public officer is dependent upon the legal and factual circumstances involved.” State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761, 764 (Mo.App.1981). This immunity protects “those individuals who, in the face of imperfect information and limited resources, must daily exercise their best judgment in conducting the public’s business.” Kanagawa v. State, 685 S.W.2d 831, 836 (Mo. banc 1985).

Dr. Howenstine’s position as medical director existed to discharge the city, county and state obligations to improve the health of the public. The health department was delegated this authority by law. Sec. 205.050; 19 C.S.R. 10-1.010(4). Her particular office was created by agreement between the City of Columbia and the University of Missouri, in part, to maintain collaborative practice arrangements, adopt protocols and standing orders for the nurses to follow and provide consultation to nurses and patients at the clinic. The fact that Dr. Howenstine.is an employee of the University of Missouri and that she serves as the medical director of the health department pursuant to an agreement between the City of Columbia and the university is not consequential to the determination. Dr. Howenstine was a public official for purposes of this lawsuit.

B. Discretionary Function

“Whether a function is discretionary or ministerial is a case by case determination to be made after weighing such factors as the nature of the official’s duties, the extent to which the acts involve policy-making or the exercise of professional expertise and judgment.” Charron v. Thompson, 939 S.W.2d 885, 886 (Mo. banc 1996).

The duties exercised by Dr. Howenstine as medical director of the health department are primarily discretionary. Mr. Muren, however, raises a number of arguments why Dr. Howenstine should not be allowed immunity on this basis. This opinion will address Mr. Muren’s arguments in relation to the claims he raised in his petition.

l.

The first group of Mr. Muren’s claims involves a determination of whether Dr. Howenstine, as a treating physician, can be vicariously liable for the nurses’ actions. Mr. Muren first alleges that Dr. Howenstine “failed to properly train and supervise the nurses and nurse practitioners at the Health Department clinic to follow the established policies, procedures and protocols in providing health care to [him], including prescribing and dispensing the medication INH to [him] and monitoring his reaction to the medication[.]” He also claims that she “failed to conduct adequate history and physical examination on [him]; and failed to provided necessary medical direction, services, consultation and supervision of the nurses who provided services to [him.]” Further, Mr. Muren claims that Dr. Howenstine “failed to provide adequate patient education to [him] regarding risks, benefits, contraindications, adverse effects of the mediation INH ... and the need for monitoring.”

Essentially, Mr. Muren argues that Dr. Howenstine’s acts were not discretionary because they arose from her acts as a treating physician. In Eli Lilly v. Gaertner, a group of doctors working at a state institution was sued in malpractice for prescribing a drug that harmed the defendant. 619 S.W.2d 761, 762-64 (Mo.App.1981). The court held that the “doctors [were] being sued as treating physicians, not as titular heads of any department ... not ... for an erroneous decision requiring the exercise of governmental judgment and discretion but for an allegedly erroneous medical decision....” Id. at 765. Because Dr. Howenstine is not being sued for any neglect on her part in personally providing treatment, this exception does not strictly apply.

Mr. Muren, however, continues the argument by asserting that the nurses who actually provided the negligent care and failed to warn could only operate under the umbrella of Dr. Howenstine’s medical license. As such, they should be treated as an extension of Dr. Howenstine for which she can be held vicariously liable.

The Nursing Practice Act of 1975 expanded the scope of nursing in Missouri. Sec. 335.016(10); Sermchief v. Gonzales, 660 S.W.2d 683, 689 (Mo. banc 1983). In Sermchief, this Court extensively discussed the 1975 changes in the nursing statute. Id. It focused on the elimination of the requirement that a physician directly oversee nursing functions. Id. The nurses in that clinic took histories, made breast and pelvic examinations, dispensed designated medications and diagnosed the existence or nonexistence of contraindications to the use of contraceptives pursuant to written physician protocols and orders. Id. at 684-86. In Sermchief, this Court held: “There can be no question that a nurse undertakes only a nursing diagnosis, as opposed to a medical diagnosis, when she or he finds or fails to find symptoms described by physicians in standing orders and protocols for the purpose of administering courses of treatment prescribed by the physician in such orders and protocols.” Id. at 689-90. That is exactly how the clinic provides tuberculosis treatment at the clinic in this case.

The population-based services here were provided by nurses pursuant to written protocols and collaborative practice arrangements authorized by the state. Sec. 205.050; Sermchief, 660 S.W.2d at 689; 19 C.S.R. 10-1.010(4). The treatment provided by the nurses to Mr. Muren was under independent statutory authority, not under Dr. Howenstine’s medical license. Sec. 205.050; Sermchief, 660 S.W.2d at 689; 19 C.S.R. 10-1.010(4). The exception discussed in Eli Lilly does not apply. 619 S.W.2d at 765.

2.

The next group of claims assert that Dr. Howenstine had a duty to ensure the competency of the nurses at the clinic. Mr. Muren claims that Dr. Howenstine “failed to ensure that the delegated responsibilities set forth in a collaborative practice arrangement with [the] nurse practitioners ... were consistent with the level of skill, education, training and competence of [the] nurse practitioners and nurses[.]” Mr. Muren also asserts that Dr. Howenstine “failed to ensure that nurses and nurse practitioners followed guidelines for consulting her or another physician and referring plaintiff Paul Mu-ren to her or another physician for personal medical evaluation!.]” He essentially claims that Dr. Howenstine had an additional duty to ensure the competence of the nurses at the clinic. He cites 4 C.S.R. 200-4.200(3)(A), (B), and (I) as the source of this duty.

4 C.S.R. 200-4.200 has five subsections and sets out many of the general rules governing collaborative practice arrangements in Missouri. Section 1 sets out definitions, section 2 provides geographic rules, section 3 gives rules for treatment methods, section 4 gives physician oversight rules and section 5 is entitled “Population-Based Public Health Services.” Section 5 specifically exempts tuberculosis treatment as a population-based service from all of the rules provided in sections 2, 3, and 4.

Dr. Howenstine had no duty to ensure the competency of the nurses in this clinic based on this regulation as those sections, and specifically section 3, do not apply to population-based services. To the extent that Dr. Howenstine had a duty beyond the regulation, it would have been discretionary in nature and subject to immunity.

3.

The final group of claims deals with Dr. Howenstine’s oversight of the population-based services provided at the clinic. Mr. Muren alleges that Dr. Howenstine “failed to properly and regularly review the work, records and practice of patient assessment, health care, treatment and medications delivered to [him] by nurses and the nurse practitioner pursuant to a collaborative practice agreement!.]” He also asserts that Dr. Howenstine “failed to be present and to participate in a review of [his] medical condition and the health care provided to him at the Health Department clinie[.]”

The oversight requirements of population-based services like tuberculosis are detailed in 4 C.S.R. 200-4.200(5). It states: “[In] public health clinics that provide population-based health services limited to ... tuberculosis control ... the geographic areas, methods of treatment and review of services shall occur as set forth in the collaborative practice arrangement.” Id. at (5)(A). Dr. Howenstine maintains many collaborative practice arrangements at the clinic. Although she maintains collaborative practice arrangements regarding primary care, which may contain duties particular to that practice, the arrangement governing population-based services is very specific to tuberculosis treatment and is silent concerning oversight of those services. Collaborative Practice Arrangement, Policies and Protocols 2001, Columbia/Boone County Health Department Manual 3. The arrangement leaves supervision of the tuberculosis services subject to Dr. Howenstine’s discretion. There was no specific duty created in the population-based services collaborative arrangement for Dr. Howenstine to oversee the population-based services provided at the clinic.

Dr. Howenstine is immune as an official from all of the claims discussed previously. Her involvement at the clinic was to exercise her discretion in acting on behalf of the government in best discharging its duty to deliver population-based services according to her professional judgment.

Y. Public Duty Immunity Analysis

Dr. Howenstine has also met the requirements for public duty immunity. The test is simply a determination of whether the person owed a duty to the public or to a specific individual. Green v. Denison, 738 S.W.2d 861, 866 (Mo. banc 1987). The public duty doctrine shields employees from liability, but it also “shields public officers, and the governmental bodies that employ them, from liability.” Heins Implement Co. v. Mo. Highway & Transp. Comm’n, 859 S.W.2d 681, 694 (Mo. banc 1993).

The purpose of the health center is to minimize the effects and introduction of tuberculosis and other similar diseases into the community. Secs. 192.020, 205.050; see sec. 205.060. The clinic contractually assumed the state’s obligation to provide tuberculosis treatment. 19 C.S.R. 10-1.010(4). As medical director, Dr. Howen-stine implemented collaborative practice arrangements for delivery of tuberculosis and other population-based services. Her directorship duties are not particularized to any patient, but instead to the public. Prior to September 19, 2000, she owed no particularized duty to Mr. Muren. Her acts to improve the operations, treatment and training at the clinic were for the public at large and not specifically for Mr. Muren.

Dr. Howenstine did provide treatment to Mr. Muren on and after September 19, 2000. This treatment would not be subject to public duty immunity because it was particularized to Mr. Muren. However, no allegations of negligence were made regarding this treatment. Dr. Howenstine is immune from suit because her duties as medical director ran only to the public.

VI. Conclusion

Dr. Howenstine is immune from this suit as a matter of law by both official immunity and public duty immunity. The writ of prohibition is made absolute.

All concur.

      . All further statutory references are to RSMo 2000 unless otherwise indicated. Section 192.020.1 states: “It shall be the general duty and responsibility of the department of health and senior services to safeguard the health of the people in the state and all its subdivisions.”

      . "The public health center is established, maintained and operated for the improvement of health of all inhabitants of said county or counties.” Sec. 205.050.

      . The regulation provides, in pertinent part:
      (1) The Department of Health was created and established ... under the authority of Article IV, Section 12, of the Constitution. The department is charged with the responsibility for supervising and managing public health functions and programs....

      (4) The Division of Local Health and Institutional Services is responsible for the supervision of the department’s district offices which provide direct public health services .... The division's central and district offices provide nursing and other professional program consultation and assistance to city and county public health units which deliver the department’s health services to the public through contractual agreements.

      . Sections 334.104.1 and .2 provide in relevant part:
      1. A physician may enter into collaborative practice arrangements with registered professional nurses. Collaborative practice arrangements shall be in the form of written agreements, jointly agreed-upon protocols, or standing orders for the delivery of health care services. Collaborative practice arrangements, which shall be in writing, may delegate to a registered professional nurse the authority to administer or dispense drugs and provide treatment as long as the delivery of such health care services is within the scope of practice of the registered professional nurse and is consistent with that nurse's skill, training and competence.
      2. Collaborative practice arrangements, which shall be in writing, may delegate to a registered professional nurse the authority to administer, dispense or prescribe drugs and provide treatment if the registered professional nurse is an advanced practice nurse as defined in subdivision (2) of section 335.016, RSMo. Such collaborative practice arrangements shall be in the form of written agreements, jointly agreed-upon protocols or standing orders for the delivery of health care services.

      . "The state board of registration for the healing arts pursuant to section 334.125 and the board of nursing pursuant to section 335.036, RSMo, may jointly promulgate rules regulating the use of collaborative practice arrangements.” Sec. 334.104(3).

      . The regulation states:
      (1) For the purpose of these rules, the following definitions shall apply:
      (A) Advanced practice nurse-A registered professional nurse who is also an advanced practice nurse as defined in section 335.016(2), RSMo; '
      (B) Collaborative practice arrangements-Refers to written agreements, jointly agreed upon protocols, or standing orders, all of which shall be in writing, for the delivery of health care services; and
      (C) Registered professional nurse-A registered professional nurse as defined in section 335.016(9), RSMo, who is not an advanced practice nurse.
      (2) Geographic Areas.

      (3) Methods of Treatment.
      (A) The methods of treatment and the authority to administer, dispense, or prescribe drugs delegated in a collaborative practice arrangement between a collaborating physician and collaborating registered professional nurse or advanced practice nurse shall be within the scope of practice of each professional and shall be consistent with each professional's skill, training, education, and competence.
      (B) The collaborating physician shall consider the level of skill, education, training, and competence of the collaborating registered nurse or advanced practice nurse and ensure that the delegated responsibilities contained in the collaborative practice arrangement are consistent with that level of skill, education, training, and competence.

      (I) Methods of Treatment delegated and authority to administer, dispense, or prescribe drugs shall be subject to the following:
      1. The physician retains the responsibility for ensuring the appropriate administer-tag, dispensing, prescribing and control of drags utilized pursuant to a collaborative practice arrangement....
      (4) Review of Services.

      (5) Population-Based Public Health Services.
      (A) In the case of the collaborating physicians and collaborating registered professional nurses or advanced practice nurses practicing in association with public health clinics that provide population-based health services limited to ... tuberculosis control ... the geographic areas, methods of treatment and review of services shall occur as set forth in the collaborative practice arrangement. If the services provided in such settings include diagnosis and initiation of treatment of disease or injury not related to population-based health services, then the provisions of sections (2), (3), and (4) above shall apply, (emphasis added).

      . The local health department is headed by the director of public health, who works for the city manager and is appointed by the county commission. Sec. 205.100. The medical director for the health center, the position in question, works under the public health director, but her professional judgment is not supervised by the health director.

      . The text of this regulation is set out in notes 2 and 3.

      . This section has remained identical in language, but has been numbered differently since the Court discussed it in Sermchief. It states:
      (10) "Professional nursing”, the performance for compensation of any act which requires substantial specialized education, judgment and skill based on knowledge and application of principles derived from the biological, physical, social and nursing sciences, including, but not limited to:
      (a)Responsibility for the teaching of health care and the prevention of illness to the patient and his or her family;
      (b) Assessment, nursing diagnosis, nursing care, and counsel of persons who are ill, injured or experiencing alterations in normal health processes;
      (c) The administration of medications and treatments as prescribed by a person licensed by a state regulatory board to prescribe medications and treatments;
      (d) The coordination and assistance in the delivery of a plan of health care with all members of a health team;
      (e) The teaching and supervision of other persons in the performance of any of the foregoing;
      Sec. 335.016(10).

      . As set out in Section II of this opinion and note 6.

      . See note 6.

      . Collaborative Practice Arrangement
      The Medical Director of Columbia/Boone County Health Department delegates to Registered Professional Nurses employed by the Columbia/Boone County Health Department the authority to deliver population based health care services, including ... tuberculosis control.... Written protocols related to these services are reviewed and signed annually by the Medical Director and nursing staff.
      Collaborative Practice Arrangement, Policies and Protocols 2001, Columbia/Boone County Health Department Manual 3.


source: Caselaw Access Project

author: LAURA DENVTR STITH, Judge. WILLIAM RAY PRICE, JR., Judge,

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Brenda SELF, Appellant.
    No. SC 85662.
    Supreme Court of Missouri, En Banc.
    Feb. 15, 2005.

      Garrett C. Andersen, Caruthersville, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, Michael B. Hazel, Prosecuting Atty., Kimberley A. Davenport, Asst. Prosecuting Atty., Caruthersville, for Respondent.'
   LAURA DENVTR STITH, Judge.

Brenda Self was convicted of failing to cause her child to attend school “regularly” in violation of Missouri’s compulsory school attendance law. She appeals, alleging that the phrase “attend school regularly” as used in section 167.081.1 is unconstitutionally vague. While Ms. Self raises constitutional issues regarding the meaning of the phrase “attend school regularly” as used in the statute, this Court need not resolve those issues here, for her conviction must be reversed on other grounds. Where a statute does not itself set forth a culpable mental state, then under section 562.021.3 the State is required to establish that the person acted knowingly or purposely. Here, the State failed to establish that Ms. Self acted purposely or knowingly in failing to cause her child to attend school regularly. Therefore, it failed to prove an essential element of the crime. Double jeopardy precludes retrial when a conviction is reversed because the evidence was legally insufficient. This Court reverses and remands for entry of a judgment of acquittal.

1. FACTUAL AND PROCEDURAL BACKGROUND

During the almost six-month period from August 22, 2002 through February 6, 2003, Brenda Selfs fifteen-year-old child, Jennifer, missed approximately 40 days of school at the public school in which she was enrolled. On February 6, the school reported these absences to the Pemiscot County prosecuting attorney. On March 6, 2003, the prosecutor charged Ms. Self with the class C misdemeanor of failing to cause her child to attend school on a regular basis, in violation of section 167.031, and punishable under section 167.061. Ms. Self entered a plea of not guilty.

‘ Prior to trial, Ms. Self filed a motion to dismiss, alleging that section 167.031 was void for vagueness. The motion was overruled. Ms. Self agreed to waive her right to a jury trial in exchange for a recommendation that the court impose a sentence no greater than fifteen days in jail, execution of which would be suspended, and she would be placed on two years probation.

Ms. Self waived her right to a jury and a bench trial ensued. It was very short, comprising no more than 11 pages of transcript. The trial began with the prosecutor’s statement that the parties had reached an oral stipulation that he would recite during opening statement. In full, the prosecutor then stated as follows:

Jennifer Self is the daughter of Brenda Self, the Defendant in this matter. Brenda Self is charged with the care, custody and control of this child. Jennifer Self was born December 24, 1987, making Jennifer 14 and then 15 years old during the academic school year of 2002 and 2003.
This child, at those ages, is subject to the compulsory education laws. During this school year Jennifer Self was living in the home of Brenda Self. Also during this school year between the dates of August 22, 2002 and February 6, 2003, Jennifer Self missed 40 days of school.
The State will present evidence regarding these absences and policies and procedures which are in place with the Caruthersville Accelerated Middle School and how they deal with cases of excessive absences. Due to Mrs. Selfs failure to cause Jennifer to attend school on a regular basis, Jennifer Self had to attend summer school to advance to the next level.
At the close of the evidence, the State will ask. this Court to find the Defendant guilty and punish her accordingly.

Because no written copy of the stipulation was ever filed, it is not entirely clear which parts of the prosecutor’s opening statement are intended to be included in the stipulation. Of course, this was not a guilty plea; the parties could not have intended to stipulate to the prosecutor’s assertion of the ultimate issue whether Ms. Self had caused her daughter to fail to attend school regularly, or that the court should enter a judgment of guilty and punish her accordingly. Indeed, even where there is a guilty plea, the court has an independent duty to determine whether the defendant admits the facts essential to the judgment, and legal issues, such as what constitutes a failure to attend school regularly, are legal issues that this Court determines de novo on appeal; they are not matters for stipulation. This Court assumes as true for the purposes of this appeal only the facts stated by the prosecutor in his opening statement; it determines for itself the issues of law before the Court.

Ms. Selfs counsel offered no opening statement and presented only one piece of evidence, the Caruthersville Accelerated Middle School 2002-2003 Student/Parent Handbook, which describes the school’s policy regarding attendance. The State’s evidence was only slightly more lengthy. The prosecutor introduced Jennifer’s attendance record for the almost six-month period at issue and the testimony of Paula DeBoise, the school’s deputy juvenile officer, who had begun working at the school after the events in question but was able to identify the attendance record. Neither Ms. Self, Jennifer, nor the principal testified.

Based on the attendance record and the absence policy set out in the school’s handbook, the judge found Ms. Self guilty of one count of failure to cause a child to attend school regularly and sentenced her, in accordance with the prosecutor’s recommendation, to 15 days in jail, suspended execution of the sentence, and placed her on two years probation. Ms. Self appeals. Because she challenges the constitutionality of a state statute, appeal is directly to this Court. Mo. Const. art. V, sec. 3.

II. VAGUENESS CHALLENGE

The sole point of error Ms. Self raises is that section 167.031.1 of Missouri’s compulsory school attendance law is unconstitutionally vague. It states in relevant part:

“A parent, guardian or other person in this state having charge, control, or custody of a child between the ages of seven and sixteen years of age shall cause the child to attend regularly some public, private, parochial, parish, home school or a combination of such schools not less than the entire term of the school which the child attends ...”

Sec. 167.031.1 (emphasis added).

Ms. Self alleges that because section 167.031 does not define what it is to “cause [a] child to attend regularly” some school or combination of schools, this phrase is unconstitutionally vague. In support, she argues that various school districts have interpreted the phrase in inconsistent ways, so that what is acceptable attendance in one district may be referred for prosecution in another district. The State also asks the Court to reach the constitutional issue, stating in oral argument before this Court that it believed that, as a result of the lack of definition of the phrase “attend regularly,” school districts could and do interpret this phrase in different ways. The State suggests that the legislature may have intended to give districts flexibility in defining what constitutes regular attendance in that district and that such flexibility is appropriate as circumstances may differ in different areas of the state. The State further argues that the statute makes it permissible for a district to consider even a single missed day as a failure to attend school regularly if this is appropriate in the circumstances.

A statute is unconstitutionally vague if it does not give a person of ordinary intelligence sufficient warning as to the prohibited behavior. Cocktail Fortune, Inc. v. Sup. of Liquor Control, 994 S.W.2d 955, 957 (Mo. banc 1999). The vagueness doctrine is designed to help protect against arbitrary and discriminatory application of laws. State v. Brown, 660 S.W.2d 694, 697 (Mo. banc 1983). When reviewing a vagueness challenge, “it is not necessary to determine if a situation could be imagined in which the language used might be vague or confusing; the language is to be treated by applying it to the facts at hand.” State v. Young, 695 S.W.2d 882, 884 (Mo. banc 1985). Accord Cocktail Fortune, 994 S.W.2d at 958-59. If a statute can be applied constitutionally to an individual, that person “will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” State v. Ellis, 853 S.W.2d 440, 446 (Mo.App. E.D.1993), quoting U.S. v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960).

These principles are particularly applicable here. If the record before this Court in fact showed that the statute was so indefinite and confusing that the various school districts in this State took contradictory positions as to the meaning of the statutory phrase “cause the child to attend [school] regularly,” and that it was being interpreted to make a parent criminally responsible simply upon a showing that the parent’s child had failed to attend school on a number of occasions that varied significantly in number from district to district, and further that this caused confusion and problems for the parties in the case then brought before the court, then serious constitutional questions about the statute would be presented. '

But, a constitutional controversy cannot be manufactured in the trial court or on appeal in order to obtain an advisory opinion. While it is evident that both parties wish this Court to address the vagueness issue, it is not this Court’s prerogative to offer advisory opinions on hypothetical issues that are not necessary to the resolution of the case before it. See, e.g., Ellis, 853 S.W.2d at 446; State ex inf. Danforth v. Cason, 507 S.W.2d 405, 418 (Mo. banc 1973); State ex rel. Missouri Pub. Serv. Co. v. Elliott, 434 S.W.2d 532, 536 (Mo. banc 1968); Harris v. Consolid. School Dist. No. 8 C, Dunklin County, 328 S.W.2d 646, 654 (Mo. banc 1959).

Here, while the parties on appeal assert that the statute is vague and has been inconsistently interpreted in the past, neither presented any evidence as to the practices of other districts or as to those districts’ interpretations of the phrase in question, or included such alleged practices in their oral stipulation. In the absence of record support for the allegations of the parties that different districts interpret the statute in different and inconsistent ways, it is inappropriate and premature for this Court to address the constitutional issue raised.

Ms. Self was not charged with failing to cause her child to attend school on one or even a small number of days of school; she was charged with failing to cause her child to attend school for 40 days over a six-month period. No evidence was offered that Ms. Self was unsure whether it would violate the statute to cause her daughter to miss 40 days of school, nor that other districts treated 40 absences in a different manner. Ms. Self cannot properly bring a vagueness challenge based on hypothetical arbitrary and discriminatory application as to others when she has provided no evidence that the statute is unconstitutionally vague when applied to her situation. See Cocktail Fortune, 994 S.W.2d at 958-59; Ellis, 853 S.W.2d at 446; Raines, 362 U.S. at 21, 80 S.Ct. 519.

III. FAILURE OF STATE TO PROVE VIOLATION WAS KNOWING

Although this Court declines to reach the constitutional vagueness challenge raised by Ms. Self, it reverses her conviction for the reason that the State failed to offer any evidence of mens rea, that is, that she acted knowingly or purposely in causing her child to fail to attend school regularly.

The State concedes that it did not specifically offer proof that her conduct was knowing or purposeful, but suggests that section 167.031 sets out a regulatory offense and may be violated without proof that the charged party knowingly or purposely violated the statute. It is, the State argues, a strict liability offense. Ms. Self noted in oral argument, and this Court agrees, that were this the case, then additional and serious constitutional questions would be raised. But, as was true in regard to the vagueness challenge, it is unnecessary to reach this issue, for the State is simply incorrect in arguing that section 167.061 provides for strict criminal liability for failure to comply with the compulsory attendance provisions of section 167.031.

While neither* section 167.031 nor section 167.061 expressly specify the mental state necessary for violation of the compulsory attendance law, it is well-set-tied that, where a specific mental state is not prescribed in a statute, “a culpable mental state is nonetheless required and is established if a person acts purposely or knowingly ...” Sec. 562.021.3; State v. Bratina, 73 S.W.3d 625, 628 (Mo. banc 2002). A culpable mental state will be imputed to each statutory element, unless its imputation would be inconsistent with the purpose of the statute or “lead to an absurd or unjust result.” Sec. 562.026.2. Legislative intent not to require a culpable mental state for each element of the crime must be clearly apparent before a particular statute will be construed not to require proof of such culpability. See Id.; State v. Jones, 865 S.W.2d 658, 661 (Mo. banc 1993).

Here, nothing in section 167.031 suggests that the legislature did not intend to require proof of a culpable mental state in causing non-attendance, specifically, proof that the parent acted knowingly or purposely. To the contrary, the necessity of proof of some level of scienter is implicit in the requirement that the parent “cause” their child to regularly attend school. To “cause” a child to do something implies an affirmative act on the part of the parent and requires that criminal responsibility for failure to comply with the statute be based on a failure to cause the child to attend, not merely on a lack of attendance per se. Cf. In Re Monnig, 638 S.W.2d 782, 788 (Mo.App. W.D.1982) (holding burden of proof must be on prosecution to prove that particular home school curriculum was not adequate, to avoid exposing parents “to the risk of criminal prosecution should their suppositions of the adequacy of the home curriculum be mistaken, however in good faith,” thus indicating mental state is relevant to guilt) (emphasis added).

The burden was on the State to prove that Ms. Self acted knowingly or purposely in causing her child not to attend school regularly. See State v. Erwin, 848 S.W.2d 476, 482 (Mo. banc 1993). The State acknowledges that it did not specifically submit evidence as to her culpable mental state, but suggested at oral argument that because this issue was not contested below, this Court should treat the issue as conceded or should remand to allow evidence to be offered on this issue.

While the sufficiency of the evidence on this issue was not properly preserved below, Ms. Self did assert below that the information failed to charge all the elements of the offense and did-ultimately assert at oral argument in this Court that proof of mens rea was insufficient. In any event, it is always the State’s burden to establish a factual basis for elements of the crime charged. Cf. Rule 24.02(e); Hoskin v. State, 863 S.W.2d 637, 639 (Mo.App. E.D.1993) (where a criminal defendant enters a guilty plea, the court is still required to establish a factual basis for the plea before judgment can be entered). “The Court may ‘not supply missing evidence, or give the [State] the benefit of unreasonable, speculative or forced inferences.’” State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). “If the evidence is insufficient to sustain a conviction, plain error affecting substantial rights is involved from which manifest injustice must have resulted.” State v. Withrow, 8 S.W.3d 75, 77 (Mo. banc 1999); Rule 30.20. See also State v. Smith, 33 S.W.3d 648, 652 (Mo.App. W.D.2000); State v. Rehberg, 919 S.W.2d 543, 551-52 (Mo.App. W.D.1995).

This Court therefore must determine whether there was sufficient evidence from which the fact-finder could reasonably have found Ms. Self guilty beyond a reasonable doubt, accepting as true all evidence and inferences tending to prove guilt and ignoring all contrary evidence and inferences. State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992).

While the record does show that many of Jennifer’s absences were excused based on notes indicating they were for doctor’s appointments, nothing in the record indicates that these notes were from her mother, and on the majority of occasions there is no reference to a note in the record. Neither does the record show that Ms. Self knew that the district would not consider doctor’s appointments and illness due to Jennifer’s pregnancy to be excused and so not a basis for prosecution for violation of the compulsory attendance law. Rather, there is evidence to the contrary.

The Caruthersville Accelerated Middle School’s Student/Parent Handbook sets out the school’s attendance policy. It states that students are allowed seven absences in a semester. If the student has 10 or more absences in a semester, then, “an attendance letter will be filed with the Prosecuting Attorney, Juvenile Authorities, Division of Family Services, and Board of Education.” Clearly, Jennifer was absent more than the permitted number of times during each semester. But, nothing shows that Ms. Self understood that an attendance letter meant that she was subject to criminal prosecution, nor is there any showing that she was aware of more than 10 absences per semester, much less that she caused them.

Further confusion arises as a result of other terms in the handbook. At one point the handbook provides that absences will be “excused” if they are due to student illness, doctor’s appointments, or pre-ar-ranged absences. This seems to conflict with the handbook’s statement at another point that the fact that absences are excused will not prevent the school from implementing “consequences”, including notification of authorities, if a student cu-mulates more than 10 excused and unexcused absences in a semester. The latter would indicate that no absences are “excused” in a true sense. At yet a third point, in seeming contradiction, the Handbook says that, “in the case of a prolonged illness or extended absence under a doctor’s care, the parent should notify the principal so that such circumstances can be reviewed.”

Read together, these statements suggest that the attendance policy will not apply where the school is satisfied that the lack of attendance is due to prolonged illness or extended absence from school. This is in accord with section 167.031 to the effect that:

A child who, to the satisfaction of the superintendent of public schools of the district in which he resides, or if there is no superintendent then the chief school officer, is determined to be mentally or physically incapacitated may be excused from attendance at school for the full time required, or any part thereof

Sec. 167.031.1(1) (emphasis added). In such cases, there is no violation of the compulsory school attendance law.

Here, while Jennifer had missed 40 days of school over two semesters, all but 17 of those absences were noted on her record to have resulted from either illness or a doctor’s appointment. Many of the other absences are simply silent as to whether they are related to her medical condition. Further, Jennifer’s attendance record states below the list of absences, “Pregnant. Mr. McBride delivered homebound application. It has not been returned.”

These facts are sufficient to show that, to the satisfaction of the school authorities, Jennifer had been determined to be physically unable to attend school for the full time required and to have been given excused absences on those occasions on which she was ill or seeking medical care due to her pregnancy. No contrary evidence was presented that Ms. Self did know that, despite the excused nature of most of Jennifer’s absences due to physical incapacity caused by her pregnancy, her absences could put her in violation of the compulsory attendance laws, or that she otherwise caused the excessive absences.

In the absence of any proof on this issue, this Court cannot supply a forced inference that Ms. Self purposefully or knowingly failed to cause her child to attend school. See Whalen, 49 S.W.3d at 184. The double jeopardy clause precludes remand for a second trial when a conviction is reversed because the evidence introduced at the first trial was legally insufficient. Burks v. U.S., 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Furne, 642 S.W.2d 614, 617 (Mo. banc 1982); State v. O’Brien, 857 S.W.2d 212, 221 (Mo. banc 1993). As the State failed to prove an essential element of the charged offense, Ms. Selfs conviction is based on insufficient evidence and must be reversed.

For the reasons set out above, the judgment is reversed and the cause remanded for entry of a judgment of acquittal.

WHITE, C.J., WOLFF, and TEITELMAN, JJ., and CALLAHAN, Sp.J., concur; PRICE, J., concurs in part and dissents in part in separate opinion filed; LIMBAUGH, J., concurs in opinion of PRICE, J.

RUSSELL, J., not participating.

WILLIAM RAY PRICE, JR., Judge,

concurring in part and dissenting in part.

I.

I concur in part and dissent in part from the -principal opinion. I agree that the statute is not unconstitutionally vague when applied to Ms. Self. See Cocktail Fortune, Inc. v. Sup. of Liquor Control, 994 S.W.2d 955, 958-59 (Mo. banc 1999); State v. Mahan, 971 S.W.2d 307, 312 (Mo. banc 1998). I also agree -with the majority opinion that when a statute does not provide a culpable mental state, under section 562.021.3, RSMo 2000, the state must establish knowing or purposeful conduct.

I respectfully dissent from the majority opinion that there was insufficient evidence for an inference of such a mental state. Ms. Self waived her right to a jury trial. On appeal, the trial court’s “findings shall have the force and effect of the verdict of a jury.” Rule 27.01. This Court “will affirm the trial court’s judgment if there is substantial evidence to support its findings.” State v. Shaw, 847 S.W.2d 768, 779 (1993). The statute requires that “A parent ... shall cause the child to attend regularly....” Sec. 167.031.1, RSMo 2000. In this case, Ms. Selfs daughter missed 23 days, which were excused by the school. She also missed another 17 days that were not. The parties stipulated to this and a jury trial was waived in exchange for a lighter sentence. The circuit court accepted the stipulation of facts. Evidence was presented from the school that Ms. Self had notice of the absences. The judge found her guilty of one count of failure to cause a child to attend school. This Court has an obligation to affirm the circuit court, even where the results may seem harsh, where there is substantial evidence to support its judgment.

      . All statutory citations are to RSMo 2000, unless' otherwise indicated. Section 167.031 was recently amended by S.B. 968 2004, effective August 28, 2004, to allow metropolitan school districts to increase the maximum age that children can be required to attend school to 17 years.

      . Jennifer Self turned fifteen in December of 2002.

      . Gershman Inv. Corp. v. Danforth, 517 S.W.2d 33, 35 (Mo. banc 1974) (the attorney general, as a member of the executive branch, has no judicial authority and may not declare the law; only courts have the authority to determine issues of law); Morris v. State, 482 S.W.2d 459, 460 (Mo.1972) (appellate court held that trial court's finding that guilty plea was understandingly made was erroneous when the trial court failed to determine what facts were admitted and whether those facts would result in defendant being guilty of charged offense); Obermeyer v. Bank of America, 140 S.W.3d 18, 22 (Mo. banc 2004) ("The reviewing court defers to the trial court's factual findings and credibility determinations, but examines questions of law de novo.”).

      . However, if a statute prescribes a culpable mental state to a particular element of a crime, then the prescribed culpable mental state is applicable only to the defined elements and not to any other element of such crime. Sec. 562.021.2.

      . This Court notes that issues relating to the constitutionality of statutes are better determined on a complete record, and that a record will seldom be sufficient to allow the Court to address such a fundamental issue when the case was effectively tried, as was this one, as a "test case" with only token adversary positions taken by the parties.


author: PER CURIAM.

text:
    Svetlana KRAVTCHOUK, Appellant, v. Igor KRAVTCHOUK, Respondent/Cross-Appellant.
    No. ED 82610.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 19, 2004.
    Motion for Rehearing and/or Transfer Denied Jan. 26, 2005.
    Theodore S. Schechter, Jeffrey Steven Schechter, co-counsel, Clayton, MO, for appellant.
    James Patrick Carmody, Allan H. Zer-man, co-counsel, Clayton, MO, for respondent.
    Before GARY M. GAERTNER, P.J., SHERRI B. SULLIVAN, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Svetlana Kravtchouk (Wife) appeals from the trial court’s judgment (1) modifying the terms of maintenance and child support contained in the Judgment and Decree of Dissolution (Decree) dissolving the marriage of Wife and Igor Kravtchouk (Husband), and (2) denying Wife’s Motion to Dismiss. Husband cross-appeals. We have reviewed the briefs of the parties and the record on appeal and conclude that the judgment is supported by substantial evidence and the trial court did not abuse its discretion in its modification of the parties’ dissolution decree. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 84.1625(b).


text:
    J. NUCKOLLS, INC., d/b/a Fenton Auto Sales, Plaintiff/Appellant, v. AVIS RENT-A-CAR SYSTEM, INC., and American International Recovery, Inc., and Copart Auto Salvage, Defendants/Respondents.
    No. ED 84662.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 26, 2004.
    Application for Transfer to Supreme Court Denied Jan. 5, 2005.
    Albert S. Watkins, St. Louis, MO, for appellant.

      Jay Summerville, St. Louis, MO, David G. Januszewski, New York, NY, Sherry Doctorian, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J.,- and MARY K. HOFF, J. ■
   ORDER

PER CURIAM.

J. Nuckolls, Inc., d/b/a Fenton Auto Sales (“Buyer”) appeals the judgment of the trial court, granting summary judgment to Avis RenL-A-Car System, Inc. (“Seller”), American International Recovery, Inc. (“Facilitator”), and Copart Auto Salvage (“Auction Company”) (collectively “Defendants”). We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    John AMPLEMAN, Plaintiff-Appellant, v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant-Respondent.
    No. ED 84610.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 2, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 5, 2005.
    John E. Ampleman, Chesterfield, pro se.
    Alison Durphy, St. Louis, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The plaintiff, John Ampleman, appeals from the judgment granting the defendant’s motion to dismiss the plaintiffs action for breach of contract and vexatious refusal to pay a claim. No error of law appears and a written opinion would have no precedential value. The parties have been provided with a memorandum for their information only setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


text:
    Buford T. MAHONE, Appellant, v. CITY OF ST. LOUIS and Division of Employment Security, Respondents.
    No. ED 84265.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 9, 2004.
    Rehearing Denied Jan. 5, 2005.

      Buford T. Mahone, St. Louis, MO, pro se.
    Cynthia Quetsch, Jefferson City, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Buford T. Mahone (Claimant) appeals from the final order of the Labor and Industrial Relations Commission (Commission) on his claim for unemployment benefits. The Commission affirmed the decision of the Appeals Tribunal of the Division of Employment Security finding Claimant left work voluntarily without good cause attributable to his work or employer and denying unemployment benefits pursuant to Section 288.050, RSMo 2000. Claimant appeals contending the Commission erred in finding he left work voluntarily without good cause attributable to his work or employer because the evidence showed that he did not voluntarily leave work with his employer and that the illness Claimant suffered from at the time of his termination was attributable to his work or employer.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Eric PIGGEE, Appellant.
    No. ED 83630.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 9, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 5, 2005.
    S. Kristina Starke, District Defender, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixón, Atty. Gen., Andrea Kay Spillars, Leslie E. McNamara, Assistant Attorneys General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Eric Piggee (“Defendant”), appeals from the judgment of the Circuit Court of the City of St. Louis convicting him of two counts of possession of a controlled substance, section 195.202 RSMo 2000, after a jury trial. Defendant was sentenced pursuant to section 559.115.2 to concurrent terms of five years imprisonment on each count. These sentences were also to run concurrently with the sentence imposed under cause number 031-20. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 30.25(b).

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


text:
    Lonnie SNELLING, Appellant, v. Larry T. McFADDEN, Eufabya McFadden, Bernice Evans, and Albert Johnson, Respondents.
    No. ED 84725.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 23, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 26, 2005.
    Lonnie Snelling, St. Louis, MO, pro se.
    Craig S. Redler, St. Louis, MO, for Johnson & Evans.
    Armstrong Teasdale LLP, Patrick J. Kenny, Jonathan D. Valentino, St. Louis, MO, for Larry T. and Eufabya McFadden.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Lonnie Snelling appeals from orders of the trial court granting defendants Larry T. and Eufabya McFadden’s, Bernice Evans’, and Albert Johnson’s motions to set aside default judgments entered against them and in favor of Snelling.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The trial court did not abuse its discretion in granting the motions. Hinton v. Proctor & Schwartz, Inc., 99 S.W.3d 454, 458 (Mo.App. E.D.2003) (standard of review). No precedential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. We affirm the judgment pursuant to Rule 84.16(b).

      . Evans is the guardian for minor Johnson.


text:
    Myron SUTTON, Appellant, v. TREASURER OF THE STATE of Missouri as Custodian of the Second Injury Fund, Respondent.
    No. ED 84659.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.

      Matthew J. Padberg, St. Louis, MO, for appellant.
    Rachel E. Paul, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Myron Sutton (“Employee”) appeals the Labor and Industrial Relations Commission’s (“the Commission”) decision finding him permanently and partially disabled, not permanently and totally disabled. Employee argues the Commission erred in finding him permanently and partially disabled because: (1) the credible evidence demonstrated he was unemployable in the open labor market due to his work-related injury and pre-existing injuries; and (2) his pre-existing conditions before the work-related injury were disabling enough to combine with the work-related injury to cause permanent total disability.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The Commission’s decision is affirmed. No precedential or jurisprudential purposes would be served by an opinion restating the detailed facts and the principles of law. The parties have been furnished with a memorandum for their purposes only explaining the reasons for this order affirming the decision pursuant to Rule 84.16(b).


text:
    Douglas S. COCHRAN, Plaintiff/Appellant, v. Don A. CHERRY, d/b/a Manor Real Estate Company, Defendant/Respondent.
    No. ED 84698.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.
    Eric Carl Mueller, Frederick Michael Switzer Ill-Co-Counsel, St. Louis, MO, for appellant.
    Louis Glaser, St. Louis, MO, attorney for Don Cherry and Manor Real Estate Company
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Douglas S. Cochran (Appellant) appeals from the trial court’s summary judgment in favor of Don A. Cherry, d/b/a Manor Real Estate Company (Respondent). We have reviewed the briefs of the parties and the record on appeal and conclude that Respondent is entitled to judgment as a matter of law on Appellant’s claims against him. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for them use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    Tamara A. FLEIG and Terrill Smotherman, Plaintiffs/Appellants, v. Gregory M. BAUR, Jeanette R. Baur and New Era Bank, Defendants/Respondents.
    No. ED 84214.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 11, 2005.
    John W. Grimm, Limbaugh, Russell, Payne & Howard, Cape Girardeau, MO, for Appellant.
    William G. Reeves, Farmington, MO, attorney for separate New Era Bank.
    David L. Mayhugh, Park Hills, MO, attorney for Gregory and Jeanette Baur.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Tamara A. Fleig and Terrill Smother-man (Plaintiffs) appeal the trial court’s entry of judgment against them upon the granting of a motion for judgment made by Gregory M. Baur, Jeanette R. Baur, (the Baurs) and New Era Bank at the conclusion of Plaintiffs’ case in the non-jury trial of Plaintiffs’ action to set aside a deed between the Baurs and Donald Smotherman (Grantor) based on undue influence and mental incapacity.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. The judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum, for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Russell E. Vander MARTIN, Appellant.
    No. ED 83163.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.
    Kent Denzel, Columbia, MO, for appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Russell E. Vander Martin (“Defendant”) appeals from the trial court’s judgment entered upon his conviction by a jury of possession of a controlled substance pursuant to Section 195.202, RSMo 2000, and possession of drug paraphernalia with intent to distribute pursuant to Section 195.235, RSMo 2000. After a jury trial, Defendant, a persistent drug offender, was sentenced to twelve years imprisonment for possessing a controlled substance and four years imprisonment for possessing drug paraphernalia with intent to distribute, to be served concurrently.

Defendant raises three points on appeal. First, Defendant claims the trial court clearly erred in overruling his motion to suppress because he claims the arresting officer unreasonably prolonged the traffic stop beyond the time necessary to complete its lawful purpose. Second, Defendant claims the trial court erred in overruling his motion for judgment of acquittal at the close of the State’s evidence because there was insufficient evidence to convict him of possession of drug paraphernalia with intent to distribute. Finally, Defendant claims the trial court abused its discretion in allowing the arresting officer to testify regarding whether the amount of paraphernalia recovered was intended for distribution, as opposed to personal use.

We have reviewed the briefs of the parties, the legal file, and the transcript and no error of law appears and there was sufficient evidence to support the trial court’s judgment. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). An opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    James NIEDER, Respondent/Employee, v. R.J. RIPPER CONST. CO., INC., Safeco/American States Insurance Company, Appellant/Employer, and Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Respondent/Additional Party.
    No. ED 84378.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 11, 2005.
    William E. Paasch, Jr., Sunset Hills, MO, for Appellant.
    Ray B. Marglous, Clayton, MO, Carol Lea Barnard, Asst. Atty. Gen., St. Louis, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

R.J. Ripper Construction Company, Inc. (Employer) and Safeco/American States Insurance Company (Insurer) appeal from the decision and award of the Labor and Industrial Relations Commission (Commission) affirming the decision of the Administrative Law Judge (ALJ) that James Nieder (Claimant) was permanently and totally disabled from the primary injury alone and denying Second Injury Fund liability.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. After reviewing the whole record, we find the Commission’s award is supported by competent and substantial evidence and is not contrary the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. James J. CODY, Appellant.
    No. ED 83908.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.
    Lisa M. Stroup, St. Louis, MO, for Appellant.
    Deborah Daniels, Evan Joseph Buch-heim, Co-Counsel, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

James J. Cody (Appellant) appeals from the trial court’s judgment entered upon a jury verdict convicting Appellant of forcible rape, forcible sodomy, kidnapping, sexual abuse, attempted forcible rape, felonious restraint, and first-degree robbery. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not err or abuse its discretion, and its judgment was supported by sufficient evidence. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).


author: BOOKER T. SHAW, Judge.

text:
    Karel M. SAMMONS, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84438.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.

      Nancy A. McKerrow, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Jefferson City, MO, for respondent.
   OPINION

BOOKER T. SHAW, Judge.

Karel M. Sammons (“Movant”) appeals from the motion court’s judgment denying his post-conviction relief motion pursuant to Rule 29.15 after an evidentiary hearing. In his sole point on appeal, Movant contends the motion court clearly erred in failing to issue findings of fact and conclusions of law on his claim that his counsel was ineffective for failing to cross-examine Officer Michael Beilsmith about how he conducted the photographic line-up for the confidential informant. The State concedes error and asks this Court to remand this issue to the motion court for findings of fact and conclusions of law.

Movant was convicted of two counts of the Class B felony of delivery or sale of a controlled substance. Movant appealed from this judgment and this Court reversed his conviction for Count II, but affirmed his conviction for Count I. State v. Sammons, 93 S.W.3d 808, 812 (Mo.App. E.D.2002). The underlying facts of Mov-ant’s conviction are set forth in detail in that opinion. In summary, Movant sold crack cocaine to a confidential informant, who later identified Movant from a photographic line-up.

Movant filed a timely pro se motion for post-conviction relief under Rule 29.15. His counsel filed an amended motion in which Movant raised three claims. In claims one and two, Movant raised claims concerning the jury selection process in Marion County. In his third claim, Movant asserted his counsel was ineffective for failing to cross-examine Officer Michael Beilsmith about how he conducted the photographic line-up for the confidential informant. The motion court failed to address Movant’s third claim and Movant appeals.

Rule 29.15(j) provides that the motion court “shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” Findings and conclusions cannot be supplied by implication, but must be provided explicitly. Barry v. State, 850 S.W.2d 348, 350 (Mo. banc 1993). Findings and conclusions must be sufficient to permit meaningful appellate review. Crews v. State, 7 S.W.3d 563, 568 (Mo.App. E.D.1999). This Court has recognized five exceptions to Rule 29.15(j). Id. The exceptions are: (1) no finding of fact is necessary where the only issue is one of law; (2) no conclusion of law is necessary on an isolated issue where it is clear movant is entitled to no relief; (3) no findings or conclusions are necessary if the movant fails to present substantial evidence at an evidentiary hearing to support the allegation; (4) no findings or conclusions are required upon issues not properly raised or not cognizable in a post-conviction motion; and (5) no findings or conclusions are required where the motion itself is insufficient. Id.

Here, the motion court never mentioned Movant’s claim regarding his counsel’s failure to cross-examine about the photographic line-up. Movant offered evidence about this issue in his direct examination of his trial counsel at the evidentiary hearing. In addition, none of the exceptions outlined in Crews appear to apply to Mov-ant’s case. Without findings of fact and conclusions of law, there is nothing for this court to review. Therefore, the motion court did err in failing to provide findings of fact and conclusions of law on this issue. Point granted.

We reverse in part and remand to the motion court for findings of fact and conclusions of law in accordance with Rule 29.15(j) on Movant’s claim that his counsel was ineffective for faffing to cross-examine Officer Michael Beilsmith about how he conducted the photographic line-up for the confidential informant. The judgment of the motion court is affirmed in all other respects.

GARY M. GAERTNER, SR., P.J., and SHERRI B. SULLIVAN, J., Concur.


text:
    Andrew TUGGLE, Appellant, v. Katherine DEAN a/k/a Katherine Coleman and Anthony Bryant a/k/a Tony L. Bryant, Respondents.
    No. ED 84441.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.
    Adrienne L. Schaffer-James, St. Louis, MO, for appellant.
    Richard B. Dempsey, Jr., St. Louis, MO, for respondents.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Andrew Tuggle (“Tuggle”) appeals from the trial court’s judgment dismissing his petition in equity seeking the establishment of non-paternity of J.T., a minor child, as being barred by res judicata. In his one point on appeal, Tuggle argues the trial court erred in dismissing his petition because it was not barred by res judicata because the identity of the parties and the identity of the issues are different.

We have reviewed the briefs of the parties and the legal file. The trial court did not err in dismissing Tuggle’s petition. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84'.14(b).


text:
    Paul MAZZIE, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84095.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.
    Jo Ann Rotermund, Gwenda Robinson, co-counsel, St. Louis, MO, for Appellant.
    Deborah Daniels, Leslie McNamara, co-counsel, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Paul Mazzie (Movant) appeals from the judgment denying his motion for post-conviction relief under Rule 24.035 after an evidentiary hearing. Movant contends the motion court clearly erred in denying his claim that his plea was involuntary because he was under the mistaken impression he would be released át age seventy.

Having reviewed the briefs of the parties and the record on appeal, we conclude the motion court did not clearly err. Rule 24.035(k). An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . All rule references are to Mo. R.Crim. P.2004, unless otherwise indicated.


author: LAWRENCE G. CRAHAN, Judge.

text:
    Lazaros MAYRIDIS, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 84494.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 11, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Jefferson City, MO, for appellant.
    Mary L. Bruntrager, Charles H. Billings, St. Louis, MO, for respondent.
   LAWRENCE G. CRAHAN, Judge.

The Director of Revenue (“Director”) appeals the judgment setting aside the suspension of the driving privileges of La-zaros Mayridis (“Driver”). In the sole point on appeal, the Director argues that the trial court erred in setting aside the suspension of Driver’s driving privileges because the record was sufficient for the Director to establish a prima facie case under section 302.505. We reverse and remand.

In July 2003, Driver was involved in a single car accident where he was ejected from his vehicle when it swerved off of the interstate. Driver was arrested for driving while intoxicated, and he agreed to submit to a chemical test of his blood at a local hospital. Driver was issued a fifteen-day driving permit and eventually released.

The Department of Revenue issued a notice to Driver that his driving privileges were suspended pursuant to section 302.505. Driver then petitioned the circuit court for a trial de novo of the suspension of his license under section 302.535. The case was heard before a traffic commissioner of the circuit court. Director submitted the case on the record. The record included the arresting officer’s investigative reports of the accident, the Missouri Alcohol Influence Report, and the Blood Alcohol Analyst Report from the crime laboratory. The record showed that Driver had a blood alcohol content of 0.25 percent, which is over three times the legal limit of 0.08 percent.

Driver claimed that Director did not make a prima facie case for the suspension of his driving privileges in that Director failed to show that the blood collection and test methods were performed within the requirements of section 577.029 and 19 C.S.R. section 25-30.070. Driver did not present any evidence in his defense but made numerous objections to the elements of the record that Director offered in attempting to establish the prima facie case for revocation. Driver generally objected to the foundation for the blood test results offered by the Director. He specifically objected to the evidence in the record arguing that it failed to meet various foundational requirements of section 577.029 and the corresponding department of health regulations.

The trial court found that the arresting officer had probable cause to arrest Driver but found that there was insufficient credible and competent evidence that Driver’s blood alcohol concentration was 0.08 percent or more by weight. Specifically, the court held that the record before it did not meet the foundational requirements contained in the Code of State Regulations that are essential before blood alcohol test results can be admitted into evidence in that no evidence was presented to the court that a sufficient volume of blood was collected to provide for duplicate testing as required by 19 C.S.R. section 25-30.070. Thus, the circuit court reinstated Driver’s driving privileges and removed the administrative suspension of his license from his driving record.

Section 302.535.1 provides that a person aggrieved by a decision of the Department of Revenue may seek a trial de novo by the circuit court. At a trial de novo, the Director has the burden of proving a prima facie case for the suspension of a driver’s license by a preponderance of the evidence. Neeley v. Director of Revenue, 104 S.W.3d 797, 801 (Mo.App.2003). Section 302.535 creates a two-part burden on the State that is satisfied by a showing that (1) the authorities had probable cause to arrest the driver, and (2) the driver had been driving at a time when his or her blood alcohol concentration (“BAC”) was eight-hundredths of one percent (0.08%) or more by weight. Section 302.505 (RSMo Supp 2003).

The burden of proof is on the Director to establish grounds for the revocation or suspension of driving privileges by a preponderance of the evidence. Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). The Missouri Supreme Court has stated that the Director meets this burden by introducing the administrative record, and then it is the driver that has the burden to show the records are untrue or legally insufficient to support the suspension. See Kinzenbaw v. Director of Revenue, 62 S.W.3d 49, 51 (Mo. banc 2001). When the director makes a prima facie case, a presumption that the driver was intoxicated is created, and the driver is entitled to rebut the case with evidence that his blood alcohol content did not exceed the legal limit at the time of the arrest. Clark v. Director of Revenue, 132 S.W.3d 272, 275 (Mo.App.2004).

In order to have a driver’s blood alcohol test results admitted into evidence as proof that the driver’s BAC was over the legal limit at the time of arrest, the Director must show that the blood test was administered in accordance with the foundational prerequisites of section 577.029 and the applicable department of health regulations found in 19 C.S.R. section 25-30.070. Neeley, 104 S.W.3d at 801. It has been held that there should be absolute and literal compliance with the technical requirements of section 577.029. See id. The trial court, in its judgment, stated that the record contained insufficient competent, credible evidence of the foundational requirements of the applicable regulations, noting that the Director did not present any evidence that a sufficient amount of blood was collected for duplicative testing as mandated by 19 C.S.R. section 25-30.070(3).

Although Driver made several foundational objections based on various requirements of 19 C.S.R. section 25-30.070, he did not specifically object to the admission of the blood test results on the basis that an insufficient volume of blood was. collected. The requirement of proof of compliance with the regulation only becomes an issue if a proper, timely objection is made to the admission of the blood alcohol analysis, and the objection must be sufficiently clear and definite so that a court will understand the reason and may properly rule on the objection and so that the opponent will have an opportunity to correct the error. Krieger v. Director of Revenue, 14 S.W.3d 697, 701-02 (Mo.App.2000) (noting that an objection must be made at the earliest opportunity after the objectionable character of the evidence becomes apparent) (citing Reed v. Director of Revenue, 834 S.W.2d 834, 836 (Mo.App.1992)). In addition, a broad objection encompassing a range of situations does not preserve the error. Id.

In Reed, supra, this Court held that the driver’s failure to specify the grounds of his objection was not a proper and timely objection to the admission of breath test results into evidence. 834 S.W.2d at 836. The court noted that absent a specific objection as to the only grounds upon which the driver was challenging the evidence, the failure by the Director to prove compliance with the regulatory requirements does not destroy the sufficiency of its case. Id. Also, in Clark, supra, the court of appeals held that since the driver objected to the chain of custody of the sample but did not object to the blood test results on the grounds that the sample was taken or the tests performed incorrectly, Driver waived any argument that the test was not performed according to the approved techniques of the health department. 132 S.W.3d at 277.

Here, Driver made several specific objections to the admission of the blood alcohol collection process and analysis but he never objected to the evidence on the basis that an insufficient volume of blood was collected. Any objection to the blood test results made by Driver was not sufficiently clear and definite in this regard; instead, the objections were broad or specific as to other foundational grounds. Assuming, arguendo, that proof that a sufficient volume of blood to permit retesting was drawn is a foundational requirement, absent a proper objection, any alleged deficiency in Director’s compliance with the alleged foundational requirement does not destroy the sufficiency of the case. See Krieger, 14 S.W.3d at 702. Accordingly, the argument that the Director failed to meet the alleged foundational requirement as to proof of the volume of blood drawn was not preserved for review.

While Driver is correct in stating that the issue of whether he specifically objected to the lack of proof of the volume of blood drawn is not dispositive if the trial court’s judgment can be supported on any other theory, we have reviewed the other theories advanced by Driver and find them without merit. An extended discussion of the objections specifically denied by the trial court or not ruled upon as a basis for upholding the judgment would serve no jurisprudential purpose. We deny these alternative arguments pursuant to Rule 84.16(b).

The certified records of the Department of Revenue, properly submitted, may prove the Director’s prima facie case on their own when not contradicted. See Clark, 132 S.W.3d at 276-77. We find that the Director met the burden of proving the prima facie case and establishing that Driver’s BAC exceeded the legal limit based on the record submitted. The court erred in denying admission of the test result into evidence. Thus, the uncontra-dicted evidence presented established that Driver’s BAC was 0.25 percent. Director carried her burden of proving a prima facie case for the revocation and Driver offered nothing in rebuttal. See Krieger, 14 S.W.3d at 702-03; Tidwell v. Director of Revenue, 931 S.W.2d 488, 492 (Mo.App.1996). Consequently, there was no evidence to support the trial court’s judgment and it was against the weight of the evidence.

The judgment of the trial court is reversed and remanded with directions to reinstate the suspension of Driver’s driving privileges.

LAWRENCE E. MOONEY, P.J., Concurs.

MARY K. HOFF, J. Concurs.

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

      . All references to 19 C.S.R. section 25-30.070 in the Code of State Regulations are to the regulation that became effective October 30, 2001.

      . Effective on September 29, 2001, the legal limit for blood alcohol concentration by weight was lowered from 0.10% to 0.08%.


text:
    Cynthia BAHR, Claimant/Appellant, v. INFERTILITY & GYNECOLOGIC MEDICINE, INC., Employer/Respondent, and Division of Employment Security, Respondent.
    No. ED 84140.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 11, 2005.
    Cynthia Lee Bahr, Arnold, MO, pro se.
    Susan E. Hamra, Tremayne, Lay, Bauer, Coleman & Grady, Chesterfield, MO, for respondent Infertility & Gynecological Medicine, Inc.
    Marilyn Green, Cynthia Quetsch, Jefferson City, MO, for respondent Div. of Employment Security.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   MEMORANDUM DECISION

PER CURIAM.

Claimant, Cynthia Bahr, appeals from the Order of the Labor and Industrial Relations Commission (“Commission”) affirming the Decision of the Appeals Tribunal denying unemployment benefits to claimant on the ground that she voluntarily separated from work with the employer, Infertility & Gynecologic Medicine, Inc., without good cause to terminate her employment.

The issue is whether claimant quit her employment with good cause attributable to the employer, pursuant to Section 288.050.1 RSMo (2000); Div. of Emp. Sec. v. Labor & Ind. Rel. Com’n, 625 S.W.2d 882, 884 (Mo.App. E.D.1981).

When an order of the Commission is appealed, appellate review is confined to questions of law. We may modify, reverse, remand for rehearing, or set aside an award only upon one or more of the following grounds: (1) that the commission acted without or in excess of its powers; (2) that the decision was procured by fraud; (3) that the facts found by the commission did not support the award; or, (4) that there was not sufficient competent evidence in the record to warrant the making of the award. Section 288.210 RSMo (Cum.Supp.2004). The Commission’s factual findings are conclusive, in the absence of fraud, if the findings are supported by competent and substantial evidence. Id. We defer to the Commission when it resolves issues concerning credibility and weight to be given to conflicting evidence. Mitchell v. Division of Employment Sec., 922 S.W.2d 425, 427 (Mo.App. S.D.1996). When an unemployment compensation appeal involves issues of law, we do not defer to the Commission. Yellow Freight System v. Thomas, 987 S.W.2d 1, 3 (Mo.App. W.D.1998).

The findings and conclusions of the Commission are supported by competent and substantial evidence on the whole record and no error of law appears. An extended opinion would have no prece-dential value.

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


text:
    STATE of Missouri ex. rel., DEPARTMENT OF REVENUE, Respondent, v. David B. WILBER, Appellant.
    No. ED 84091.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 18, 2005.
    David B. Wilber, Sunset Hills, MO, pro se.
    David P. Hart, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   PER CURIAM.

David Wilber appeals a judgment entered in favor of the Missouri Department of Revenue (“D.O.R.”) on the D.O.R.’s Petition for Delinquent Missouri Individual Income Tax. Because we find that Mr. Wilber has failed to comply with Rule 84.04 of the applicable rules, we dismiss.

Mr. Wilber filed a pro se appeal from the trial court’s judgment. It is well-settled that pro se appellants are held to the same standards as attorneys and must comply with Supreme Court Rules, including Rule 84.04, which sets out the requirements for appellate briefs. Davis v. Coleman, 93 S.W.3d 742 (Mo.App. E.D.2002). Failure to comply with the rules of appellate procedure constitutes grounds for dismissal of an appeal. Id. at 742-43.

Mr. Wilber’s brief fails to comply with Rule 84.04. Particularly, the statement of facts fails to set forth details relevant to the questions presented for determination. The points relied on do not state legal reasons for Mr. Wilber’s claim for reversible error much less explain why, in the context of the case, those legal reasons support the claim for reversible error. Moreover, the argument section fails to state a standard of review or other legal authority to support Mr. Wilber’s position. In short, Mr. Wilber’s brief preserves nothing for review. Davis, 93 S.W.3d at 742-43.

Appeal dismissed.


text:
    Robert MAIXNER, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84433.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 18, 2005.
    Michelle Murphy Rivera, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., & Daniel Neal McPherson, Jefferson City, MO, for respondent.

      Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, JR., J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Robert Maixner (Movant) appeals from the judgment denying his amended Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Movant contends the motion court erred in denying his motion because his counsel was ineffective in that he did not adequately investigate and coerced Movant into pleading guilty. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The judgment of the trial court is affirmed. Rule 84.16(b).


text:
    Michael BULLOCK, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84427.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 18, 2005.
    Gwenda R. Robinson, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Michael Bullock (“Movant”), appeals from the judgment of the circuit court denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. In his appeal, Movant contends that the trial court erred when it denied his Rule 24.035 motion without an eviden-tiary hearing because Movant pleaded facts which, if true, would warrant post-conviction relief. Movant suggests that the motion contained enough detail to give the motion court the “gist of [his] constitutional claim.”

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. Lyons v. State, 39 S.W.3d 32, 36 (Mo.banc 2001). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

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


text:
    Lena I. MALAWEY, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84680.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 18, 2005.
    Maleaner Harvey, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

Movant, Lena I. Malawey, appeals the motion court’s judgment denying her Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Movant pleaded guilty to one count of second-degree burglary, in violation of Section 569.170, RSMo.2000. Movant filed a pro se and then an amended Rule 24.035 motion to set aside her guilty plea. In her amended motion, Movant alleged: (1) that the plea court accepted her plea of guilty where there was no factual basis established at her guilty plea hearing to support her conviction of second-degree burglary; and (2) that her plea counsel was ineffective for advising her to enter a plea of guilty where there was no factual basis to establish the commission of the crime for which she was charged. The motion court found the record conclusively demonstrated that Movant was entitled to no relief.

We have reviewed the parties’ briefs and the record on appeal. Finding no clear error, we affirm. Rule 24.035(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for this order.

The judgment denying post-conviction relief is affirmed. Rule 84.16(b).


text:
    Frank HARTFIELD, Employee/Respondent, v. FERRO MAGNETICS/Virginia Surety c/o Cambridge Integrated Services, Employer/Insurer/Appellant, and Hussman/Indemnity Insurance Corporation of North America, Employer/Insurer/Respondent.
    No. ED 84708.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 18, 2005.
    Jeffrey M. Proske, St. Louis, MO, for appellant.

      Jeffrey P. Gault, Clayton, MO, Kenneth D. Alexander, St. Louis, MO, for respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Ferro Magnetics (Ferro) appeals from the award of the Labor and Industrial Relations Commission- (Commission) affirming the avyard of the Administrative Law Judge (ALJ) finding Frank Hart-field’s (Claimant) work at Ferro exposed him to carpal tunnel syndrome and was a substantial factor in his current need for treatment. The Commission also held that the three month exclusion of Section 287.067(7), RSMo 2000, did not apply to bar Ferro from liability. On appeal, Ferro argues the Commission erred (1) in ruling that Claimant sustained a new injury and that Ferro was a substantial factor in Claimant’s present need for surgery, (2) in ruling that Ferro was the last employer to expose Claimant to carpal tunnel syndrome and that the three month exception under Section 287.067(7) did not apply, (3) in ruling that Ferro failed to demonstrate that exposure at Hussman Corporation (Hussman) between July of 2001 and October of 2002 was a substantial contributing factor for Claimant’s new need for treatment, and (4) in failing to rule that a prior settlement between Claimant and Huss-man for permanent partial disability precluded the claim against Ferro. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to-Rule 84.16(b).

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