author: JEFFREY W. BATES, Chief Judge.

text:
    Dora COYNE, Claimant-Appellant, v. CARGILL, INC., Employer, and Division of Employment Security, Respondents.
    No. 26645.
    Missouri Court of Appeals, Southern District, Division II.
    July 27, 2005.

      Dora Coyne, Sikeston, MO, pro se.
    Ninion S. Riley, Jefferson City, MO, for Respondent, Division of Employment Security.
    Employer Cargill, Inc., Sikeston, MO, pro se.
    No brief filed by Respondent Cargill, Inc.
   JEFFREY W. BATES, Chief Judge.

Dora Coyne (“Coyne”) appeals from a decision of the Labor and Industrial Relations Commission (“Commission”) denying her claim for unemployment benefits pursuant to Missouri’s Employment Security Law, §§ 288.010-.500. The Commission decided Coyne was not entitled to such benefits because she left work voluntarily without good cause attributable to the work or to her employer. Coyne contends the Commission’s decision was not supported by the evidence. We affirm.

I. Standard of Review

Since sufficiency of the evidence is the only issue in this appeal, we look to art. V, § 18 of the Missouri Constitution and § 288.210 to determine the scope of our review of the Commission’s order. Article Y, § 18 directs us to determine whether the Commission’s decision is “supported by competent and substantial evidence upon the whole record.” CNW Foods, Inc. v. Davidson, 141 S.W.3d 100, 102 (Mo.App.2004). In addition, § 288.210 states, in pertinent part, that “[ujpon appeal no additional evidence shall be heard. The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive.... ” In determining whether the Commission’s order is supported by competent and substantial evidence, we must accord deference to the Commission’s determinations on matters of witness credibility and the resolution of conflicting evidence. Taylor v. Div. of Employment Sec., 153 S.W.3d 878, 881 (Mo.App.2005); CNW Foods, Inc., 141 S.W.3d at 102-03; Shelby v. Hayward Baker, Inc., 128 S.W.3d 164, 166 (Mo.App.2004).

II. Statement of Facts and Procedural History

Coyne worked for Cargill, Inc. (“Car-gill”) as a customer service representative from September 2, 2003 through May 25, 2004. Coyne was hired as a full-time employee at a wage of $10 per hour. Her work hours were 8:00 a.m. to 5:00 p.m. John Anderson (“Anderson”), Cargill’s sales manager, was Coyne’s supervisor. Anderson told Coyne when she was hired that her job would require some seasonal overtime, but it usually did not amount to a significant number of hours. Coyne acknowledged that some overtime should not be a problem, but she did ask that she not be required to travel because she had two small children.

In Coyne’s job as a customer service representative, she and the farm marketing employees dealt extensively with Car-gill’s farmer customers. In order to let Coyne meet personally with these customers and make her a more visible part of the team, she was asked on four or five occasions to go with the marketing employees to farm shows and dinners during the nine months she was employed by Cargill. All of these events would have required only local travel between 8:00 a.m. and 5:00 p.m. Coyne refused to work out of the office because she did not feel comfortable traveling alone with other people in their cars, particularly if they were men. Cargill accepted Coyne’s decision, and her job was not in jeopardy because of her refusal to attend these functions.

In 2004, Cargill hired J.R. Prince to work as a “cash rep.” This new position required Prince to travel locally and work with customers out of the office 80-90% of the time. His rate of pay was $20 per hour. Anderson did not even interview Coyne for the job because of the travel requirements. Coyne was upset that she was not hired to fill this new position because, for $20 per hour, she could have made arrangements to travel.

On May 9, 2004, Coyne had to work two hours on Mother’s Day, which was on a Sunday. This was the only time Coyne ever had to work overtime on a weekend, and it was necessitated by an abnormal situation in which Cargill was performing “a computer centralization.”

A few days later, Coyne had a meeting with Anderson. During that conversation, Coyne told Anderson that she couldn’t travel outside the office, work weekends or work after 5:00 p.m. She asked about working part time so she could take classes to train for another type of employment, but Anderson informed her that Cargill had no part-time jobs. Coyne then asked for a $5 per hour raise, which was well above the amount paid to other Car-gill customer service representatives. Anderson said he would speak with his supervisor about the issue. Coyne was willing to continue working for Cargill as a customer service representative if she got this raise.

Anderson spoke with his supervisor, Paul Sell, about Coyne’s request for more money. The request was denied. When Anderson told Coyne a few days later that she would not be getting a raise, she said she was going to quit her job on May 25, 2004. She intended to “better herself’ by going back to school to become trained as a stenographer or medical transcriptionist. May 25th was Coyne’s last day of work at Cargill.

On June 1, 2004, Coyne filed an initial claim for unemployment benefits. On June 7, 2004, Cargill filed a timely 'written protest asking that the claim be denied because Coyne quit her job. See § 288.070.1. A deputy determined that Coyne was disqualified from receiving unemployment benefits because she left work voluntarily without good cause attributable to her work or her employer.

Coyne appealed the deputy’s determination. During a hearing before an appeals referee, the evidence which we summarized above was adduced. The Appeals Tribunal found that Coyne quit her job at Cargill because: (1) she did not get a raise; and (2) on one occasion, she was asked to work two hours on a weekend. Coyne’s claim was denied because the Appeals Tribunal concluded that she voluntarily left work on May 25, 2004 without good cause attributable to the work or to the employer. On application for review, the decision of the Appeals Tribunal was unanimously affirmed and adopted by the Commission as its decision in this matter. This appeal followed.

III. Discussion and Decision

As a claimant seeking unemployment compensation, Coyne bore the burden of proving her eligibility for benefits. See O’Dell v. Div. of Employment Sec., 376 S.W.2d 137, 142 (Mo.1964); Tri-State Motor Transit Co. v. Indus. Comm’n Div. of Employment Sec., 509 S.W.2d 217, 220 (Mo.App.1974). The purpose of the Missouri Employment Security Law is to provide benefits to persons “unemployed through no fault of their own.” § 288.020.1; Aaron’s Automotive Products, Inc. v. Div. of Employment Sec., 926 S.W.2d 229, 231 (Mo.App.1996). Therefore, a claimant is disqualified from receiving benefits if he or she “has left work voluntarily without good cause attributable to such work or to the claimant’s employer-” § 288.050.1(1); Wimberly v. Labor and Indus. Relations Comm’n, 688 S.W.2d 344, 346 (Mo. banc 1985).

On appeal, Coyne argues there is no substantial evidence to support the Commission’s finding that she voluntarily separated from her employment with Car-gill because she was actually terminated from her employment. The Commission’s finding on the issue of whether an employee voluntarily left her employment or was discharged is a factual determination. Shelby v. Hayward Baker, Inc., 128 S.W.3d 164, 169 (Mo.App.2004); Quik ’N Tasty Foods, Inc. v. Div. of Employment Sec., 17 S.W.3d 620, 624 (Mo.App.2000). We will affirm the Commission’s factual determination that Coyne voluntarily left her employment with Cargill on May 25, 2004 if this finding is supported by competent and substantial evidence on the record as a whole. Sokol v. Labor and Indus. Relations Comm’n, 946 S.W.2d 20, 24 (Mo.App.1997).

On appeal, Coyne argues that she was actually terminated by Cargill for three different reasons. None of Coyne’s arguments have any merit.

First, Coyne argues that she was terminated because Anderson admitted Cargill could not further Coyne’s career if she did not travel. That statement is in the record, but Anderson was only referring to Cargill’s inability to promote Coyne to a better position within the company if she was unable to travel. Indeed, this was the reason Coyne was not even interviewed for the “cash rep” position. Coyne’s unwillingness to travel, however, had no effect on her ability to continue working as a customer service representative. Her first argument has no merit.

Second, Coyne claims she was terminated because her request to continue working for the company part time was denied. This argument fails because Cargill did not have any part-time jobs available, and a claimant’s actual or potential unavailability for full-time employment can be treated by the employer as a resignation. See Bergmann v. Labor and Indus. Relations Comm’n, 604 S.W.2d 811, 812 (Mo.App.1980) (where employee’s actions caused him to no longer be available for full-time employment with his current employer, he thereby brought about his own voluntary separation from work without good cause attributable to his work or to his employer).

Third, Coyne argues that she was terminated because she asked for a raise. This last argument is foreclosed by the Commission’s finding that Coyne “quit because she did not receive a raise.” This factual finding is supported by Anderson’s testimony during the hearing before the appeals referee:

Q. Did [Coyne] quit, was she discharged, or is there another word to describe the separation?
A. She quit.
Q. Did she tell somebody that she quit?
A. Told me.

This finding is likewise supported by Coyne’s own admissions during the hearing:

Q. You — if you got the raise you testified you were willing to stay. Is that accurate?
A. Yes.
Q. So does that mean that you’re willing to stay and somehow work around the extended hours or weekend requirements if you re getting ... enough money?
A. Yes, with sufficient notice.

Since the Commission’s factual finding that Coyne quit her job is supported by competent and substantial evidence upon the whole record and is not clearly against the overwhelming weight of the evidence, we are bound by this administrative determination. CNW Foods, Inc. v. Davidson, 141 S.W.3d 100, 102-03 (Mo.App.2004).

In conclusion, the Commission’s decision that Coyne was disqualified from receiving unemployment benefits by § 288.050.1(1) because she left work voluntarily without good cause attributable to her work or her employer is supported by competent and substantial evidence on the whole record and is not against the overwhelming weight of the evidence. Accordingly, the Commission’s decision is affirmed. See Shelby v. Hayward Baker, Inc., 128 S.W.3d 164, 171 (Mo.App.2004).

SHRUM and BARNEY, JJ., concurs.

      . All references to statutes are to RSMo (2000).

      . All references to constitutional provisions are to the Missouri Constitution of 1945.

      . During the hearing before the appeals referee, Anderson testified that "[t]here were two other times that — when she expressed interest in growing that I did explain to her that — that those would require trips to Minneapolis which she said that she could not — she could not do. And there — but there was [sic] no repercussions. That was fine. I mean we just — just couldn’t further her career if she wasn’t able to do that.”


source: Caselaw Access Project

author: PHILLIP R. GARRISON, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. David G. PHELPS, Defendant-Appellant.
    No. 26626.
    Missouri Court of Appeals, Southern District, Division Two.
    July 29, 2005.

      Nancy A. McKerrow, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen. and Karen L. Kramer, Assistant Attorney General, Jefferson City, for Respondent.
   PHILLIP R. GARRISON, Judge.

David G. Phelps (“Appellant”) was charged with the class B felony of assault in the first degree, pursuant to Section 565.050. After a trial by jury, he was convicted and sentenced to eight years imprisonment. We affirm the finding of guilt and sentence, but remand for a correction in the trial court’s “Sentence and Judgment.”

The facts of this case are not at issue on appeal and require only a brief recitation. On the late evening of January 9 and early morning of January 10, 2003, Steven Vig-nolo (“Vignolo”) was playing in a pool tournament at the Eagles’ Lodge in Nevada, Missouri. Appellant was on the opposing team at the tournament. At some point in the evening, Appellant made comments towards Vignolo and called him names. Vig-nolo told him that he did not want to talk to him, turned away, and Appellant punched him in the nose. Vignolo got up and went to the bathroom and tried to clean himself up while several people, including Appellant, went outside. Appellant then came back in and went to the bathroom with one of his teammates. Several people then heard noises coming from the bathroom, and a teammate of Vigno-lo’s, Thomas Easley (“Easley”) ran toward the bathroom and saw Appellant’s teammates holding the door closed. Easley then knocked these people away from the door and opened it to find blood all over the bathroom floor, Vignolo lying face down on the floor, and Appellant kicking on the back of Vignolo’s head. Easley and Appellant fought for a moment, and Appellant then left the lodge before the police arrived.

Vignolo was taken by an ambulance to the Nevada Regional Medical Center where he received treatment for a broken nose and a cut under his left eye. It was also suspected that he might have a brain injury because of his confused and combative behavior.

Appellant presents one point on appeal. He claims that the trial court plainly erred in admitting State’s Exhibits 2 and 3, which were photographs taken of the Eagles’ Lodge bathroom and of Vignolo at the hospital, because the photographs did not tend to prove any material issue and the prejudicial effect of the photographs outweighed their probative value. Appellant acknowledges that he is seeking plain error review as he failed to object to the admission of the photos at trial, though he raised the issue in his motion for new trial. The State contends that Appellant waived his right to plain error review.

We agree with the State that Appellant waived his right to plain error review. The transcript clearly indicates that when the State offered Exhibits 2 and 3, Appellant’s attorney’s reply was “No objection.” “When a party affirmatively states that it has no objection to evidence an opposing party is attempting to introduce, for instance, plain error review is unavailable.” State v. Mead, 105 S.W.3d 552, 556 (Mo.App. W.D.2003). Appellant contends that his attorney’s statement during trial was the product of negligence or inadvertence, which can be inferred from his counsel’s including it in his motion for new trial. He contends that we should not deny him plain error review “due to the ineffectiveness of counsel.” Appellant cites U.S. v. Yu-Leung, 51 F.3d 1116, 1122 (2nd Cir.1995), for the proposition that failure to object due to oversight by counsel does not waive plain error review. However, that case later states that if “the party consciously refrains from objecting as a tactical matter, then that action constitutes a true hvaiver,’ which will negate even plain error review.” Id. Furthermore, the court in Mead reviewed the decision in Yvr-Leung, and found that this decision comports with general principles and Missouri precedent. 105 S.W.3d at 555-556. We agree with the Mead court and hold that Appellant waived his right to plain error review. Appellant’s point is denied.

We note, however, that the trial court’s “Sentence and Judgment” states that Appellant was charged with and found guilty of the “Class B felony of Assault in the 2nd degree.” This appears to be in error, as the amended information states that he was charged with assault in the first degree, the verdict directing instruction submitted that offense to the jury, and the verdict form signed by the jury foreperson recited that he was found guilty of that offense. After sentencing, the trial court questioned Appellant regarding the representation by his attorney, and asked, “[Appellant], are you the same [Appellant] that had a trial on February 17th and 18th, 2004, on a Class B felony of assault in the first degree?” It appears to us that a clerical error was made on the “Sentence and Judgment.” We therefore remand to the trial court for it to correct the “Sentence and Judgment” to reflect the finding by the jury. See State v. Taylor, 123 S.W.3d 924, 931 (Mo.App. S.D.2004); Rule 29.12(c). The finding of guilt by the jury is in all other aspects affirmed.

BATES, C.J., and SHRUM, P.J., concur.

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

      . An exception to this rule, not applicable here, has been recognized where the appellant’s attorney stated “no objection” to the admission of certain evidence, but had filed a motion to suppress before trial, had renewed that motion prior to trial, and was granted a continuing objection to the admission of the evidence during trial. State v. Baker, 103 S.W.3d 711, 715 (Mo. banc 2003). The Missouri Supreme Court held that even though the appellant’s counsel affirmatively stated "no objection” to the admission of the evidence, the trial court and the State both understood that the appellant did not intend to repudiate his continuing objection and the objection was still valid. Id. at 716-717. There is nothing in the record to indicate that Appellant filed a motion to suppress or any other motion before trial to prevent the admission of the photos, nor is there any indication that he had a continuing objection to such evidence.

      . All rule references are to Missouri Rules of Criminal Procedure (2003) unless otherwise indicated.


text:
    Flennord SMITH, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64215.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.
    Jeannie Marie Willibey, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Mackelprang and Evan Buchheim, Office of Attorney General, Jefferson City, for Respondent.
    Before LISA WHITE HARDWICK, Presiding Judge, PATRICIA A. BRECKENRIDGE, Judge, and PAUL M. SPINDEN, Judge.
   ORDER

Flennord Smith appeals the circuit court’s judgment denying his Rule 29.15 motion for postconviction relief after an evidentiary hearing. We affirm. Rule 84.16(b).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Charles M. KING, Appellant.
    No. WD 64105.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.
    Craig A. Johnston, Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: SMART, P.J., HOLLIGER and HARDWICK, JJ.
   ORDER

PER CURIAM.

Charles King appeals from his conviction for second-degree drug trafficking, Section 195.223, RSMo 2000. He contends the trial court erred in admitting evidence obtained pursuant to an unlawful search of his vehicle. Upon review of the record, we find no error and affirm the judgment. We have provided the parties with a Memorandum explaining the reasons for our decision, because a published opinion would have no precedential value.

AFFIRMED. Rule 30.25(b).


text:
    Phillip Randall HAYES, Appellant, v. Gary B. KEMPKER, Respondent.
    No. WD 64683.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.
    Phillip R. Hayes, Cameron, pro se.
    Jeremiah W. (Jay) Nixon, Atty. General, Deborah Daniels and Lisa J. Berry-Tay-man, Office of Attorney General, Jefferson City, for Respondent.
    Before LISA WHITE HARDWICK, Presiding Judge, PATRICIA A. BRECKENRIDGE, Judge, and PAUL M. SPINDEN, Judge.
   ORDER

Phillip Randall Hayes appeals the circuit court’s granting summary judgment for Gary B. Kempker, the director of the Department of Corrections, in a declaratory judgment action in which Hayes sought jail-time credit under § 558.031, RSMo 2000. We affirm. Rule 84.16(b).


author: PER CURIAM:

text:
    Dameion E. CLEMONS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64361.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.
    Susan L. Hogan, Appellate Defender Kansas City, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM:

Dameion E. Clemons appeals the denial, without an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, ex rel., Jeremiah W. NIXON, Attorney General, State of Missouri, Respondent, v. William E. WALLS, Appellant.
    No. WD 64404.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.
    William E. Walls, Charleston, pro se.
    Paul Harper, Jefferson City, MO, for Respondent.
    Before SMART, P.J., HOLLIGER and HARDWICK, JJ.
   ORDER

PER CURIAM.

The State of Missouri obtained summary judgment on a claim against William Walls under the Missouri Incarceration Reimbursement Act (MIRA). Walls appeals, contending there are genuine issues of material fact that preclude summary judgment. He also raises a constitutional objection to the MIRA claim.

Upon review of the record, we find no error and affirm the judgment. The parties have been provided with a Memorandum explaining the reasons for our decision, because a published opinion would have no precedential value.

AFFIRMED. Rule 84.16(b).


author: JOHN E. PARRISH, Judge.

text:
    Kinya T. KERR, Movant-Appellant v. STATE of Missouri, Respondent.
    No. 26704.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 4, 2005.

      Mark A. Grothoff, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Asst. Atty. Gen., Jefferson City, for respondent.
   JOHN E. PARRISH, Judge.

Kinya Kerr (movant) was convicted, following a jury trial, of murder in the first degree, § 565.020, and armed criminal action, § 571.015. See State v. Kerr, 114 S.W.3d 459 (Mo.App.2003). Thereafter, movant filed a motion for post-conviction relief as permitted by Rule 29.15. Counsel was appointed and an amended motion filed. The motion was denied. Movant appeals contending he was denied effective assistance of appellate counsel in the direct appeal of his conviction. This court affirms.

Facts relating to the criminal offenses of which movant was convicted are set forth in this court's opinion in State v. Kerr, supra, the direct appeal of his criminal case. That opinion may be read in conjunction with this opinion for purposes of gleaning those facts.

The issues in this appeal relate to matters raised by movant’s trial counsel in his criminal case but not pursued on direct appeal. Movant raises two points that he contends his appellate counsel should have raised in his direct appeal. He argues that failure of appellate counsel to raise those issues deprived him of effective assistance of counsel.

There is a fine line between an attempt to use a post-conviction proceeding for a second appeal and presentation of legitimate issues properly reviewable by post-conviction motion. “A motion for post-conviction relief is not a substitute for matters that could have been raised on direct appeal.” Fisher v. State, 57 S.W.3d 329, 334 (Mo.App.2001). This court’s review of the issues movant now raises is limited to considering whether movant’s appellate counsel was ineffective in not raising those issues previously.

Point I is directed to the voir dire conducted in movant’s criminal case. The prosecuting attorney asked questions of the venire about their willingness to consider accomplice liability. His remarks included:

In [sic] there mil also be an instruction that talks to you about what is sometimes known as accomplice responsibility or responsibility of [sic] the conduct of another. I want to ask you if you could follow that instruction.
If the Judge tells you that a person is responsible for his own conduct and he is also responsible for the conduct of other persons if he acts together with those persons for the purpose of committing that crime then he is responsible also for what the other person did? Is there anyone who cannot accept and follow that instruction that talks to you about accomplice responsibility for the conduct of another?

The prosecuting attorney then began to give an example of acts he contended would result in one person being criminally liable for conduct of another. Movant’s tidal attorney objected to the prosecuting attorney “explaining instructions or giving examples,” saying, “He can read the instruction and ask that they can follow it but nothing more.” The trial court overruled the objection, after which the prosecutor continued:

The person who sits outside in the get away car if he does so knowingly and with the purpose to rob the bank is as guilty as the person who goes inside with the gun.
What I want to ask is [sic] each of you is, can [you] follow the Court’s instruction which tells you when we act together with someone we do it for the purpose of committing a crime we’re guilty along with that person and responsible for his or her conduct.

The prosecuting attorney then told the venire what he believed the evidence would be; that two other men were involved. He asked if the venirepersons “would ... make the State’s evidence prove that it was this man, [movant], who fired the single fatal shot or can you accept the fact that he may be responsible for the conduct of other people if he did that for the purpose of committing the crime?” He added, “Is there anyone here who would make me prove that the [movant] pulled the trigger and sent the fatal shot into the victim?”

The transcript from movant’s criminal trial reveals that several jurors responded that they could not find a person guilty of murder resulting from a gunshot unless that person was the one who fired the fatal shot. The prosecuting attorney inquired of them individually, after which he inquired if there were “[a]ny other answers on that question?” He observed:

All right. So those of you who did not answer that question, which I think I talked to five or six of you who did have a problem from that, from the silence of the others I take it that you could say that a person was guilty of murder in the first degree even though he or she did not physically do the killing, fire the shot that killed the person if you believe that he or she acted together with the person that did and that they did so for the purpose of committing that crime. Okay.

The prosecutor then inquired about other matters. No reference was made by either the prosecuting attorney or any member of the venire to the bank robbery example the prosecuting attorney had used to illustrate when a person would be criminally liable for another’s conduct.

In order to prove that he was deprived of the effective assistance of counsel on appeal [a defendant in a criminal case] must first show (1) that the actions of his appellate attorney were “outside the wide range of professionally competent assistance,” and (2) that his counsel’s errors were so severe that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (3) that counsel’s deficient performance resulted in prejudice. To support a claim of ineffectiveness regarding an attorney representing the defendant on direct appeal from his conviction, “strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized and asserted it.” [Footnotes omitted.]

Franklin v. State, 24 S.W.3d 686, 690-91 (Mo. banc), cert. denied, 531 U.S. 951, 121 S.Ct. 356, 148 L.Ed.2d 286 (2000). “The right to relief ... due to ineffective assistance of appellate counsel inevitably tracks the plain error rule; ie., the error that was not raised on appeal was so substantial as to amount to a manifest injustice or a miscarriage of justice.” Reuscher v. State, 887 S.W.2d 588, 591 (Mo. banc 1994), cert. denied, 514 U.S. 1119, 115 S.Ct. 1982, 131 L.Ed.2d 869 (1995). See also Moss v. State, 10 S.W.3d 508, 514-15 (Mo. banc 2000).

A review of the record in movant’s direct appeal and the record in this case does not convince this court that the trial court in movant’s criminal case erred in making the ruling about which movant now complains. Regardless, had the ruling been erroneous, which this court does not find, it would not have, under the facts in this case, produced a manifest injustice or miscarriage of justice.

The jury in movant’s criminal trial was properly instructed regarding responsibility for the conduct of another in accordance with MAI-CR3d 304.04. No allegation of error was made regarding that instruction on direct appeal, nor is it suggested in this appeal that the instruction was erroneous. “When a jury receives proper and adequate instructions, it is presumed the jury will properly follow the instructions as given.” State v. Payton, 895 S.W.2d 283, 285 (Mo.App.1995). See also State v. Preston, 673 S.W.2d 1, 7 (Mo. banc 1984). Point I is denied.

Point II is directed to appellate counsel in movant’s criminal case not pursuing the trial court’s rulings regarding the testimony of a witness. Movant contends he was denied effective assistance of appellate counsel in his direct appeal because his appellate counsel failed “to assert on direct appeal that the trial court had erred in overruling hearsay objections to testimony by Commander Jim Gaert-ner.”

James Gaertner is a Sedalia police officer who holds the rank of commander of the Criminal Investigations Bureau. During the course of his testimony, Commander Gaertner was questioned about what occurred during his interrogation of mov-ant. He testified that he told movant he knew the identities of the other two people who were involved in the shooting. Mov-ant’s trial counsel objected to the line of inquiry, stating that the line of questioning addressed what the witness knew about co-defendants in the case; that “[h]e ... couldn’t know who was involved in the case. He could have suspicions, but he couldn’t know.” Movant’s trial counsel continued, stating that he objected to the “whole line of questioning, it gets dangerously close to statements of the co-defendant.”

The prosecuting attorney responded that he was not asking the witness to tell what he knew, but was asking what he told movant in an effort to cause movant to admit his involvement. The trial judge, after being told how the prosecuting attorney wished to proceed, stated, “We’ll start that way,” after which movant’s trial counsel stated he still objected “for the record.”

The prosecuting attorney continued his inquiry by explaining to Commander Ga-ertner that what he was asking was what he told movant. He asked if Commander Gaertner told movant he believed movant was involved in the shooting and whether he told him the source of his knowledge. The officer answered that he did. Commander Gaertner said movant told him he would be truthful about what he did, but that movant did not state details about his actions. Movant argues that Commander Gaertner’s testimony “contained inadmissible and prejudicial hearsay, to which trial counsel properly objected.” The motion court concluded:

During the course of the interview with Movant ..., Commander Jim Ga-ertner briefly spoke with Movant. Cmdr. Gaertner confronted Movant with information he had learned from other suspects or witnesses. This testimony was not hearsay because it was not elicited for the truth of the matter asserted but to explain what was said during the interview and how Movant reacted to this information. Cmdr. Gaertner’s very brief mention of what he learned from other interviews was relevant and admissible for this purpose. Further, this brief discussion of statements made by codefendants, which was never argued or even mentioned to the jury during closing argument, was insignificant in light of the complete confession made by Movant.

“Hearsay evidence is testimony about a statement made by an out-of-court witness offered to show the truth of the matter asserted.” State v. Baker, 23 S.W.3d 702, 715 (Mo.App.2000). The motion court concluded that the testimony about which movant complained was not hearsay; that, therefore, appellate counsel in movant’s direct appeal was not ineffective in not pursuing that issue.

The trial court’s finding is not clearly erroneous. The witness at trial made no statement regarding what he had been told. Rather, he related that he told mov-ant the nature of the knowledge he had accumulated and the source of his information. The testimony of the officer explained the course he followed in his interrogation of movant. The testimony was not offered at the criminal trial for its truth; neither was it, as argued by mov-ant, testimony that invited the inference of hearsay as discussed in State v. Valentine, 587 S.W.2d 859 (Mo. banc 1979). Rather, as in State v. Baker, supra, at 716, Commander Gaertner’s testimony was an explanation of the course of his participation in the investigation. It was not hearsay. Point II is denied. The judgment is affirmed.

PREWITT, P.J., and RAHMEYER, J., concur.

      . References to statutes are to RSMo 2000.

        . State v. Seddens, 878 S.W.2d 89, 91-92 (Mo.App.1994), involved a similar situation to that in this case. No error was found in the direct appeal. This court discerns no circumstance in this case that warrants a different result.


author: JOHN E. PARRISH, Presiding Judge.

text:
    G & S MASONRY, INC., Plaintiff-Respondent v. MJC CONSTRUCTORS, INC., and Fidelity & Deposit Company of Maryland, Defendants-Appellants.
    No. 26462.
    Missouri Court of Appeals, Southern District, Division Two.
    Aug. 4, 2005.

      Richard R. Hardcastle, III, Scott A. Strange, Greensfelder, Hemker & Gale, P.C., St. Louis, for appellants.
    Thomas W. Millington, Millington, Glass & Love, Springfield, for respondent.
   JOHN E. PARRISH, Presiding Judge.

MJC Contractors, Inc., (MJC) requests this court to reverse the order of the trial court that denied a motion it filed requesting the trial court to stay litigation brought by G & S Masonry, Inc., (G <& S) and to compel arbitration. This court declines. The trial court’s order is affirmed.

This case was previously before this court. The case was remanded (1) to enable the trial court to rule, had it not done so previously, on a motion by G & S that sought leave to amend its petition and (2) to determine whether the amount in dispute was $50,000 or more. See G & S Masonry, Inc. v. MJC Constructors, Inc., 164 S.W.3d 530 (Mo.App.2005). That opinion may be read in conjunction with this opinion for the purpose of identifying the facts that led to this appeal.

Following remand, the trial court entered an order declaring that it had previously granted the motion G & S filed that sought to amend its petition; that G & S had been permitted to file an amended petition. The trial court found “that the amount presently in dispute in this case is $50,000 or more.”

The parties do not dispute that the subcontract that is the basis for this action provides that claims between the subcontractor, G & S, and the contractor, MJC, are subject to resolution by lawsuit unless “the amount in controversy is less than $50,000.00.” Thus, a valid agreement exists to arbitrate certain disputes between the parties to this appeal. However, because the amount in dispute does not fall within the parameters of the disputes that are subject to arbitration, i.e., the amount in controversy is not “less than $50,000.00,” the substance of the dispute is not the type of dispute that the agreement requires to be arbitrated. See Greenpoint Credit, L.L.C. v. Reynolds, 151 S.W.3d 868, 873 (Mo.App.2004).

The trial court denied MJC’s motion to stay the litigation and compel arbitration. Under the record before this court, there is no showing that there is an enforceable arbitration provision in the contract between G & S and MJC in that the amount in controversy has not been shown to be less than $50,000. The order denying the motion to stay the litigation and compel arbitration is denied.

BATES, C.J., and BARNEY, J., concur.


author: CHARLES D. SUSANO, JR., J.,

text:
    Matthew LAWSON, et al., v. EDGEWATER HOTELS, INC., et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Aug. 13, 2004 Session.
    Nov. 30, 2004.
    Permission to Appeal Denied by Supreme Court May 2, 2005.

      David A. Burkhalter, II, Knoxville, Tennessee, for the appellants, Matthew Lawson, by his mother and next friend, Shirley Lawson, and Shirley Lawson, individually.
    David E. Long and Joshua A. Wolfe, Knoxville, Tennessee, for the appellees, Edgewater Hotels, Inc., and Stokely Hospitality Properties, Inc.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which D. MICHAEL SWINEY, J„ and WILLIAM H. INMAN, Sr.J„ joined.

Matthew Lawson, by his mother and next friend, Shirley Lawson, and Ms. Lawson, individually (collectively “the plaintiffs”) brought an action for negligence against Edgewater Hotels, Inc., and Stokely Hospitality Properties, Inc. (collectively “the defendants”), alleging that Matthew sustained injuries as a consequence of swimming in the indoor pool at the defendants’ hotel. According to the plaintiffs, Matthew sustained these injuries (1) due to the excessive amount of chlorine in the pool water and/or (2) because the defendants failed to properly ventilate the indoor portion of the pool. The defendants moved for summary judgment. The trial court granted the motion as to both of the plaintiffs’ theories. The plaintiffs appeal. We affirm the trial court’s judgment with respect to the plaintiffs’ allegation that the defendants’ pool contained excessive levels of chlorine. However, we vacate the trial court’s judgment with respect to the allegation that the defendants’ indoor pool was not properly ventilated. We hold that the defendants failed to meet their burden on summary judgment with respect to this claim.

I.

On August 6, 1999, Shirley Lawson arrived at the Edgewater Hotel in Gatlin-burg for a vacation. She was accompanied by her sons, Matthew Lawson and Nicholas Lawson. The defendants owned the hotel. Ms. Lawson and her sons were scheduled to stay at the hotel through the morning of August 9, 1999. Her sisters, Melissa Deering and Deybra Munson, along with Ms. Deering’s son, Jason, were to meet them at the hotel for the weekend.

Ms. Lawson arrived at the hotel sometime between 10:00 a.m. and 11:00 a.m. on August 6, 1999. As it was too early to check in, Ms. Lawson secured the permission of the front desk clerk for her sons to play in the pool until their room was ready. The pool is built so that part of the pool is outdoors and part is indoors. The two sections of the pool are separated by a glass partition. One can move between the two parts of the pool by swimming under the partition. The enclosed portion of the pool also includes two hot tubs and a waterfall. The waterfall draws water from the bottom of the pool.

When the Lawsons and the Deerings entered the indoor pool enclosure on August 6, 1999, they noticed a very strong smell of chlorine. They observed that the air was thick, stuffy and humid, and that what they believed to be chlorine fumes would “sort of burn your eyes.” The glass doors and windows of the indoor enclosure were closed and had condensation on them. Ms. Lawson, Ms. Deering and their respective sons, Nicholas and Jason, spent the day at the outdoor portion of the pool. However, son Matthew swam in the indoor pool due to a skin condition that was aggravated by the sun. The airborne chlorine did not appear to bother Matthew’s eyes. It should be noted, however, that he was wearing goggles while in the pool. Although Ms. Lawson and Ms. Deering remained outdoors for most of the day, Ms. Lawson would periodically check on Matthew.

The group remained at the pool from about 10:00 a.m. or 11:00 a.m. until approximately 6:00 p.m. After they left the pool to get ready for dinner, Matthew started to complain that his throat and head were hurting. The other boys were also complaining of burning eyes; they were also coughing. About three or four hours earlier, Ms. Lawson had noticed that Matthew was coughing, but she thought it was because he had swallowed some water. Since he appeared to be having a good time, she did not remove him from the pool. The plaintiffs went to dinner with Melissa Deering and her son. Matthew continued to cough, laid his head down on the table, and was unable to eat.

That evening, Matthew’s symptoms worsened. He began to have difficulty breathing, experiencing chest pains and headaches, and gagging, although he never actually threw up. Ms. Lawson called Dr. Ellenburg, Matthew’s doctor. Matthew had a pre-existing asthmatic condition and allergies that Dr. Ellenburg had been treating for some time. Based on the symptoms described by Ms. Lawson, Dr. Ellenburg told her that he believed Matthew was suffering from chlorine poisoning. He provided instructions as to how to best care for the boy. Ms. Lawson was very concerned, but did not take Matthew to the hospital due to the high level of traffic that weekend. Ms. Deering, however, went down to the front desk and asked that the local EMS be put on standby in case they needed to get them there quickly. The front desk clerk allegedly informed her that an ambulance would be able to get to them and that EMS did not need to be put on standby.

The following morning, Matthew’s symptoms had improved but he had not fully recovered. The group went down to the outdoor pool so Nicholas and Jason could swim. Matthew attempted to go into the pool for a couple of minutes that afternoon, but was too tired and resumed sitting with his mother under the umbrella. Although the parties were scheduled to remain at the defendants’ hotel until Monday, August 9, 1999, the parties decided to leave on Sunday, August 8, 1999, out of concern for Matthew’s health. The hotel furnished a refund for Sunday night. When checking out, Ms. Lawson asked to speak to the manager on duty. According to Ms. Lawson, the manager on duty apologized and informed her that an employee had forgotten to turn on the ventilation system and open the windows. The manager also allegedly explained that the heated whirlpool vapors and mist from the waterfall caused chlorine to be airborne and become concentrated in the air.

On August 4, 2000, the plaintiffs filed this action against the defendants. In their complaint, the plaintiffs averred that “the pool in which they were swimming had excessive levels of chlorine, and the pool lacked proper ventilation,” and that these conditions arose from the defendants’ negligence. As a result, the plaintiffs alleged the following injuries: that Matthew “incurred serious, painful and permanent damage to his respiratory system”; that he “has been compelled to endure great pain, and has been required to seek medical assistance”; and that Ms. Lawson “has been deprived of the services of her son, and has been compelled to expend large sums of money for medical services.”

The defendants filed their motion for summary judgment on November 3, 2003. Following oral argument, the trial court granted the defendants’ motion. In its opinion rendered from the bench, the trial court stated that it ultimately “[could not] get around the foreseeability issue.” The trial court entered an order to this effect on December 23, 2003. From this order, the plaintiffs now appeal.

II.

Since our inquiry in reviewing a motion for summary judgment raises purely a question of law, we review the record, according no presumption of correctness to the trial court’s judgment. We must decide anew whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Staples v. CBL & Assoc., Inc., 15 S.W.3d 83, 88 (Tenn.2000). For summary judgment to be appropriate, Tenn. R. Civ. P. 56.04 requires (1) that there be no genuine issue with regard to the material facts relevant to the claim or defense contained in the motion, and (2) that the moving party is entitled to judgment as a matter of law. Id. It is incumbent upon the moving party to prove that its motion satisfies these requirements; if and when the moving party has met its burden, the burden shifts to the nonmoving party to set forth specific facts that establish the existence of a genuine issue of material fact that must be resolved by the trier of fact. Id. (citations omitted).

In supporting a motion for summary judgment, the moving party must do more than merely proffer “conclusory assertion[s] that the non-moving party has no evidence.” McCarley v. West Quality Food Svc., 960 S.W.2d 585, 588 (Tenn.1998) (quoting Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn.1993)). Rather, the movant “must either affirmatively negate an essential element of the non-movant’s claim or conclusively establish an affirmative defense.” Id. (emphasis added). If the moving party fails to negate an essential element, the nonmoving party’s burden of producing evidence of a material dispute of fact is not triggered. Id.

III.

In the instant ease, the plaintiffs proceeded on two theories: (1) that the pool was over chlorinated, and (2) that the indoor pool was not properly ventilated. The defendants moved for summary judgment on both theories based on the following: (1) that the defendants properly maintained the swimming pool and the ventilation system, and, consequently, they “did not create or tolerate a dangerous condition on their property”; (2) that since Matthew’s alleged injuries were not foreseeable, the defendants owed no duty to protect him from those alleged injuries; (3) that the plaintiffs could not proffer sufficient evidence to show causation; and (4) that even assuming there was a dangerous condition on August 6, 1999, the defendants had no knowledge of its existence prior to the injuries incurred. In support of its motion, the defendants submitted the affidavit of Ronald Davis, the chief engineer at the defendants’ hotel; and excerpts from (a) the deposition of Lisa McMahan, an inspector with the Tennessee Department of Health, Division of General Environmental Health (“TDH”), who conducted regular checks of the defendants’ pool, (b) the deposition of Shirley Lawson, and (c) the deposition of Bret Gautner, the general manager of the defendants’ hotel.

As to the plaintiffs’ first theory — that the pool contained excessive amounts of chlorine — we find that the defendants, as the moving party, satisfied their burden by proffering evidence negating the plaintiffs’ claim. In support of their motion for summary judgment, the defendants proffered, among other evidence, an affidavit from Ronald Davis, the chief engineer of the defendants’ hotel. Mr. Davis averred that the pool’s chlorine and pH levels are checked by one of the hotel employees every morning, and that these levels are subsequently recorded by that employee. Mr. Davis was responsible for maintaining these records. On the day in question— August 6, 1999 — these records demonstrate that the chlorine level of the swimming pool was 3.0 parts per million (PPM) and the pH level was 7.6. The records further illustrate that at no time from June 28, 1999, to August 6, 1999, did the chlorine level exceed 3.0 PPM. To demonstrate that these levels were within the limits established by the TDH, the defendants referenced the deposition testimony of Lisa McMahan, an environmental specialist with the TDH, whose duties include conducting surprise inspections at the Edgewater Hotel. Her deposition testimony illustrates that 3.0 PPM is at the upper limit of the range contemplated by the regulations, but that it is an acceptable reading. Similarly, a pH of 7.6 falls within the acceptable range set forth by the regulations.

We hold that the evidence recited in the foregoing paragraph successfully negates an essential element of the plaintiffs’ claim, ie., that the defendants’ pool contained too much chlorine. The admissible facts presented by the defendants show that the pool did not contain excessive levels of chlorine. Consequently, the burden shifted to the plaintiffs to present admissible facts establishing a genuine issue of material fact as to plaintiffs’ allegation of breach of duty on its theory of excessive chlorine in the pool. See McCarley, 960 5.W.2d at 588. The plaintiffs did not offer any evidence showing excessive levels of chlorine in the pool. Since the plaintiffs failed to controvert the defendants’ submission, the facts before us establish that the chlorine in the pool was not excessive; therefore there is nothing for a trier of fact to determine as to the plaintiffs’ first theory of recovery. It follows that the defendants are entitled to summary judgment as to the theory of excessive chlorine in the pool.

IV.

A.

With respect to the plaintiffs’ claim that the defendants’ pool was not properly ventilated, however, we find that the defendants did not successfully meet their burden of negating an essential element of the plaintiffs’ claim of negligence.

B.

A successful negligence claim requires that a plaintiff establish each of the following elements at trial: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995) (citations omitted). We will commence our discussion with the first element: the duty of care. Whether the plaintiff is owed a duty of care is a question of law to be determined by the court. Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn.1998) (citations omitted). This element requires consideration of “whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant.” Id. (citations omitted).

A risk is unreasonable and imposes a duty to act with care if “the foreseeable probability and gravity of harm posed by defendant’s conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm.” McCall, 913 S.W.2d at 153. Once a court finds that a duty of care is owed to the plaintiff — either a duty to refrain from creating a dangerous condition or a duty to warn against such a condition — the court must determine “whether a defendant has conformed to the applicable standard of care, which is generally reasonable care under the circumstances.” Coln, 966 S.W.2d at 39. Our Supreme Court has articulated the analysis to be employed in determining the scope of duty in an action for negligence:

The term reasonable care must be given meaning in relation to the circumstances. Ordinary, or reasonable, care is to be estimated by the risk entailed through probable dangers attending the particular situation and is to be commensurate with the risk of injury. The risk involved is that which is foreseeable; a risk is foreseeable if a reasonable person could foresee the probability of its occurrence or if the person was on notice that the likelihood of danger to the party to whom is owed a duty is probable. Foreseeability is the test of negligence. If the injury which occurred could not have been reasonably foreseen, the duty of care does not arise, and even though the act of the defendant in fact caused the injury, there is no negligence and no liability. “[T]he plaintiff must show that the injury was a reasonably foreseeable probability, not just a remote possibility, and that some action within the [defendant’s] power more probably than not would have prevented the injury.”

Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn.1992) (internal citations omitted).

In the instant case, the defendants contend that the injuries alleged by the plaintiffs were unforeseeable and, so the argument goes, they were under no obligation to undertake measures for maintaining their pool beyond those that were already in place. The defendants argue that the plaintiffs neglected to proffer any evidence that the ventilation system at the Edge-water Hotel’s pool was not working on the day of the alleged injuries, and consequently there is nothing that the defendants could have done beyond their regular maintenance to reasonably foresee that this type of injury could occur. This argument, however, fails to recognize the defendants’ burden in supporting a motion for summary judgment. It is not necessary that the plaintiff furnish sufficient evidence to allow the court to determine that the ventilation system was not working or that these injuries were foreseeable. Rather, it is incumbent upon the defendants at the summary judgment stage to demonstrate that the ventilation was, in fact, working on August 6, 1999. The defendants’ argument assumes that they have proven that the ventilation system was on and, under those conditions, it is not foreseeable that Matthew would sustain such injuries. However, the defendants have made no such showing. The defendants failed to present evidence that Matthew’s injuries were not a foreseeable consequence of a poorly ventilated indoor pool. For this reason, we hold that the duty element was not negated. It follows that the obligation of the plaintiffs to present evidence on this issue was not triggered. See McCarley, 960 S.W.2d at 588.

The defendants rely primarily on the case of Tompkins v. Annie’s Nannies, Inc., 59 S.W.3d 669 (Tenn.Ct.App.2000), for the proposition that an injury must be foreseeable for a duty to arise. This case is inapposite to the one now before us. In Tompkins, we reviewed the trial court’s grant of a directed verdict where a plaintiff, whose knees were injured in a downhill race, failed to proffer evidence that her injury was foreseeable. Id. at 674. Although the evidence demonstrated that the plaintiffs injuries were caused by running down the hill, the trial court decided, and we agreed, that the defendant could not have reasonably foreseen that such a rare injury would have occurred when children under its care ran down a hill. Id.

The issue before us is not the sufficiency of evidence at trial. In Tompkins, the plaintiff, at trial, had the burden of showing foreseeability. In the instant case, we are not dealing with a trial. We are dealing with summary judgment. On summary judgment, the defendant has the burden of showing a lack of foreseeability. This the defendants have not done. The defendants failed to negate the element of duty. As a consequence of this failure, the plaintiffs’ burden to prove duty was not triggered. While they will have that burden at trial, they do not have it now.

C.

If a defendant does not exercise reasonable care, it breaches its duty to a plaintiff. McCall, 913 S.W.2d at 153. Although the owner or operator of premises is not the “absolute insurer” of the safety of its premises, it is required to use due care under all circumstances. Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn.1994). That includes removing or warning against any latent or hidden dangerous conditions of which the owner was aware or should be aware through ordinary diligence. Coln, 966 S.W.2d at 40. Therefore, before a premises owner can be held liable for a dangerous or defective condition on its premises, there must be evidence at trial that the condition was created by the owner or its agent, or, if created by another, that the owner had actual or constructive notice of the condition prior to the alleged injury. Chambliss v. Shoney’s Inc., 742 S.W.2d 271, 273 (Tenn.Ct.App.1987) (citation omitted). The defendants contend that since the plaintiffs presented no evidence to prove this element of its cause of action regarding lack of ventilation, summary judgment was appropriate on the plaintiffs’ second theory of recovery.

The defendants have once again failed to grasp the parties’ respective burdens on summary judgment. Whether the plaintiffs presented evidence that the ventilation system was not working on the day in question is not the issue. This is putting the proverbial cart before the horse. The plaintiffs’ submissions are not even subject to analysis by the court until the defendants submit evidence demonstrating that the system was in fact working. In support of their motion for summary judgment, the defendants proffered the following evidence relating to the ventilation system: that the system was hardwired and remained on 24 hours a day; that it could only be turned off by a breaker located in the pool area, which was practically inaccessible to the public, or by an electrical storm, in which case the pool would be closed; that the defendants’ employees — namely, their maintenance engineers — were expected to check that the ventilation system was working when they conducted their daily chemical tests of the pool; that if the system was not functioning properly, it would immediately be attended to; and that when Mr. Davis checked the chemical levels and the ventilation system on August 7, 1999, the day following the injury, the system was working properly. This evidence certainly casts doubt on the assertion by the plaintiffs that the ventilation system was not working on August 6, 1999; but this is not the issue. The question for us to decide is whether the defendants’ evidence negates the plaintiffs’ allegation that the indoor pool was not properly ventilated during the relevant time.

As we have previously stated, “[m]aterial supporting a motion for summary judgment must do more than ‘nip at the heels’ of an essential element of a cause of action; it must negate that element.” Madison v. Love, No. E2000-01692-COA-RM-C V, 2000 WL 1036362, at *2 (Tenn. Ct.App. E.S., filed July 28, 2000). The evidence before us does not show that the indoor pool was properly ventilated when the pool was used by Matthew. No one associated with the hotel testified that the indoor pool was properly ventilated during the critical period of Matthew’s use. Although the log containing the chlorine and pH levels sufficed to satisfy the defendants’ burden on the issue of excessive chlorination in the pool, that log fails to give any indication of the engineer’s assessment of the ventilation system. Since there is no evidence unequivocally showing that the ventilation system was working on August 6, 1999, these assertions by the defendants and their agents merely cast doubt on the plaintiffs’ claim that the ventilation system was not working. They do not, however, negate the plaintiffs’ lack-of-ventilation allegation in a way that would trigger the plaintiffs’ burden to proffer evidence that the ventilation system was not working. See McCarley, 960 S.W.2d at 588.

D.

Causation, or cause in fact, deals with the “but for” consequences of the defendant’s conduct, i.e., that “[t]he defendant’s conduct is a cause of the event if the event would not have occurred but for that conduct.” Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn.1993) (citations omitted). The defendants argue that the evidence proffered by the plaintiffs— namely the testimony of Dr. Ellenburg that Matthew’s alleged injuries were caused by exposure to chlorine fumes— fails to demonstrate cause in fact. Yet again, we need not reach the plaintiffs’ evidence on this issue where the defendants have failed to negate this element. The defendants proffered no evidence demonstrating that an indoor pool in which the ventilation system was not functioning properly could not cause injuries of the type suffered by Matthew. Consequently, where the defendants have failed to negate the causation element, the burden does not shift and thus it is not necessary that we address the strength of the plaintiffs’ evidence relating to causation.

In their brief, the defendants contend that there is no testimony that would contradict their claim that the hotel conducted daily pool inspections, that the pool was maintained at proper chlorine levels, and that there was adequate ventilation in the pool and hot tub area. Even if this is the case, it is not this court’s duty to make a determination on this issue absent any evidence that on the day on which Matthew Lawson’s injuries allegedly occurred, there was adequate ventilation in the pool area. In McCarley, the defendant restaurant proffered evidence that cast doubt on the plaintiffs assertion that its food caused his food poisoning. McCarley, 960 S.W.2d at 588. The court found, however, that where the evidence proffered by the defendant failed to exclude the defendant’s food as a potential source of the plaintiffs injuries, summary judgment was not proper. Id. Similarly, where the evidence presented casts doubt on the plaintiffs’ contention as to what caused Matthew’s injuries, but fails to negate improper ventilation from the list of possible causes, a genuine issue of material fact exists which must be resolved by the trier of fact.

E.

The test for proximate cause, or legal cause, is three-fold: (1) the defendant’s conduct must have been a substantial factor in bringing about the harm complained of; (2) there is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in the harm; and (3) the harm giving rise to the cause of action could have reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence. Kilpatrick, 868 S.W.2d at 598, n. 1 (citing McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.1991)). In light of our discussion, it follows that the defendants also failed to satisfy their burden on proximate causation. The defendants attempt to rely on Dr. Ellen-burg’s deposition testimony in which he stated that if the chlorine and pH levels were normal, and the pool was properly ventilated, he could not have foreseen that Matthew would sustain those injuries. The defendants attempt to rely on this statement to argue that Matthew’s injuries were not foreseeable. Yet again, we need not address the sufficiency of this evidence to demonstrate proximate causation when the defendants have failed to negate this element with evidence that a poorly ventilated pool could not cause Matthew’s injuries. Consequently, the plaintiffs’ burden of producing evidence on the issue of proximate cause was never triggered.

V.

The trial court’s grant of summary judgment to the defendants on the plaintiffs’ claim that the Edgewater Hotel’s pool contained excessive levels of chlorine is affirmed. The grant of summary judgment to the defendants as to the plaintiffs’ claim that the pool was not properly ventilated is hereby vacated. This case is remanded for further proceedings, consistent with this opinion. Exercising our discretion, costs on appeal are taxed to the parties equally.

      . For ease of reference, we will refer to Matthew Lawson and the other minor children involved in this matter by their first names. We intend no disrespect.

      . Ms. Deering and her son Jason arrived later that day.

      . The following morning, when Ms. Lawson walked through the indoor pool enclosure, she noticed that the water was clearer and that the chlorine odor had subsided.

      . The position of weekend manager on duty was split between the hotel department heads. Although Ronald Davis was the chief engineer, he was the manager on duty that weekend. In his deposition, he testified that he investigated a complaint of excessive chlorination by conducting tests on August 7, 1999, all of which indicated that the pool chlorination was within normal limits. He also testified that when he tested the ventilation system the day after the incident, the system was working. Mr. Davis admitted having a conversation with Ms. Lawson, but he denied saying that the ventilation system had been turned off. The defendants have filed a motion in limine to exclude this testimony should the matter go to trial. We express no opinion as to the merits of the motion.

      . The plaintiffs filed a motion to amend their complaint on November 7, 2003. In it, they sought to allege that the defendants were guilty of negligence per se for violating the following Department of Health and Environment regulations pertaining to swimming pools:
      Rule 1200 — 23—1.04(l)(b) "Pool Enclosures. Ventilation must be sufficient to prevent condensation and odor accumulation.”
      Rule 1200-23-1.04(3)(c)(i) and (ii): Regarding acceptable levels of chlorine in pools and spas.
      Rule 1200-23-1.04(3)(c)(5): Hand chlorination not acceptable except for emergencies, infrequent chlorination purposes, or as approved by the Department.
      The plaintiffs further alleged that Matthew "sustained an exacerbation to a pre-existing condition” that will result in future hospital, doctor and drug expenses, and that he "sustained, and will continue to sustain, great pain of body and mind.” The court entered an order December 23, 2003, allowing the motion. However, the trial court, in its order, also allowed defendants' motion to amend their answer. Since an automatic chlorination system manufactured by another entity was used to chlorinate the defendants’ pool, and that same company furnished the chlorine sanitizing agent, the defendants specifically denied any negligence. The defendants further stated that although they contend that the pool was properly maintained at all times, any injuries to the plaintiffs were proximately caused by the automatic chlorination system and/or chlorine sanitizing agent, both of which were beyond the defendants' control. Defendants also pled comparative fault as an affirmative defense.

      . In assessing duty, the factors appropriate for the court's consideration are
      the foreseeable probability of the harm or injury occurring; the possible magnitude of the potential harm or injury; the importance or social value of the activity engaged in by defendant; the usefulness of the conduct to defendant; the feasibility of alternative, safer conduct and the relative costs and burdens associated with that conduct; the relative usefulness of the safer conduct; and the relative safety of alternative conduct.

        McCall, 913 S.W.2d at 153.

      . The defendants also contend that the other factors set forth in McCall, as discussed in Coin, counsel against this court finding that the defendants had a duty of care to the plaintiff under the circumstances. They suggest, for instance, that a finding that the injuries sustained were foreseeable, in the absence of any evidence that the ventilation system was not working, would have the ultimate effect of shutting down pools. We find this to be without merit. This argument presumes that the ventilation system was working. As previously discussed, the defendants fail on their motion because they have not conclusively established that the system was properly working on the day in question.

      . The defendants argue that the plaintiffs fail on this element of their claim because the hotel did not have notice of the allegedly dangerous condition, i.e. the lack of ventilation, until after Matthew sustained his injuries. The timing of the notice is only relevant, however, where persons outside the defendant's employ create the dangerous condition. See Chambliss, 742 S.W.2d at 273. Since defendants have not proffered any evidence showing this, we hold that there is no merit in the defendants’ argument.

      . The defendants also rely on McGuire v. Exxon Corp., No. 02A01-9805-CV-00129, 1999 WL 418343 (Tenn.Ct.App. W.S., Filed June 22, 1999), In Support Of Their Argument That Since They Had No Notice Of A Dangerous Condition, They Cannot Be Found To Be Negligent. In McGuire, The Plaintiff Was Doused With Gasoline When She Attempted To Put Gas In Her Car. Id., at *1. The Court Granted The Defendant's Summary Judgment Motion On The Ground That The Plaintiff Failed To Proffer Evidence That The Gas Station Had Constructive Or Actual Notice Of A Dangerous Or Defective Condition At The Pump. Id., at ⅜3. However, The Issue Before Us Is Whether The Defendants, By Failing To Ensure That The Ventilation System Was Working, Created A Dangerous Condition.

      . Lisa McMahan, the inspector for the TDH, testified in her deposition that she had never been taught that high levels of chlorine in the water could release enough gas under certain conditions to cause breathing problems. However, this testimony standing alone fails to negate the possibility that lack of ventilation did, in fact, cause Matthew’s breathing problems.

      . Dr. Ellenburg also testified that it was possible that Matthew’s injuries could have stemmed from exposure to smog. The defendants contend that this testimony would im-permissibly permit a juiy "to engage in conjecture, speculation, or guess work as to which of two equally probable inferences is applicable.” Martin v. Washmaster Auto Ctr., USA, 946 S.W.2d 314, 317 (Tenn.Ct.App.1996) (citation omitted). However, we do not reach this issue at the summary judgment stage of the proceedings. Rather, our focus is on whether the defendants successfully negated the possibility that a lack of ventilation could cause Matthew’s injuries.


author: Chief Justice JEFFERSON Justice O’NEILL,

text:
    In re BURLINGTON COAT FACTORY WAREHOUSE OF McALLEN, INC., Relator.
    No. 02-1084.
    Supreme Court of Texas.
    July 1, 2005.

      Javier Gonzalez, Chester J. Makowski, Keith N. Uhles and Nicholas Arthur Par-ma, Royston Rayzor Vickery & Williams, L.L.P., Brownsville, Jon D. Brooks, The Rangel Law Firm, P.C., Corpus Christi, for relator.
    William E. Corcoran, Law Office of William E. Corcoran, Keith C. Livesay, Live-say Law Office, McAllen, and Frank G. Davila, Frank G. Davila & Associates, Corpus Christi, for respondent.
   Chief Justice JEFFERSON

delivered the opinion of the Court,

in which Justice HECHT, Justice WAINWRIGHT, Justice BRISTER, Justice MEDINA and Justice GREEN joined.

In this case, relator Burlington Coat Factory Warehouse of McAllen, Inc. (Burlington) contends that the trial court abused its discretion by allowing execution to issue before a final judgment had been entered. We agree. Because we conclude that Burlington lacks an adequate remedy by appeal, we conditionally grant a writ of mandamus directing the trial court to vacate its orders permitting execution of the judgment.

On November 29, 2001, Evangelina Garcia sued Burlington for injuries sustained while shopping at a Burlington retail store in McAllen. Garcia sought to recover both actual and exemplary damages. Burlington did not file an answer in the trial court, and on March 25, 2002, the trial court rendered a default judgment in favor of Garcia. The judgment included a finding that Burlington was negligent, and it awarded Garcia $183,000 plus post-judgment interest. It further provided that “[a]ll other relief not expressly granted is hereby denied.” The default judgment was silent, however, on the exemplary damages claim. Burlington timely filed a motion for new trial, and the trial court signed an order granting the new trial on August 12, 2002.

Garcia contended in the trial court that the order granting a new trial was void for lack of jurisdiction; specifically, Garcia argued that the March 25 judgment was a final judgment, and that the trial court’s plenary power therefore expired on July 10, 2002 — 105 days after the judgment was signed. See Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex.1985); Tex.R. Civ. P. 329b(a), (c), (e). On August 21, 2002, the trial court entered a docket notation indicating that the new trial was cancelled due to a lack of jurisdiction; however, the trial court did not sign a written order to that effect.

In September 2002, Garcia attempted to enforce the judgment through execution. In order to avoid execution on its retail merchandise, Burlington placed $191,523.24 in the registry of the court. Burlington also filed a motion to quash execution, arguing that the trial court’s judgment was interlocutory and therefore not yet subject to execution. The trial court denied the motion to quash execution and ordered that the monies in the registry of the court be released to Garcia’s attorney, William E. Corcoran. Burlington then sought mandamus relief.

We agree that the trial court’s March 25 judgment was interlocutory rather than final. Although a judgment following a trial on the merits is presumed to be final, there is no such presumption of finality following a summary judgment or default judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199-200 (Tex.2001) (“[T]he ordinary expectation that supports the presumption that a judgment rendered after a conventional trial on the merits will comprehend all claims simply does not exist when some form of judgment is rendered without such a trial.”); Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex.1986). Thus, while a clause stating that “all other relief not expressly granted is hereby denied” indicates that a post-trial judgment is final, it does not establish finality with regard to a default judgment. See Lehmann, 39 S.W.3d at 203-04.

A judgment that actually disposes of all parties and all claims is final, regardless of its language; however, a default judgment that fails to dispose of all claims can be final only if “intent to finally dispose of the case” is “unequivocally expressed in the words of the order itself.” Id. at 200. The default judgment in this case failed to dispose of all claims; it awarded damages “[o]n the claim of negligence” but failed to dispose of Garcia’s claim for exemplary damages based on gross negligence. See Houston Health Clubs, Inc., 722 S.W.2d at 693 (holding that a default judgment that “did not dispose of the punitive damage issue” was not final). Because the judgment does not dispose of all the claims, it cannot be final unless its words “unequivocally express” an “intent to finally dispose of the case.” See Lehmann, 39 S.W.3d at 200.

In Lehmann, we provided an example of unequivocal language that would clearly indicate finality, noting that “[a] statement like, ‘This judgment finally disposes of all parties and all claims and is appeal-able’, would leave no doubt about the court’s intention.” Lehmann, 39 S.W.3d at 206. This default judgment lacks such an unequivocal expression. It does not state that it is a final judgment. In addition, it does not purport to dispose of all parties and all claims, and it does not actually dispose of Garcia’s claim for punitive damages. It is true that the judgment awarded costs and provided that Garcia “is entitled to enforce this judgment through abstract, execution and any other process necessary.” However, these factors are not dispositive; the judgment in Houston Health Clubs similarly awarded costs, awarded interest from the date of judgment, and provided that the plaintiff “shall have any and all such writs, attachments, executions, and processes as may be necessary to accomplish the relief granted to her herein.” Erwin v. Houston Health Clubs Inc., No. 85-07146 (157th Dist. Ct., Harris County, Tex., May 14, 1985). Nevertheless, we concluded that the judgment in that case was not final because it did not actually dispose of the plaintiffs claim for punitive damages. See Houston Health Clubs, Inc., 722 S.W.2d at 693.

Furthermore, trial courts sometimes use this wording in interlocutory judgments that are intended to become final only when other claims are later adjudicated. See, e.g., Auto. Ins. Co. v. Young, No. 07-00-0469-CV, 2001 WL 708505 (Tex.App.Amarillo June 25, 2001, no pet.), 2001 Tex. App. LEXIS 4188 (not designated for publication). In Young, the trial court granted an interlocutory judgment in favor of one plaintiff against one defendant. Id. Although the judgment provided that “IT IS FURTHER ORDERED, ADJUDGED and DECREED that Plaintiff, MYRTLE YOUNG is entitled to enforce this judgment through abstract, execution, and any other process,” the judgment was not intended to be final; there were additional parties whose claims were still pending before the trial court, and the judgment could not become final until those claims were adjudicated or severed. Id.; see also Tex.R. Civ. P. 41.

We cannot conclude that language permitting execution “unequivocally express[es]” finality in the absence of a judgment that actually disposes of all parties and all claims. See Lehmann, 39 S.W.3d at 200. A judgment “must be read in light of the importance of preserving a party’s right to appeal”; if we imply finality from anything less than an unequivocal expression, a party’s right to appeal may be jeopardized. Id. at 195, 206 (“[Wjhether a judicial decree is a final judgment must be determined from its language and the record in the case. Since timely perfecting appeal (as well as filing certain post-judgment motions and requests) hangs on a party’s making this determination correctly, certainty is crucial.”). Because the judgment’s language does not unequivocally express that it was intended to be final and because the judgment does not dispose of all claims, we conclude that it is interlocutory.

Because the default judgment was interlocutory, the trial court abused its discretion by permitting execution to issue. First, an interlocutory judgment may not be enforced through execution. Tex.R. Civ. P. 622 (permitting execution only in cases “in which a final judgment has been rendered”); Nalle v. Harrell, 118 Tex. 149, 12 S.W.2d 550, 551 (1929). Second, at the time the trial court permitted execution, there was not even an interlocutory judgment then in force; the trial court vacated the default judgment when it granted Burlington’s motion for new trial on August 12, 2002. Because the default judgment was interlocutory, the trial court retained jurisdiction to set the judgment aside and order a new trial. See Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.1993) (“The trial court also retains continuing control over interlocutory orders and has the power to set those orders aside any time before a final judgment is entered.”). Moreover, the court’s later docket entry “cancelling” the new trial was ineffective to set aside the order granting a new trial; a docket entry does not constitute a written order. Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S.W.2d 561, 566 (1937) (holding that “[¡Judgments and orders of courts of record to be effectual must be entered of record,” and concluding that “[n]either entries in the judge’s docket nor affidavits can be accepted as substitute for such record; and docket entries, affidavits, and other like evidence can neither change nor enlarge judgments or orders as entered in the minutes of the court”). Consequently, there was no judgment in force — much less a final judgment — at the time the trial court ordered execution.

We further conclude that Burlington has no adequate remedy by appeal. We have previously recognized that there is no adequate remedy by appeal when a trial court ignores its earlier order granting a new trial. See In re Barber, 982 S.W.2d 364, 368 (Tex.1998). There is also no adequate remedy by appeal for allowing execution to issue before a final judgment has been entered. See In re Tarmnt County, 16 S.W.3d 914, 918-19 (Tex.App.-Fort Worth 2000, orig. proceeding) (noting that a litigant has the right to supersede an adverse judgment during the pendency of an appeal, and that this right will be lost forever if execution is permitted prior to the entry of a final, appealable judgment); see also Mantas v. Fifth Court of Appeals, 925 S.W.2d 656 (Tex.1996).

Accordingly, without hearing oral argument, we conditionally grant the writ of mandamus. Tex.R.App. P. 52.8. We direct the trial court to vacate its orders permitting execution of the judgment and releasing the funds in the registry of the court to Corcoran. We are confident that the trial court will promptly comply, and the wilt will issue only if it does not.

Justice O’NEILL filed a dissenting opinion, in which Justice JOHNSON joined as to Part I.

Justice O’NEILL,

joined by Justice JOHNSON as to Part I, dissenting.

I

I agree with the Court that no presumption of finality attaches to the March 25th default judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex.2001). I also agree that the judgment’s Mother Hubbard clause, standing alone, is insufficient to establish the judgment’s finality. But, contrary to the Court’s assessment, additional language in the order provides “other indicators of finality.” 167 S.W.3d at 829. Accordingly, I would hold that the trial court did not abuse its discretion and deny Burlington Coat Factory Warehouse’s mandamus petition.

In Lehmann, we rejected a formulaic approach to determining the finality of judgments; even an order that is entitled “final” may not be final. 39 S.W.3d at 200. Instead, we look for a “clear indication that the trial court intended the order to completely dispose of the entire case.” Id. at 205. While the order here does not say, in so many words, that it is a final judgment or disposes of the entire case, it clearly indicates that the trial court intended it to be final in this case, which involves one plaintiff and one defendant.

First, the judgment awards the plaintiff, Evangelina Garcia, postjudgment interest “from the date this judgment is signed until paid.” The judgment also awards Garcia a specific sum of prejudgment interest “measured from [the] date of judgment.” In addition, the judgment states that “all relief not expressly granted is hereby denied” and orders that Garcia “is entitled to enforce this judgment through abstract, execution and any other process necessary.” As the Court correctly observes, an interlocutory judgment may not be enforced through execution. 167 S.W.3d at 831; Tex.R. Civ. P. 622. I would presume that the trial court was aware of this limitation and thus would take the trial court’s unconditional statement that Garcia “is entitled” to execution, together with its award of pre- and post-judgment interest from the date the judgment was signed and the denial of all relief not expressly granted, as clear indications that the court intended the order to be final.

The same indicia of finality also distinguish this case from Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692 (Tex.1986). In that case, we held that the court of appeals abused its discretion in ordering the trial court to vacate an order granting a motion for new trial. Id. at 693-94. The trial court granted the motion after rendering a default judgment on all of the plaintiffs claims except punitive damages. We held that the default judgment was interlocutory because it did not dispose of the punitive-damages claim. Id. at 693. We did so because the underlying judgment did not mention the claim “either expressly or by implication.” Id. (emphasis added). While the judgment did provide that the plaintiff “shall have ... execution” and awarded interest from the “date of judgment,” the judgment contained no Mother Hubbard clause, see Judgment, Erwin v. Houston Health Clubs, No. 85-07146 (157th Dist. Ct., Harris County, Tex., May 14, 1985), our touchstone for evaluating a summary judgment’s finality at the time. See Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex.1993), overruled by Lehmann, 39 S.W.3d at 204. SEQ CHAPTER *h *r 1 Moreover, the judgment generally provided that interest would run from “the date of judgment,” whenever that might be, whereas in this case postjudgment interest ran from a specific date — “the date this judgment is signed.” By including in the order a statement that “all relief not expressly granted is hereby denied” and otherwise treating the order here as final, the trial court implicitly disposed of Garcia’s exemplary damages claim. Because the trial court’s judgment was not interlocutory, the court did not abuse its discretion in denying Burlington’s motion to quash execution.

II

I would additionally deny mandamus relief because Burlington has presented us with an insufficient record. The trial court’s order denying Burlington’s motion to quash execution recites that the court “considered the motion, Plaintiffs Response thereto, along with the evidence presented” and “finds that the motion is not well taken, because of the Rule 11 agreement, because the default judgment was final, and pursuant to the doctrines of judicial estoppel and judicial admission.” Rule 52.7(a) of the Rules of Appellate Procedure provides that a relator “must file with the petition ... (1) a certified or sworn copy of every document that is material to the relator’s claim for relief ... and (2) a properly authenticated transcript of any relevant testimony from any underlying proceeding, ... or a statement that no testimony was adduced in connection with the matter complained.” Tex.R.App. P. 52.7(a) (emphasis added). Burlington did not file Garcia’s response to the motion to quash, although the trial court order specifically states that the court based its ruling, in part, on the response. Burlington also failed to provide the Court a transcript of any hearing on the motion to quash, although the order suggests that evidence was presented. See Tex.R.App. P. 52.7(a)(2). Nor did Burlington file a statement that no testimony was adduced in connection with its motion to quash. See id. SEQ CHAPTER *h *r 1 Burlington’s failure to provide the required record is significant here because it may have shown that the parties treated the order as final, and thus shed light on the order’s finality. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674-75 (Tex.2004). I would deny mandamus relief.

      . Burlington enclosed a letter to the Cameron County deputy sheriff with the funds; the letter stated that "this check is being sent on the understanding that the execution proceedings will cease forthwith.” Garcia asserts that this letter constitutes a Rule 11 agreement to settle the case. See Tex.R. Civ. P. 11 ("Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”). However, we have held that Rule 11, like the statute of frauds, requires a "written memorandum which is complete within itself in every material detail, and which contains all of the essential elements of the agreement," so that the agreement “can be ascertained from the writings without resorting to oral testimony.” Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex.1995); Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex.1978). This letter does not express an agreement between parties or counsel. The letter was addressed only to the deputy sheriff, not to Ms. Garcia or her attorneys. Nothing in the letter indicates that the attorneys or parties had reached an agreement, and nothing in the letter describes the essential terms of such an agreement.

      . In addition to seeking a writ of mandamus, Burlington also filed a bill of review in the trial court. Garcia now asserts that (1) Burlington's decision to seek a bill of review judicially estops it from contending that the judgment was interlocutory, and (2) Burlington's statements in the bill-of-review proceeding amount to a judicial admission that the judgment was final. We disagree. Parties may pursue a bill of review while pursuing other relief, and assertions in such alternative pleadings are not judicial admissions. See Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex.1983); see also Havens v. Ayers, 886 S.W.2d 506, 511 (Tex.App.-Houston [1st Dist.] 1994, no writ).

      . We agree with Justice O’Neill that relators must submit a sufficient mandamus record. Tex.R.App. P. 52.7(a) (requiring a relator to file "(1) a certified or sworn copy of every document that is material to the relator’s claim for relief ... and (2) a properly authenticated transcript of any relevant testimony from any underlying proceeding, ... or a statement that no testimony was adduced in connection with the matter complained."). Neither party suggests that the record in this case lacks any material document or relevant testimony.


text:
    In re Delmar “Bo” McKINNEY and Edward D. Jones & Co., L.P. d/b/a Edward Jones.
    No. 04-0651.
    Supreme Court of Texas.
    July 1, 2005.

      Jonathan A. Pace, Pace & Rickey, L.L.P., Robert L. Yeager III, Dallas, for relator.
    Michael L. Scanes, Trenton Colby Hood, Ñaman Howell Smith & Lee, L.L.P., Waco, for real party in interest.
   PER CURIAM.

Delmar “Bo” McKinney and Edward D. Jones & Co., L.P. d/b/a Edward Jones (collectively “Edward Jones”) seek mandamus relief after the trial court denied their motion to compel arbitration. Because the Federal Arbitration Act requires the trial court to compel arbitration in this case, we conditionally grant their petition and order the trial court to compel arbitration in accordance with the parties’ agreement.

As a young child, Keith Rohlaek received a cash settlement following the death of his father. The money was invested and held in a custodial account with Edward Jones. After turning eighteen, Rohlaek retitled his customer account with Edward Jones from a custodial account to one in his own name. At that time, he signed a seven-page contract, entitled “Customer Account Agreements for Full Service and Customer Loan Accounts,” which authorized Edward Jones to act as Rohlack’s broker and to provide Rohlaek with margin loans. On the last page above Rohlack’s signature, the agreement disclosed that it incorporated “a pre-dispute arbitration clause,” referencing the pages on which it could be found. At those pages, the agreement provided:

ARBITRATION:
1. Arbitration is final and binding on all parties.
2. The parties are waiving their right to seek remedies in court, including the right to jury trial.
3. Pre-arbitration discovery is generally more limited than and different from court proceedings.
4. The arbitrators’ award is not required to include factual findings or legal reasoning and any party’s right to appeal or to seek modification of rulings by the arbitrators is strictly limited.
5. The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry.

The signature page also acknowledged that Rohlaek had “received a copy of this document.”

Over the next three years, Rohlaek used the money for his college and living expenses. During this same period, Roh-lack’s customer account suffered substantial losses from investments in technology stocks on margin. Because of these losses, Rohlaek sued Edward Jones, alleging breach of contract, fraud, breach of fiduciary duty, and other claims for mishandling and loss of investments in his customer account. In response, Edward Jones filed a plea in abatement and motion to compel arbitration, urging the court to apply the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, to the agreement.

The trial court, however, denied the motion to compel arbitration, concluding that Rohlaek had not agreed to arbitrate despite his signature on the agreement. The court’s order was signed after an eviden-tiary hearing wherein Rohlaek testified that he had not agreed to arbitrate and had signed the document intending only to change the account name and open a margin account. Edward Jones thereupon sought mandamus relief in the court of appeals which a divided court denied by memorandum opinion. The court of appeals concluded that it could not intervene because whether Rohlaek had agreed to arbitrate was a disputed fact issue beyond the scope of mandamus relief.

Absent fraud, misrepresentation, or deceit, a party is bound by the terms of the contract he signed, regardless of whether he read it or thought it had different terms. EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex.1996); see also N & D Fashions, Inc. v. DHJ Indus., Inc., 548 F.2d 722, 727 (8th Cir.1976). Therefore, Rohlack’s contention that he did not understand his signature’s significance does not negate his acceptance of the contract terms. Moreover, when parties enter into an agreement based on a writing that is not ambiguous, the court will give effect to the parties’ intention as expressed in the writing. Sun Oil Co. v. Madeley, 626 S.W.2d 726, 731 (Tex.1981). Here, the agreement that Rohlaek signed recited: “THIS IS A BINDING CONTRACT. I HAVE READ IT CAREFULLY BEFORE SIGNING.” It further alerted him on the signature page that it incorporated an agreement to arbitrate and explained elsewhere in the agreement what that meant. Considering these undisputed facts, the only decision that the trial court could have reasonably reached was that Rohlaek, by signing the agreement, had consented to arbitrate future disputes. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding) (“clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion”).

The trial court erroneously denied Edward Jones’ motion to compel arbitration under the FAA. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex.2001). Accordingly, without hearing argument, we conditionally grant the writ and direct the trial court to order that all claims proceed to arbitration. Tex.R.App. P. 59.1.