author: LAWRENCE E. MOONEY, Presiding Judge.

text:
    Deane F. AKERS, Claimant/Appellant, v. BARNES-JEWISH HOSPITAL, Employer, and Division of Employment Security, Respondent.
    No. ED 85468.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 24, 2005.

      Brian Stokes, St. Louis, MO, for appellant.
    Marilyn G. Green, Jefferson City, MO, Larry R. Ruhmann, St. Louis, MO, for respondent.
   LAWRENCE E. MOONEY, Presiding Judge.

The claimant, Deane Akers, appeals the Commission’s decision, which held that he was fired for “aggravated misconduct” connected with his work and therefore disqualified him from unemployment-compensation benefits. However, because his employer failed to prove that claimant’s drinking a glass of milk constituted theft or other “misconduct,” we reverse and remand.

In August 1996, the claimant began working as a security guard for Barnes-Jewish Hospital. In January 2004, he was fired and filed for unemployment-compensation benefits. Initially, a deputy for the Division of Employment Security determined that the claimant was disqualified for six weeks of benefits because the claimant had been fired for “misconduct” connected with his work. The claimant appealed and a hearing was held before the Appeals Tribunal. The tribunal held that the “claimant’s action in drinking [the employer’s] milk, without authorization or payment, is theft,” and concluded this was “aggravated misconduct.” Therefore, the Appeals Tribunal modified the deputy’s decision by increasing the number of weeks of disqualification from six to sixteen and canceling the claimant’s wage credits. The Commission adopted the Appeals Tribunal’s decision and the claimant appealed.

This Court may reverse the Commission’s decision if there was not sufficient competent evidence to support the award. Section 288.210 RSMo. 2000 Under section 288.050.2 RSMo 2000, a claimant may be denied waiting-week credit of four to sixteen weeks of unemployment benefits if the claimant is fired for “misconduct” connected with his work. Further, the statute also provides that the individual’s wage credits, which were established through his employment by the employer who discharged him, may be can-celled “in the more aggravated cases of misconduct.” Prior to January 1, 2005, Missouri’s employment-security statutes did not define “misconduct.” But Missouri courts have defined “misconduct” as follows:

[A]n act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.

Hoover v. Community Blood Center, 153 S.W.3d 9, 12-13 (Mo.App. W.D.2005) (citations omitted). In general, the claimant bears the burden of demonstrating entitlement to unemployment benefits. Id. at 13. However, when the employer contends that the claimant was discharged for “misconduct,” the burden shifts to the employer to prove “misconduct” connected with the claimant’s work. Id.

The employer has failed to meet its burden. A security supervisor testified that she had watched a surveillance tape that showed the claimant removing and drinking milk from a refrigerator in a patient-therapy room. The refrigerator had a note on it stating “for patients only.” When confronted, the claimant admitted drinking the milk, but said the milk belonged to him. The employer failed to adduce evidence establishing that it owned the milk and rebutting the claimant’s assertion that the milk was his. Although the claimant may have displayed poor judgment in using a refrigerator intended for patient use, a lack of judgment does not disqualify a claimant from receiving unemployment benefits on the basis of “misconduct.” McClelland v. Hogan Personnel, 116 S.W.3d 660, 665 (Mo.App. W.D.2003). Since there is not sufficient evidence of theft or other “misconduct” to support the Commission’s decision, its decision is reversed and the cause is remanded with directions to reinstate the claimant’s wage credits and sixteen weeks of benefits.

LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J., concur.

      . All statutory references are to RSMo. 2000. The legislature has amended section 288.050, effective January 1, 2005.

      . Section 288.030, effective January 1, 2005, sets forth a nearly identical definition of "misconduct” as that quoted above.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Mark HUBBARD, Appellant.
    No. ED 84757.
    Missouri Court of Appeals, Eastern District, Division One.
    May 24, 2005.

      Craig Johnston, Assistant Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Mark Hubbard (“Appellant”), appeals from the judgment of the Circuit Court of St. Louis County convicting him of first degree murder, section 565.020.0, first degree assault, section 565.050, and two counts of armed criminal action, section 571.015, after a bench trial. Appellant was sentenced to life without the possibility of parole for the murder charge and three life sentences on the remaining charges. All sentences were to run concurrently. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 30.25(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.


text:
    James METTS, Employee/Respondent, v. FANTASY BUS LIMOUSINE SERVICE, Employer/Appellant, and Missouri State Treasurer, Custodian of the Second Injury Fund, Additional Party/Appellant.
    No. ED 85222.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 24, 2005.
    Laura C. Wagener, Assistant Attorney General, St. Louis, MO, for Treasurer of MO.
    Eugene Edward Coon, Jr., Tremayne, Lay, Bauer, Coleman & Grady, St. Louis, MO, for Fantasy Bus Limousine Service.
    James Nelson Guiri, II, Law Office of Jim Guiri, St. Louis, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund (Fund) appeals from the “Temporary Award Modifying the Award and Decision of the Administrative Law Judge” (award) issued by the Labor and Industrial Relations Commission (Commission) finding Fantasy Bus Limousine Service (Employer) and Fund liable for additional medical bills stemming from James Metis’s back surgeries but remanding to the Division of Workers’ Compensation to take additional evidence concerning the medical bills. Employer cross-appeals from the award.

We have reviewed the briefs of the parties and the record on appeal. The Commission’s award is supported by substantial and competent evidence on the whole record. No error of law appears. A written opinion reciting the detailed facts and restating the principles of law would have no precedential value. We affirm in accordance with Rule 84.16(b).

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

      . Section 287.495 RSMo 1993 does not provide for cross-appeals. On this Court’s own motion, the two appeals here were consolidated. On November 1, 2004, this Court directed the parties to address the appealability of the award and whether Employer’s appeal was timely. Commission issued its award on September 2, 2004. Commission did not receive Employer’s Notice of Appeal until October 12, 2004, more than thirty days from the time the award was issued. Thus, Employer’s notice was untimely. Employer’s brief is hereby stricken and its points on appeal are dismissed.


text:
    Timothy C. GALLAGHER, Defendant/Movant, v. STATE of Missouri, Plaintiff/Respondent.
    No. ED 85122.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 24, 2005.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Timothy C. Gallagher (Movant) appeals from the motion court’s judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. A jury convicted Movant of one count of the class C felony of possession of a controlled substance, i.e., cocaine base, in violation of Section 195.202 RSMo 1994. The trial court sentenced Movant, as a prior offender, to four years’ imprisonment in the Missouri Department of Corrections. Movant appealed the judgment of his conviction and sentence, and this Court affirmed in State v. Gallagher, 75 S.W.3d 333 (Mo.App. E.D.2002). Movant timely filed his pro se and amended motions, pursuant to Rule 29.15, alleging ineffective assistance of his trial counsel.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no prec-edential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    John LINDSAY, Appellant, v. Karen HOLLAND-COOK, Respondent.
    No. ED 84991.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 24, 2005.
    Brown & Crouppen, Seth S. Webb, St. Louis, MO, for appellant.
    DeFranco Law Firm, Cody S. Moon, O’Fallon, IL, for respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K HOFF, J.
   ORDER

PER CURIAM.

John Lindsay appeals the judgment of the trial court granting a motion for a directed verdict in favor of Karen Holland-Cook.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. No error of law appears. A written opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

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


text:
    Lloyd GRASS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85060.
    Missouri Court of Appeals, Eastern District, Division One.
    May 31, 2005.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Deborah Daniels, Office of the Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Lloyd Grass (“Movant”) appeals from the motion court’s judgment denying his post-conviction motion pursuant to Rule 29.15 without an evidentiary hearing, alleging ineffective assistance of counsel. Mov-ant was convicted of one count of escape from commitment pursuant to Section 575.195, RSMo 1994. Movant was sentenced to serve five years imprisonment. This Court affirmed Movant’s conviction. State v. Grass, 14 S.W.3d 656 (Mo.App. E.D.2000). In his sole point on appeal, Movant claims his trial counsel was ineffective for entering alternative pleas of not guilty and not guilty by reason of mental disease or defect because there was no evidence Movant suffered from a mental disease or defect at the time of the offense and Movant wanted to present an alternative defense.

We have reviewed the briefs of the parties, the legal file and transcript submitted on appeal. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    Matthew WILSON, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 84333.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 31, 2005.
    James H. Klahr, Jefferson City, MO, for appellant.
    Michael D. Lowry, Hillsboro, MO, for respondent.
    Before GEORGE W. DRAPER III, C.J., CLIFFORD H. AHRENS, J„ and GLENN A. NORTON, J.
   ORDER

PER CURIAM.

The Director of Revenue (hereinafter, “Director”) appeals from the trial court’s judgment setting aside the one year suspension of Matthew L. Wilson’s (hereinafter, “Driver”) driving privileges and imposing a ninety day suspension for violation of Missouri’s “Zero Tolerance Law.” Director’s sole point on appeal claims that the trial court erred in imposing a ninety day suspension because Driver’s second notice of suspension prevented automatic expungement of Driver’s first zero tolerance suspension under Section 302.545.2 RSMo (2000).

We have reviewed the briefs of the parties and the record on appeal. We find the trial court’s judgment did not erroneously declare or apply the law. Knipp v. Director of Revenue, 984 S.W.2d 147, 151 (Mo.App. W.D.1998). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Joseph D. STEWART, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 85062.
    Missouri Court of Appeals, Eastern District, Division One.
    May 31, 2005.
    Gwenda Renee’ Robinson, St. Louis, MO, for appellant.
    Deborah Daniels, Michael William Bradley (co-counsel), Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Joseph D. Stewart (Movant) appeals from a judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude that because Movant’s motion did not allege facts, not refuted by the record, showing that trial counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney, Movant was not entitled to an evidentiary hearing, and the motion court’s findings of fact and conclusions of law are not clearly erroneous. State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997); Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . All rule references are to Mo. R.Crim. P. 2005, unless otherwise indicated.


text:
    Demeco Q. WILLIAMS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84383.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 31, 2005.
    Maleaner R. Harvey, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIAL. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Demeco Williams (Movant) appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. In his appeal, Mov-ant argues that the motion court clearly erred when it failed to find that his trial attorney rendered ineffective assistance in that he failed to object to the improper opinion testimony of one of the State’s witnesses at trial.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. Helmig v. State, 42 S.W.3d 658, 665-66 (Mo.App. E.D.2001). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

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


text:
    Robert LEFFLER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85156.
    Missouri Court of Appeals, Eastern District, Division One.
    May 31, 2005.
    Robert L. Leffler, Bowling Green, MO, pro se.
    Deborah Daniels, Office of the Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Robert Leffler (“Movant”) appeals the denial of his Rule 24.035 post-conviction motion after an evidentiary hearing. Movant pleaded guilty to one count of manufacturing a controlled substance pursuant to Section 195.211, RSMo 2000, and one count of possession of a controlled substance pursuant to Section 195.202, RSMo 2000. Movant was sentenced to serve ten years and five years imprisonment respectively, with the sentences to run concurrently. Movant subsequently filed a timely motion for post-conviction relief pursuant to Rule 24.035, which the court denied after a hearing.

Movant raises two points on appeal. First, Movant argues the motion court clearly erred in failing to find his guilty plea was involuntary, unknowing, and unintelligent because plea counsel failed to advise Movant that if he had taken this case to trial, he could have sought lesser included offense instructions as a defense strategy to the charges filed against him. In his second point, Movant claims the plea court failed to comply with Rule 24.02(e) because a sufficient factual basis did not exist prior to the court accepting Movant’s guilty plea.

We have reviewed the briefs of the parties, the legal file, and the transcripts and find the motion court’s decision was not clearly erroneous. Rule 24.035(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Mark McCORD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84998.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 31, 2005.
    Kent Denzel, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J„ and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Mark McCord (“Movant”) was found guilty of first-degree murder and first-degree arson. Movant was sentenced to life without the possibility of probation or parole for murder and a consecutive term of life for arson. This conviction was affirmed pursuant to Rule 30.25(b) in State v. McCord, 121 S.W.3d 255 (Mo.App. E.D.2003). On March 15, 2004 Movant timely filed a pro se Motion to Vacate, Set Aside or Correct Judgment and Sentence and appointed counsel filed an amended motion. This motion was denied without an evidentiary hearing and Movant appeals.

In his motion, Movant raised one claim of ineffective assistance of trial counsel alleging that trial counsel did not call or investigate five different witnesses who Movant claims would have testified to exculpatory statements made by his accomplice, Stanley Degonia (“Degonia”). Mov-ant claims these five witnesses would have testified that Degonia told them that although Movant was present at the assault, he only participated in the assault by hitting Degonia’s stepfather one time and then withdrew from the participation and left the scene prior to Degonia starting the fire. The motion court denied the motion, finding that the evidence was hearsay and that Movant’s claims were refuted by the record. We find no error and affirm.

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

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


text:
    Donald B. SMELTSER, and Julie D. Smeltser, Appellants, v. Donald E. PRICE and Dolores Ann Price, Respondents.
    No. ED 84882.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 31, 2005.
    Mark S. Wasinger, Hannibal, MO, for appellant.
    Russell J. Kruse, Concordia, MO, for respondent.
    Before GEORGE W. DRAPER, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Donald and Julie Smeltser (“the Smelt-sers”) appeal the judgment of the trial court determining that Donald and Dolores Price (“the Prices”) are the fee simple title holders to a strip of real property 151.87 long and 13.75 wide (“the strip”), having established ownership by adverse possession. The Smeltsers contend that the trial court erred because its judgment is against the weight of the evidence in that the Prices did not show that they had exclusive use of the strip for the statutory period required to claim ownership by adverse possession.

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

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


text:
    Michael J. SAVAGE, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 85008.
    Missouri Court of Appeals, Eastern District, Division One.
    May 31, 2005.
    Maleaner Ryna Harvey, St. Louis, MO, for Appellant.
    Mark Steven Brown, St. Louis, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Michael J. Savage (Appellant) appeals from the motion court’s judgment denying his Rule 24.035 motion for postconviction relief. We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court did not err in denying Appellant’s motion without an evi-dentiary hearing. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . Mo. R.Crim.P. 2004.


text:
    STATE of Missouri, Respondent, v. Charaty WHITE, Appellant.
    No. ED 84806.
    Missouri Court of Appeals, Eastern District, Division One.
    May 31, 2005.

    Scott Thompson, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Charaty White (“Defendant”), appeals from the judgment of the Circuit Court of the City of St. Louis convicting her of one count of first degree murder, section 565.020 RSMo (2000), and one count of armed criminal action, section 571.015, after a bench trial. Defendant was sentenced to life imprisonment without parole for first degree murder and a concurrent life sentence for armed criminal action. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 30.25(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

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


text:
    Timothy J. THORNE, Sr., Appellant, v. STATE of Missouri, Respondent.
    No. ED 85232.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 31, 2005.

      Scott Thompson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Timothy J. Thorne, Sr., appeals the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and find that the findings, conclusions and judgment of the motion court are not clearly erroneous. Rule 24.035(k); see also Dorsey v. State, 115 S.W.3d 842, 845 (Mo. banc 2003). An extended opinion would be of no precedential value. We affirm the judgment for the reasons stated therein. Rule 84.16(b).

      . All references to the Rules are to Mo. R. Civ. P.2005 unless otherwise indicated.


text:
    No. ED 84755.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 31, 2005.
    Irene Earns, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Deborah Daniels, Jefferson City, MO, for respondent.
    Before: CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

William Hargrove ( Defendant ) appeals from his conviction for six counts of statutory sodomy in the first degree, one count of statutory rape in the first degree, and three counts of statutory rape in the second degree. A jury convicted Defendant of all counts. He was sentenced by the court to twenty-five years imprisonment for each count of statutory sodomy and statutory rape in the first degree, and seven years imprisonment for each count of statutory rape in the second degree. The sentences were ordered to be served concurrently. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).


author: JOHN E. PARRISH, Presiding Judge.

text:
    In the Interest of A.K.F., D.A.F., D.J.F., and K.D.F., Minors. Kitarra Daniel James Fort, Appellant v. Greene County Juvenile Office, Respondent.
    No. 26329.
    Missouri Court of Appeals, Southern District, Division Two.
    May 31, 2005.

      M. Elise Branyan Barker, Springfield, for appellant.
    Bill Prince, Springfield, for respondent.
   JOHN E. PARRISH, Presiding Judge.

Kitarra Daniel James Fort (father) appeals a judgment terminating his parental rights to A.K.F., born July 14, 1993, D.A.F., born July 8, 1995, D.J.F., born August 6, 1996, and K.D.F., born October 25, 1999. The parental rights of the children’s mother, Jacqueline Denise Fort (mother), were also terminated. She appeals separately. This court affirms.

The Missouri Division of Family Services (DFS) took protective custody of the children on or about April 24, 2002. The children were removed from the custody of father and mother as a result of suspected physical abuse inflicted on A.K.F. and D.A.F.

Officer Patrick Carey of the Springfield, Missouri, Police Department was called to the Disney Elementary School because of a report of suspected child abuse. Officer Carey was accompanied by Emilie Dortch, an investigator for the Children’s Division of DFS. Ms. Dortch had received a report that D.A.F. had “strangulation marks” and “bruising” on his face and shoulders.

Officer Carey, Ms. Dortch, and the school nurse met with D.A.F. and A.K.F. Officer Carey and Ms. Dortch observed marks and bruises on and around D.A.F.’s eyes, neck, chest, and chin and broken blood vessels on and around his eyes, neck, and chest. D.A.F. told the investigators that he had gotten in trouble the night before for kicking out a window in his bedroom and that father choked him “until he died.” D.A.F. explained that father choked him until he could not breathe; that he fell asleep and later woke up. D.A.F. said father told him he wanted to kill him and “smacked [him] through [his] eyes.”

Officer Carey and Ms. Dortch also spoke with A.K.F. She had not observed the choking incident that D.A.F. described, but she had heard D.A.F. scream and then become quiet. She told them that D.A.F. later told her he had been hurt. Officer Carey observed old bruises on A.K.F.’s temples.

A.K.F. and D.A.F. said that father would “choke slam” them. They described a “choke slam” as a wrestling maneuver where a person is grabbed by the neck and thrown down. The children stated that father would choke slam them on the bed in play and on the floor when he was angry. A.K.F. and D.A.F. said father would spank them with a baseball bat, a paddle, or belts. They said father and mother had told them not to tell others what happened in their home; that spanking would be considered child abuse. A.K.F. and D.A.F. said mother and father also hit one another.

Photographs of D.A.F.’s injuries were introduced in evidence. Officer Carey reported that based on the incidents reported by A.K.F. and D.A.F., he believed there was probable cause that father had committed one or more criminal offenses. Officer Carey signed an authorization for the children to be placed in the custody of DFS.

Father testified at the evidentiary hearing on the petition to terminate parental rights. He said he had “practiced wrestling moves” on his children in play. He said the night before the date when Officer Carey and Ms. Dortch were called to the school, he had played a wrestling game with D.A.F. “in the context of [a] video-game.” Father explained, “My character actually choked his character into submission where the character, as [D.A.F.] describes it, died and came back to life.” Father told of an earlier incident when he held D.A.F. by the neck against a wall. He said that had not occurred near the time the officer and DFS worker had gone to the school; that it had occurred at an earlier date.

The petition to terminate father’s and mother’s parental rights was filed April 24, 2003, one year after the children were taken into protective custody. The petition alleged that the children had been in alternative care pursuant to an order of the juvenile court due to parental neglect and abuse. It asserted that the children had been subjected to physical abuse by father under conditions that indicated mother knew or should have known of the abuse. It also alleged that father and mother repeatedly and continuously failed, although physically and financially able, to provide the children with adequate food, clothing, shelter, or education as defined by law, or other care and control necessary for the children’s physical, mental, or emotional health and development. The petition asserted that the children had been under the jurisdiction of the juvenile court in excess of one year without conditions that led to the assumption of jurisdiction being rectified; that there was little likelihood these conditions would be remedied at an early date; that continuation of the parent-child relationship greatly diminished the children’s prospects for early integration into a stable and permanent home.

The juvenile court found and concluded, based on clear, cogent, and convincing evidence, that the allegations contained in the petition to terminate parental rights were true and the statutory grounds for termination of the parental rights of the father and mother existed in that the minor children were abused and/or neglected, § 211.447.4(2), and the children had been under the jurisdiction of the juvenile court for one year and the conditions leading to the assumption of jurisdiction remained, § 211.447.4(3). The juvenile court found it was in the best interest of the children to terminate the parental rights of father and mother, § 211.447.5. Judgment was entered terminating both parents’ parental rights.

The trial court’s decision to terminate parental rights will be sustained on appeal unless there is no substantial evidence to support the judgment, it is against the weight of the evidence, or it erroneously declares or applies the law. [In the Interest of] S.L.J., 3 S.W.3d [902] at 907 [ (Mo.App.1999) ]. In our review, we are mindful that the juvenile court was in a superior position to judge the credibility of the witnesses and that it was free to believe all, part, or none of the witnesses’ testimony. Id. Furthermore, the standard of proof may be satisfied even though the trial court has contrary evidence before it or evidence in the record might support a different conclusion. [In the Matter of] C.M.B., 55 S.W.3d [889] at 893 [ (Mo.App.2001) ].

In re B.C.K., 103 S.W.3d 319, 322 (Mo.App. 2003). “In our review, we consider all facts and reasonable inferences therefrom in a light most favorable to the judgment below, and we will reverse ‘only when we firmly believe that the judgment is wrong.’ ” In re A.M.C., 32 S.W.3d 155, 158 (Mo.App.2000), quoting In re C.M.D., 18 S.W.3d 556, 560 (Mo.App.2000).

Father presents one point on appeal. He argues that the trial court erred “when it determined that the allegations contained in the petition to terminate parental rights were true and that termination was in the best interest of the juveniles in that there was insufficient evidence for the court to find that the evidence ... demonstrated that [father] had repeatedly or continuously failed, although physically or financially able, to provide the children with adequate food, clothing, shelter, or education as defined by law, or other care and control necessary for their physical, mental, or emotional health and development, and that the conditions which led to the assumption of jurisdiction still persisted, or conditions of a potentially harmful nature continued to exist so that there was little likelihood that the children could be reunited with a parent in the near future.” Father claims the evidence established he “had financially supported his children to the best of his ability, had maintained employment and stable housing, had sought a psychological and psychiatric evaluation, individual counseling, psychiatric care, and participated in parenting classes to improve his parenting skills, anger management classes and H.I.T. No More classes”; that he was thereby in compliance “with the majority of the terms of the proposed treatment plan.” He contends the evidence “clearly indicated that he was interested in and committed to providing his minor children with the 'necessary care, custody and control.”

As this court perceives father’s point on appeal, he does not challenge the statutory grounds the trial court found for terminating parental rights. The ground the trial court found for terminating parental rights was that D.A.F. had been adjudicated as having been abused; that more than one year passed and the conditions that led to the trial court exercising its jurisdiction by taking the children into custody remained. See §§ 211.447.4(2) and (3).

Arguably, father’s point on appeal does challenge the trial court’s determination that it would be in the best interest of the children to terminate parental rights. Whether the record supports the trial court’s determination that termination of parental rights was in the best interest of the children is, therefore, the only issue for appellate review. “An appellate court reviews only issues raised in the points relied on in an appellant’s brief.” State v. Rogers, 973 S.W.2d 495, 498 (Mo.App.1998). See also Villines v. Mier, 58 S.W.3d 921, 924 (Mo.App.2001).

In order for a court to terminate parental rights, it must find that at least one statutory ground for termination of parental rights exists and that termination of parental rights is in the best interest of the child who is before the court. In re K.J.K., 108 S.W.3d 62, 67-68 (Mo.App.2003).

“The determination of what is in a child’s best interests is an ultimate conclusion for the trial court based on the totality of the circumstances.” In re K.J.K., [supra]. It is a subjective assessment of evidence that is not reweighed by appellate review. In re K.K.J., 984 S.W.2d 548, 554 (Mo.App.1999).... [A]ppellate review of evidence with respect to a child’s best interest is undertaken to determine if an abuse of judicial discretion occurred.

In re D.L.W., 133 S.W.3d 582, 585 (Mo.App.2004).

The factors the trial court considered in determining the best interest of the children and its evaluation of those factors included:

a. The emotional ties to the birth parents. While evidence was presented of ties between the parents and the minor children there were concerns about the health of those ties.... [D]ue to the detrimental effects the visits were having upon the child, [D.A.F.], the visits were ceased at the recommendation of the child’s counselor. Upon report of counsel- or, the child’s behaviors improved upon the cessation of visitation. One child, [A.K.F.], was described as parentified, a condition described as when a child acts in a very adult-like manner, due to the responsibilities placed upon her within the parental home. [D.J.F.] was described a[sic] child with minimal attachment to his parents!.] He presented as co-dependent, someone who felt responsible for the feelings of others rather than his own feelings. The child [K.D.F.] was described as being more bonded to her caseworker than to her mother.
b. The extent to which the parent maintained regular visitation or other contact with the minor child. The father was not allowed contact with the minor children due to a no contact provision of his bond stemming from his pending criminal charges related to the abuse to [D.A.F.], The mother initially was inconsistent in visits, but subsequently began to visit on a more regular basis. Visits between the mother and the children took place after a point in a therapeutic setting. Visits between the mother and [D.A.F.] were suspended altogether in fall of 2002, due to the adverse effects the visits were having on the child, including acting out behaviors at school and home. Those behaviors subsided upon visitation being suspended.
c. The extent of payment by parent for the cost of care and maintenance of the minor child, when financially able to do so, including the time that the minor child was in the custody of [DFS] or other child-placing agency. There mother provided in-kind items of support. Financial support was ordered and the mother has been having those sums withheld from her paycheck. There was no evidence presented that the father provided regular in-ldnd or financial support.
d. Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the children to the parents within an ascertainable period of time. The Children’s Division workers all testified as to the nature and extent of the services offered and worker Adams testified that she believed all of such services had been offered to the parents. Based upon the testimony of the parents and specifically their continuing denial of abuse, the Court finds that even if additional services existed, there is little likelihood that they would enable a return of the children to the parents. As previously found herein, the mother was generally resistant to services and the father did not attempt to take advantage of services until the [sic] after the termination of parental rights petition was filed.
e. Based upon their unwillingness to acknowledge the abuse and their continuing lack of insight into why the children were initially placed in and remained in foster care, the father and the mother have shown a disinterest in and a lack of commitment to the minor children.

The trial court concluded that it would be in the best interest of each of the minor children to terminate parental rights of father and mother.

The trial court’s findings were consistent with testimony of two social workers, two alternative care workers, a clinical psychologist, and a DFS investigator who had worked with the children and with father and mother. This court finds no abuse of judicial discretion in the trial court’s determination that termination of father’s parental rights was in the best interest of the children. The judgment is affirmed.

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

      . References to statutes are to RSMo 2000 unless stated otherwise.

      . "Termination of parental rights can be based upon acts of abuse committed, ‘toward the child or any child in the family by the parent.' § 211.447.2(2)(c), RSMo 1986.” In Interest of P.M., 801 S.W.2d 773, 776 (Mo.App.1991). (Corresponding language to § 211.447.2(2)(c), RSMo 1986, appears at § 211.447.4(2)(c) in RSMo 2000.) PM. suggests that D.G.N. v. S.M., 691 S.W.2d 909, 912 (Mo. banc 1985), best states the reason for allowing termination to proceed based on abuse of a sibling. D.G.N. explains, "We do not believe that the actual physical harm must be present. ‘To require [the] child to suffer the fate of his siblings prior to termination of parental rights would be a tragic misapplication of the law.’ " Id.., quoting In Interest of J.A.J., 652 S.W.2d 745, 749 (Mo.App.1983).

      . For a similar case, see In Interest of T.H., 980 S.W.2d 608 (Mo.App.1998).


text:
    Dolores FOURNIER, Respondent, v. The TREASURER OF The STATE OF MISSOURI, CUSTODIAN OF the SECOND INJURY FUND, Appellant.
    No. ED 85186.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 31, 2005.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Rebecca K. Wright, St. Louis, MO, for appellant.
    Ray A. Gerritzen, St. Louis, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

The Treasurer of the State of Missouri as custodian for the Second Injury Fund (“SIF”) appeals the award of the Labor and Industrial Relations Commission finding Dolores Fournier was permanently and totally disabled as a result of the combination of her preexisting disabilities and her primary injury to her left shoulder and awarding her compensation from the SIF.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the award pursuant to Rule 84.16(b).


text:
    Gary Lee WEEKLEY, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 26409.
    Missouri Court of Appeals, Southern District, Division Two.
    June 1, 2005.

      Mark A. Grothoff, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Asst. Atty. Gen., Jefferson City, for respondent.
   JOHN E. PARRISH, Presiding Judge.

Gary Lee Weekley (movant) was convicted, following a jury trial, of the class C felony of receiving stolen property. § 570.080. See State v. Weekley, 92 S.W.3d 327 (Mo.App.2002). He was charged as, found to be, and sentenced as a persistent offender. § 558.016.3. Following incarceration, movant filed a motion for post-conviction relief as permitted by Rule 29.15. An evidentiary hearing was held, after which the motion court entered findings of fact and conclusions of law and denied the motion. Movant appeals the denial of his Rule 29.15 motion. This court affirms.

Movant contends he received ineffective assistance of counsel at trial in his criminal case and in the direct appeal of that case. He claims his trial counsel rendered ineffective assistance because he failed to call Kim Poole as a witness and failed to have an expert witness who testified about the value of the water heater that was the subject of the trial examine the water heater. Movant claims his appellate counsel was ineffective because he did not assert on appeal that the evidence was not sufficient to establish that movant knew or believed the water heater he sold was stolen.

Section 570.080 provides, as applicable to movant’s case:

1. A person commits the crime of receiving stolen property if for the purpose of depriving the owner of a lawful interest therein, he receives, retains or disposes of property of another knowing that it has been stolen, or believing that it has been stolen.
3. Receiving stolen property is a class A misdemeanor unless the property involved has a value of one hundred fifty dollars or more, or the person receiving the property is a dealer in goods of the type in question, in which cases receiving stolen property is a class C felony.

The opinion in movant’s direct appeal sets forth the facts that resulted in his criminal charge and conviction. Facts applicable to the issues raised in this appeal are stated in the discussion that follows of the points movant asserts regarding the denial of his Rule 29.15 motion.

Appellate review of a Rule 29.15 motion is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). “Findings and conclusions are deemed clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made.” State v. Gilpin, 954 S.W.2d 570, 575 (Mo.App.1997).

Roberson v. State, 989 S.W.2d 192, 193 (Mo.App.1999).

Movant’s first point argues that the motion court erred in denying his Rule 29.15 motion because he received ineffective assistance of counsel in the direct appeal of his criminal case in that his appellate counsel failed to assert that there was insufficient evidence to support mov-ant’s conviction for the offense of receiving stolen property. Movant argues that the evidence at trial was not sufficient to establish he knew or believed the water heater that was the subject of the criminal case had been stolen; that had this issue been raised in the direct appeal his conviction would have been reversed.

The motion court found:

In Movant’s Motion, Movant alleged ... that he received ineffective assistance of counsel due to appellate counsel failing to assert on direct appeal that the evidence was insufficient to support Movant’s conviction in that no evidence was presented to prove that Movant knew or believed the water heater had been stolen. In order to support a claim of ineffective assistance of appellate counsel, 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 it. Moss v. State, 10 S.W.3d 508 (Mo.banc [20]00). This is clearly not the case and Movant is grasping at straws.

In Hutchison v. State, 150 S.W.3d 292 (Mo. banc 2004), the court held:

To support a claim of ineffective assistance of appellate counsel, strong grounds must exist showing that counsel failed to assert a claim of error that would have required reversal had it been asserted and that was so obvious from the record that a competent and effective appellate lawyer would have recognized and asserted it.

Id. at 303.

Evidence at trial included that in October 2000, movant possessed a water heater that was the basis of his being charged with receiving stolen property. Movant sold the water heater to John and Vauda Lineberry for $40. Movant told the Line-berrys the water heater was from mov-ant’s old trailer house. Mr. and Mrs. Li-neberry contacted the sheriffs office to determine if the water heater was stolen property. They learned that on July 31, 2000, the water heater had been discovered missing from a cabin that belonged to Eugene Holloway and Robert Coon, Jr.

Because direct evidence that a defendant knew or believed property was stolen is seldom available, the state normally is forced to rely on circumstantial evidence to prove a defendant had knowledge that the property was stolen. See State v. Langdon, 110 S.W.3d 807, 813 (Mo. banc 2003). Evidence of unexplained possession of recently stolen property is a “circumstance that the jury is entitled to consider together with the other facts and circumstances in the case.” State v. Gardner, 741 S.W.2d 1, 9 (Mo. banc 1987), cert. denied, 486 U.S. 1025, 108 S.Ct. 2001, 100 L.Ed.2d 232 (1988).

In addition to possessing the water heater, movant was deceptive about its origin and sold the water heater for a price below its market value. The motion court found that appellate counsel was not ineffective in failing to assert on appeal that the evidence was not sufficient to support a finding that movant knew or believed the water heater had been stolen. The motion court concluded that a competent and effective appellate lawyer would not have determined that such a claim would require reversal on appeal. That finding is not clearly erroneous. Point I is denied.

Points II and III are claims of ineffective assistance of trial counsel. Point II complains that movant’s trial counsel was ineffective because he failed to call Kim Poole as a witness for movant at the trial of movant’s criminal case. Point III argues that trial counsel was ineffective in not having defense expert witness, Charles Fiske, examine the water heater prior to trial of the criminal case “so that he could make a credible determination of its value.”

To prevail on his claim of ineffective assistance of counsel, movant must have proven, by a preponderance of evidence, that his trial counsel’s performance was deficient and that the deficient performance prejudiced the outcome in his case (as opposed to showing the deficient performance had some conceivable effect on the outcome). Strickland, v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
A movant “must satisfy both the performance prong and the prejudice prong to prevail on an ineffective assistance of counsel claim.” Sanders v. State, [738 S.W.2d 856, 857 (Mo.banc 1987) ], (emphasis in original). However, a court need not determine the performance component of the test before examining for prejudice. Id.; State v. Woods, 861 S.W.2d 326, 333 (Mo.App.1993)....

Reece v. State, 891 S.W.2d 863, 866 (Mo.App.1995).

Movant’s trial counsel testified at the evidentiary hearing on movant’s Rule 29.15 motion. He stated that the decision not to call Ms. Poole was a strategy decision on his part. Movant’s trial counsel concluded that Ms. Poole would not be a credible witness. Movant’s trial counsel was asked if the decision not to call Ms. Poole was “based on the fact that she had an SIS on a felony conviction that she completed probation on and a misdemean- or DWI[.]” He answered that after investigation, he did not call her “because of her convictions and some other reasons at the time” that he did not recall.

The motion court found:

In Movant’s motion, Movant alleged ... that he received ineffective assistance of counsel due to trial counsel’s failure to investigate and call as a witness at trial Kim Poole, Movant’s former wife, who had prior criminal convictions. Movant presented no credible evidence that he directed trial counsel to call Kim Poole as a witness. Trial counsel testified that he did not believe Kim Poole to be a credible witness and as a matter of trial strategy, elected not to call her as a witness upon consultation with Movant. Trial counsel’s failure to call Kim Poole as a witness at trial appears to the Court to have been the exercise of sound legal reasoning and strategy. It is well settled that the decision not to call a witness, the testimony of whom counsel believes would not unqualifiedly support defense, is virtually unchallengeable on a claim of ineffective assistance of counsel. Matt v. State, 992 S.W.2d 269 [ (Mo.App.1999) ].

“The selection of witnesses and the introduction of evidence are questions of trial strategy and the mere choice of trial strategy is not a foundation for finding ineffective assistance of counsel.” Sanders v. State, 738 S.W.2d 856, 858 (Mo. banc 1987). There was no showing that mov-ant’s trial counsel’s decision not to call Ms. Poole was anything but trial strategy. Absent such a showing, a decision not to call a witness will not support overturning a conviction on the basis of ineffective assistance of counsel. State v. Walden, 861 S.W.2d 182, 186 (Mo.App.1993). The motion court’s finding with regard to trial counsel’s decision not to call Kim Poole as a witness at movant’s trial was not clearly erroneous. Point II is denied.

The state presented trial testimony of three witnesses regarding the value of the water heater. Robert Coon, Jr., one of the owners of the cabin from which the water heater had been taken, estimated the value of the water heater was $200. Another owner of the cabin, Eugene Holloway, testified the value of the water heater was $182.

Greg Peters was the third witness the state called to testify about the value of the water heater. Peters was an owner of Peters Supply Company in Marble Hill, Missouri. He testified that his company provided heating and air conditioning services, plumbing fixtures, and plumbing repair. He sold and installed the water heater at the cabin owned by Mr. Coon and Mr. Holloway. He testified that the sales price of the water heater was $183 when it was installed; that the price was sold “at a highly discounted price” because it was sold with other equipment. He estimated its value when movant sold it to have been in the range of $160. He was asked if, in his opinion, the water heater was worth more than $150 “the date that it was recovered.” He answered that it was.

Charles Raymond Fiske testified at trial on behalf of movant. He stated that he was a plumbing contractor. Mr. Fiske testified that if he were going to sell a two-year old water heater, the same brand as the one in question, he would “sell it for about $50.00.” He testified that $40 would not be an unreasonable price for that type of water heater that was two years old. On cross-examination, Mr. Fiske stated he had not looked at the particular water heater that was the subject of the trial.

The motion court found:

In Movant’s Motion, Movant alleged ... that he received ineffective assistance of counsel due to trial counsel’s failure to show the actual water heater in question to defense expert Charles Fiske before trial so he could make a credible determination of its value. All estimates of value of the water heater exceeded $150.00 with the exception of the value appraisal of defense expert Charles Fiske. Mr. Fiske testified as to value based on prevailing market value for a used water heater. The State established value through opinion testimony of two of the owners and the expert testimony of Greg Peters, all of whom had observed the water heater. It is possible that Mr. Fiske would not have been able to give sworn testimony that he estimated the value of the water heater as $40.00 if he had actually viewed it. This is particularly true in consideration of the fact that there was testimony concerning add-ons to the water heater such as “sand frogs” which certainly increased its value.

Movant’s trial counsel testified at the evidentiary hearing that he had not shown the water heater to Mr. Fiske before the trial because he did not believe there was any need to do so. He recalled that the matter of Fiske having not examined the water heater was addressed at trial in the state’s closing argument but did not recall what was discussed.

In order to find that movant’s trial counsel was ineffective in not having movant’s expert witness look at the water heater that was the subject of the trial for purposes of determining its value, this court would have to find that had the witness examined the water heater, the outcome of the criminal case would have been different. This court does not find a basis in the record before it for such a determination.

Appellate courts do not weigh the evidence of cases before them on appeal. Clark v. Quality Dairy Co., 400 S.W.2d 78, 80 (Mo.1966). The jury in the trial court had sufficient evidence to determine the value of the water heater. There is no indication that Mr. Fiske’s estimate of the value of the water heater would have been different from that which he gave at trial.

The motion court concluded that mov-ant’s trial attorney’s decision that there was no reason to show the water heater to Mr. Fiske prior to Mr. Fiske’s testimony was not ineffective assistance. The motion court’s findings were not clearly erroneous in that regard. This court is not left with a definite and firm impression that a mistake was made. See Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). Point III is denied. The judgment denying mov-ant’s Rule 29.15 motion is affirmed.

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

      . References to statutes are to RSMo 1994.

      . Movant contends on appeal that Ms. Poole would have testified that he purchased the water heater from her stepson. Ms. Poole testified at the evidentiary hearing. She said she did not witness the purchase movant contended he made, but would have testified that she helped prepare a receipt for the sale; that she saw the receipt after the transaction was completed.


text:
    Salvatore MAGGIO, Appellant, v. LASALLE PARTNERS ASSET MANAGEMENT, LTD., and Dillard’s, Inc., Respondents, and Construction Developers, Inc., Defendant.
    No. WD 64165.
    Missouri Court of Appeals, Western District.
    June 7, 2005.
    Ray Edward Sousley and Stephen Bradley Small, Kansas City, for appellant.
    Casey Owen Housley, Kansas City, for respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge, and VICTOR C. HOWARD, Judge.
   ORDER

Salvatore Maggio appeals the circuit court’s judgment dismissing with prejudice his petition for damages arising from personal injury because of his repeated failure to comply with the circuit court’s orders and the Rules of Civil Procedure. We affirm. Rule 84.16(b).


author: EDWIN H. SMITH, Chief Judge.

text:
    NATIONAL HERITAGE ENTERPRISES, INC., Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 64201.
    Missouri Court of Appeals, Western District.
    June 7, 2005.

      Jean H. Maylack and Richard G. Hau-ser, St. Louis, MO, for appellant.

      Marilyn Green and Cynthia A. Quetsch, Jefferson City, MO, for respondent.
    Before EDWIN H. SMITH, C.J., and HOWARD and HOLLIGER, JJ.
   EDWIN H. SMITH, Chief Judge.

National Heritage Enterprises, Inc., appeals from the decision of the Labor and Industrial Relations Commission (Commission) that the payments made to its employee, Lynda Ridley, for performing certain after-hours services for the appellant were considered wages subject to state unemployment taxes, pursuant to the Missouri Employment Security Law, §§ 288.010-.390.

The appellant raises two points on appeal. In both points, it claims that the Commission erred in concluding that the payments made to Ridley for performing the after-hour services were wages subject to state unemployment taxes. It claims in both points that the Commission erred in so concluding because its supporting finding, that the after-hours services performed by Ridley constituted employment, as defined in § 288.034, rather than services performed by an independent contractor, was not supported by competent and substantial evidence.

We reverse.

Facts

In May of 1996, Ridley became a full-time employee of the appellant, a holding company with corporate offices in St. Louis, Missouri. The appellant controls a number of subsidiaries, including Memorial Services Life Insurance Company (Memorial), which also has corporate offices in St. Louis. Specifically, Ridley worked full time for Memorial as a paralegal from May of 1996 until July of 2001. At some point in 1999, Ridley and the appellant agreed that, in addition to working a 40-hour week at Memorial’s corporate offices as a paralegal, she would do additional work for the appellant during the evenings and on weekends.

The appellant’s arrangement with Rid-ley came to the attention of the Division when it performed a random audit of the appellant’s payroll records. On June 1, 2001, Robin Cleveland, the Division auditor, reported her findings, in which she described Ridley’s duties as a paralegal, and the additional work Ridley performed on evenings and weekends:

Lynda stated that her normal job duties for [Memorial] was [sic] essentially legal research and maintaining (insurance) agent licensing and funeral director licensing research. At the conclusion of her day, one of the vice-presidents, Nicki Provence, would have a stack of work available for her to take home. This work was varied in nature and included notations about what was to be done to it, including completion dates or special needs. Lynda described it generally as being anything you could do on her computer at home. This included producing a manager’s manual, designing flyers and inserts, document preparation and the reconciling of changing rate structures on insurance policies. She mentioned that she even helped in the acquisition of a New York condo for one of the owners. She stated that folder was 1½" thick and required her to prepare financial statements and tax returns and document asset agreements.
Lynda stated they had agreed upon a flat rate of $525/week (for most of 2000) regardless of the number of hours worked. There was no report on hours worked/week or project. They just always made sure there was enough work there for her to take home. Lynda stated that if the workload became overwhelming she would only take what she could. She had Nicki Provence’s home number if she had any problems or required clarification on a job. She worked evenings and weekends as her workload demanded and her husband had minimal involvement.

Cleveland concluded that, in performing the after-hours services for the appellant, Ridley “was under sufficient direction and control so as to constitute employment effective 1.1.1999. This remuneration is considered wages and is reportable and taxable.” On June 25, 2001, the Division mailed the appellant its determination that the payments which Ridley received for the additional services which she performed on evenings and weekends were wages for the purpose of the Missouri Employment Security Law and were subject to unemployment insurance taxes.

The appellant filed an administrative appeal, pursuant to § 288.130. On February 17, 2004, the Appeals Tribunal heard the appeal by telephone conference. During the telephone conference, Ridley testified that, in 1995, she had started a sole proprietorship, R & L Enterprises, doing office work and document preparation at home. According to Ridley, sometime in 1999, she told Provence about R & L Enterprises and offered its services to make some needed revisions in the appellant’s corporate manuals and procedure books after hours. Ridley testified that Provence agreed to the arrangement, and the work assignments were “put into a central location [in the corporate office] because there were other independent contractors but the work was put into a central location and you were free to take what you wanted to do.”

Ridley testified that, in addition to document preparation, the after-hours work which Ridley performed for the appellant included picking up clients at the airport and cleaning the corporate suite and apartment. She also testified that, other than when her husband or son would do the driving to and from the airport, she performed all of the services offered by R & L Enterprises herself. R & L Enterprises had five clients in addition to the appellant. Ridley testified that she spent, on the average, fifteen hours a week performing services for the appellant in her capacity as R & L Enterprises and twelve hours a week performing services for other clients. Ridley testified that she used her own computer and office supplies for the work that she performed at home, and she purchased the supplies which she used in cleaning the corporate suites and apartment. In 1999, she purchased a limousine which she used to pick up corporate clients at the airport. Ridley’s document preparation and cleaning services were not advertised. However, her limousine services were advertised in the telephone directory, local publications, and on business cards.

Ridley received two weekly checks from the appellant: one of which was made out to her and represented her salary for her full-time position at Memorial, the other of which was made out to “Linda Ridley d/b/a R & L Enterprises.” State and federal taxes were not withheld from the latter check. Initially, the check made out to “Linda Ridley d/b/a R & L Enterprises” was between $380 and $400 a week. Then, in 2000, the amount increased to $525 per week.

On February 24, 2004, the Appeals Tribunal issued its decision affirming the June 25, 2001, determination of the Division that, in working for the appellant in her capacity as R & L Enterprises, Ridley was functioning as an employee rather than an independent contractor. The Appeals Tribunal’s decision included the following findings and conclusions:

The appellant has the burden of proving that the additional work performed during the evenings and weekends by Linda Ridley was as an independent contractor.
The appellant cannot change an employee into an independent contractor just by a name change or a label. The Tribunal is not convinced that the office work Ms. Ridley took to complete on her home computer was any different in nature than the work she was assigned by her supervisors in her full time salaried administrative paralegal position. The same supervisors left notes and directions for the completion of the work she took home. She called them at home and asked for assistance in order to complete the work. The only difference was that she was not assigned a specific project; she was allowed to choose from the stack which task she cared to work on at home.
The services she performed under the business name R & L Enterprises were highly integrated to the appellant’s businesses. She performed the services herself and there was no evidence that she hired assistants. The relationship between the appellant and Ms. Ridley was ongoing and continuing.
Some of the factors suggest an independent contractor relationship. The appellant did not withhold taxes from the weekly checks issued to R & L Enterprises. The appellant did not require time sheets or invoices for payment. Ms. Ridley used her own computer and office supplies for the work she performed at home. She could work whatever evening or weekend hours she desired. R & L Enterprises was listed in the phone book. But these factors are outweighed by the factors mentioned before which support an employer-employee relationship. A paralegal that performs legal research and document preparation is required to be supervised by an attorney. The supervision is required whether the work is performed at home or at the office. The Tribunal is not persuaded that Ms. Ridley made policy and handbook revisions without the appellant’s management retaining the right to control her work.
In the judgment of the Tribunal the relationship of the appellant and Linda Ridley dba R & L Enterprises was that of an employer and employee. Therefore beginning January 1, 1999 ... the remuneration paid to Linda Ridley dba R & L Enterprises for specialized office support constituted “wages” in “employment” within the meaning of those terms as defined in Sections 288.034 and 288.036 of the RSMo.

On April 30, 2004, the Commission adopted the decision of the Appeals Tribunal. The appellant then appealed the Commission’s decision to this court, pursuant to § 288.210.

This appeal followed.

Standard of Review

Our review of the Commission’s decision is governed by § 288.210, which provides, in pertinent part:

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, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

Quik ’N Tasty Foods, Inc. v. Division of Employment Sec., 17 S.W.3d 620, 623-24 (Mo.App.2000). Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record. Dolgencorp, Inc. v. Zatorski, 134 S.W.3d 813, 817 (Mo.App.2004) (citing Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence. Id. (citing Hampton, 121 S.W.3d at 223). Furthermore, on appeal, we are not bound by the Commission’s conclusions of law or the Commission’s application of law to the facts. McClelland v. Hogan Pers., LLC, 116 S.W.3d 660, 664 (Mo.App.2003).

I.

In Point I, the appellant claims that the Commission erred in concluding that the payments the appellant made to Ridley for performing after-hours services were wages subject to state unemployment taxes, as defined by § 288.036, because its supporting finding, that the after-hours services performed by Ridley constituted employment, as defined in § 288.034, rather than services performed by an independent contractor, was not supported by competent and substantial evidence. Specifically, it claims that the “twenty-factor test,” used for distinguishing between an employee and an independent contractor, when applied to the work performed by Ridley for the appellant after hours: housecleaning and limousine services on evenings and weekends, clearly weighed in favor of a finding that Ridley was an independent contractor.

Pursuant to the Missouri Employment Security Law, §§ 288.010-.390, employers are required to make unemployment tax contributions for their employees, but not for independent contractors. Quality Med. Transcription, Inc. v. Woods, 91 S.W.3d 181, 184-85 (Mo.App.2002). A “right of control” test is used to determine whether an individual is an employee or an independent contractor, as set forth in § 288.034.5:

Service performed by an individual for remuneration shall be deemed to be employment subject to this law unless it is shown to the satisfaction of the division that such services were performed by an independent contractor. In determining the existence of the independent contractor relationship, the common law of agency right to control shall be applied. The common law of agency right to control test shall include but not be limited to: If the alleged employer retains the right to control the manner and means by which the results are to be accomplished, the individual who performs the service is an employee. If only the results are controlled, the individual performing the service is an independent contractor.

Under the “right of control” test, the Division must follow “the common law rules applicable in determining the employee-employer relationship under 26 U.S.C. § 3306®.” 8 C.S.R. 10-4.150(1). The Division must also consider the case law, Internal Revenue Service (IRS) regulations, and the IRS letter rulings interpreting § 3306®. Id.

In Revenue Ruling 87-41, the IRS identified twenty factors to consider in classifying an individual as an employee or independent contractor, a.k.a., the “twenty-factors test.” Quality Med. Transcription, Inc., 91 S.W.3d at 185. Those factors are: (1) instructions; (2) training; (3) integration; (4) services rendered personally; (5) hiring, supervising, and paying assistants; (6) continuing relationship; (7) set hours of work; (8) full time required; (9) doing work on employer’s premises; (10) order or sequence set; (11) oral or written reports; (12) payment by horn’, week, month; (13) payment of business and/or traveling expenses; (14) furnishing of tools and materials; (15) significant investment; (16) realization of profit or loss; (17) working for more than one firm at a time; (18) making service available to general public; (19) right to discharge; and (20) right to terminate. Rev. Rui. 87-41, 1987-1 C.B. 296.

Missouri courts routinely apply the twenty-factor test in determining the nature of the employment relationship for purposes of tax liability. Quality Med. Transcription, Inc., 91 S.W.3d at 185. The twenty factors are guides or aids in determining the nature of the employment relationship, and are not the only factors to consider. Klausner v. Brockman, 58 S.W.3d 671, 680 (Mo.App.2001). The twenty factors are not intended to serve as a bright-line rule with no flexibility, but rather are indices of control in determining employment status. Id. No single factor is conclusive, but some may be more important than others depending upon the industry and context in which the services are performed. Quality Med. Transcription, Inc., 91 S.W.3d at 185. The focus of the inquiry must be the degree to which the employer has the “right to control the manner and means of performance.” Id.

A. Factor 1 — Instructions

1. Instmctions. A worker who is required to comply with other persons’ instructions about when, where, and how he or she is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed has the right to require compliance with instructions.

With respect to the “instructions” factor, the right to control is manifested in control over the “when, where and how” work is completed. Kirksville Pub. Co. v. Div. of Emp. Sec., 950 S.W.2d 891, 897 (Mo.App.1997).

1. Document Revision Services

As to “how,” the evidence in this case is that the corporate secretary would have a stack of possible assignments, with notes attached indicating what changes were to be made in corporate manuals that needed to be revised or updated. The record indicates that the appellant did not exercise control over the manner or methodology by which those changes were made. Control over the result of Ridley’s work, but not over the manner in which Ridley performed that work, favors independent contractor status. Id.

As to “when,” the evidence is that at least some of the possible assignments had deadlines, but Ridley testified that she “never took anything that required a stringent timeline because I did have other people that I did things for.” The existence of a deadline, without a requirement of specific hours to be worked, indicates control over the result of Ridley’s work, but not over the manner in which Ridley performed that work, which favors independent contractor status. Id.

As to “where,” the record indicates that the appellant did not instruct her to make the revisions at any specific location. On the contrary, Ridley testified that, when her own computer broke down, she worked on a computer in the public library, which was acceptable to the appellant. The fact that the site where Ridley worked was not chosen by the appellant favors independent contractor status. Fritts v. Williams, 992 S.W.2d 375, 381 (Mo.App.1999).

2.Cleaning and Limousine Services

As to “how,” the record indicates that the appellant did not exercise control over the manner in which those services were carried out. As to “when,” the record indicates that the appellant did not exercise control over when Ridley cleaned the corporate suites, and her limousine service was obviously dictated by airport arrival times. As to “where,” the nature of the work dictated that.

In light of the foregoing, the first factor, instructions, clearly favors independent contractor status.

B.Factor 2 — Training

2. Training. Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods, indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner.

The record indicates that the appellant did not train Ridley on editing or revising manuals, cleaning corporate suites, or providing limousine services. Consequently, this factor favors independent contractor status. Fritts, 992 S.W.2d at 381.

C.Factor 3 — Integration

3. Integration. Integration of the worker’s services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business.

The integration factor refers to whether a business could continue without the contribution of the services in question; as such, integral services are more likely to be subject to the business’ control. Kirksville Pub. Co., 950 S.W.2d at 898.

Here, the continuation of the appellant’s business does not depend, to an appreciable degree, upon the contribution of Rid-ley’s after-hour services. Moreover, an independent contractor is just as capable of performing the document revision, cleaning, and limousine services performed by Ridley as are employees, which cuts against a finding that Ridley’s services were integrated into the business operations of the appellant. Id. This factor favors independent contractor status.

D.Factor 4 — Services Rendered Personally

4. Services Rendered Personally. If the services must be rendered personally, presumably the person or persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the results.

While the record indicates that Ridley personally made all the revisions to the manuals, she also testified that, on occasion, her husband and son would handle the limousine jobs. In any event, there is no indication in the record that the appellant ever actually required that Ridley personally perform the assigned work, so this factor favors independent contractor status. Quality Med. Transcription, Inc., 91 S.W.3d at 187.

E.Factor 5 — Hiring, Supervising, and Paying Assistants

5. Hiring, Supervising, and Paying Assistants. If the person or persons for whom the services are performed hire, supervise, and pay assistants, that factor generally shows control over the workers on the job. However, if one worker hires, supervises, and pays the other assistants pursuant to a contract under which the worker agrees to provide materials and labor under which the worker is responsible only for the attainment of a result, this factor indicates an independent contractor status.

While Ridley’s husband and son occasionally assisted in providing limousine services, there is nothing in the record that they were “hired,” “supervised,” or “paid,” by either Ridley or the appellant. The appellant claims that this factor is not applicable to this case, although it is arguable that it actually favors independent contractor status. See Stover Delivery Sys. v. Div. of Employment Sec., 11 S.W.3d 685, 692 (Mo.App.1999) (holding that independent contractor status is favored when the evidence establishes that the worker at issue was not precluded from subcontracting out the work).

F.Factor 6 — Continuing Relationship

6. Continuing Relationship. A continuing relationship between the worker and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular' intervals.

The parties agree that this factor favors employer/employee status in that in addition to performing the after-hour services, the record indicates that Ridley worked a 40-hour week as a permanent employee of the appellant.

G.Factor 7 — Set Hours of Work

7. Set Hours of Work. The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control.

The parties agree that this factor favors independent contractor status in that the appellant did not set hours for the after-hour services provided by Ridley.

H.Factor 8 — Full Time Required

8. Full Time Required. If the worker must devote substantially full time to the business of the person or persons for whom the services are performed, such person or persons have control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor on the other hand, is free to work when and for whom he or she chooses.

Ridley testified that, in her capacity as the principal of R & L Enterprises, she spent 15 hours a week working for the appellant and 12 hours a week working for other clients. Fifteen hours a week is not “full time,” so this factor favors independent contractor status. The respondent makes the specious argument that this factor favors employer/employee status because, combined with the 40 hours a week which Ridley spent in her regular employment with the appellant, she devoted a total of 55 hours a week to the appellant’s business. However, logic and common sense dictate that the “full time” factor refers solely to the specific work in dispute in a particular case, which in this case constitutes 15 hours a week.

I.Factor 9 — Doing Work on Employer’s Premises

9. Doing Work on Employer’s Premises. If the work is performed on the premises of the person or persons for whom the services are performed, that factor suggests control over the worker, especially if the work could be done elsewhere. Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the worker is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform such services on the employer’s premises. Control over the work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass a territory within a certain time, or to work at specific places as required.

The parties agree that this factor favors independent contractor status in that the bulk of the work performed by Ridley in the revising and updating of corporate manuals was performed at home.

J.Factor 10 — Order or Sequence Set

10. Order or Sequence Set. If a worker must perform services in the order or sequence set by the person or persons for whom the services are performed, that factor shows that the worker is not free to follow the worker’s own pattern of work but must follow the established routines and schedules of the person or persons for whom the services are performed.

The parties agree that this factor favors independent contractor status.

K.Factor 11 — Oral or Written Reports

11. Oral or Written Reports. A requirement that the worker submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control.

There is no indication in the record that Ridley was required to submit regular or written reports to the appellant concerning her after-hour services. Consequently, this factor favors independent contractor status.

L.Factor 12 — Payment by Hour, Week, Month

12. Payment by Hour, Week, Month. Payment by the hour, week, or month generally points to an employer-employee relationship, provided that this method of payment is not just a convenient way of giving a lump sum agreed upon as the cost of a job. Payment made by the job or on a straight commission generally indicates that the worker is an independent contractor.

Ridley received two weekly checks from the appellant, one of which was made out to her and represented her salary for her full-time position at Memorial, and the other of which was made out to “Linda Ridley d/b/a R & L Enterprises.” State and federal taxes were not withheld from the latter check. Initially, the check made out to “Linda Ridley d/b/a R & L Enterprises” was between $380 and $400 a week. Then, in 2000, the amount was increased to $525 per week. This regularity of payment favors employee status. Quality Med. Transcription, Inc., 91 S.W.3d at 188-89.

M.Factor 13 — Payment of Business and/or Traveling Expenses

13. Payment of Business and/or Traveling Expenses. If the person or persons for whom the services are performed ordinarily pay the worker’s business and/or traveling expenses, the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker’s business activities.

Ridley testified that, with respect to her document revision services, she paid for her own expenses. With respect to the cleaning of the corporate suites, Ridley testified:

Q. All right. Now when you did the cleaning did anybody provide you with cleaning supplies?
A. Usually I purchased them.
Q. Were you—
A. And—
Q. Were you reimbursed?
A. Not — not always. No.
Q. Well, sometimes were you?
A. I’m trying to think. No. For — no. No.

The respondent argues that this exchange indicates that Ridley “wavered” in her testimony. However, a fair reading of the exchange indicates that she clarified her position. In any event, there is no indication in the record that the appellant used the issue of expenses to exercise control over the manner and means of her work, so this factor favors independent contractor status. Kirksville Pub. Co., 950 S.W.2d at 898-99.

N.Factor 14 — Furnishing Tools and Materials

14.Furnishing Tools and Materials. The fact that the person or persons for whom the services are performed furnished significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship.

The record indicates that Ridley furnished her own tools, materials, and other equipment, including the computer, paper and ink for the printer, which she used at home to edit and revise corporate manuals; the supplies for cleaning the corporate suites; and the vehicles used for the limousine service. This factor favors independent contractor status. Quality Med. Transcription, Inc., 91 S.W.3d at 189.

0.Factor 15 — Significant Investment

15. Significant Investment. If the worker invests in facilities that are used by the worker in performing services and are not typically maintained by employees (such as maintenance of an office rented at fair market value from an unrelated party), that factor tends to indicate that the worker is an independent contractor. On the other hand, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for such facilities and, accordingly, the existence of an employer-employee relationship. Special scrutiny is required with respect to certain types of facilities, such as home offices.

With respect to Ridley’s document revision and limousine services, she did not have any significant investment in facilities because she worked out of her home and used her own limousine. At the same time, she was not dependent on the appellant for a place to perform her services, so these circumstances are neutral, not weighing clearly in either party’s favor. Quality Med. Transcription, Inc., 91 S.W.3d at 189. With respect to Ridley’s cleaning services, the factor is inapplicable, because the corporate suites were not being provided as a workspace for the purpose of control.

P.Factor 16 — Realization of Profit or Loss

16. Realization of Profit or Loss. A worker who can realize a profit or loss as a result of the worker’s services (in addition to the profit or loss ordinarily realized by employees) is generally an independent contractor, but the worker who cannot is an employee. For example, if the worker is subject to a real risk of economic loss due to significant- investments or a bona fide liability for expenses, such as salary payments to unrelated employees, that factor indicates that the worker is an independent contractor.

With respect to her document production services, Ridley had no significant investments apart from computer equipment that she could also use personally, which favors employee status. Quality Med. Transcription, Inc., 91 S.W.3d at 189-90. The record also indicates that, in 1999, Ridley purchased a limousine for. her transportation services. However, given Ridley’s testimony about the significant quantity of work that was always available to her, her potential for losses was remote, so this factor favors employee status. Fritts, 992 S.W.2d at 384.

Q.Factor 17 — Working for More than One Firm at a Time

17.Working for More Than One Finn at a Time. If a worker performs more than de minimis services for a multiple of unrelated persons or firms at the same time, that factor generally indicates that the worker is an independent contractor. However, a worker who performs services for more than one person may be an employee of each of the persons, especially where such persons are part of the same service arrangement.

The parties agree that this factor favors independent contractor status in that Rid-ley testified that, in doing business as R & L Enterprises, she performed services for at least five clients, and that she spent an average of 12 hours a week on these services for other clients.

R.Factor 18 — Making Services Available to General Public

18. Making Services Available to General Public. The fact that a worker makes his or her services available to the general public on a regular and consistent basis indicates an independent contractor relationship.

Ridley’s document production and cleaning services were not advertised. However, her limousine services were advertised in a telephone directory, local publications, and on business cards. This factor does not weigh clearly in either party’s favor, so we treat it as being neutral. Quality Med. Transcription, Inc., 91 S.W.3d at 189.

S.Factor 19 — Right to Discharge

19. Right to Discharge. The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer’s instructions. An independent contractor, on the other hand, cannot be fired so long as the independent contractor produces a result that meets the contract specifications.

When asked whether there was a negative consequence to her if the appellant were not satisfied with the work that she did in her capacity as R & L Enterprises, Ridley replied that there was no penalty or consequence, other than the risk that she would not get additional assignments in the future. This feature of the arrangement resembles an independent contractor relationship in that an owner, if dissatisfied with a contractor’s performance on one project, is free to offer no future project to the contractor. Fritts, 992 S.W.2d at 384-85. On the other hand, the duration of the arrangement between the appellant and Ridley in her capacity as R & L Enterprises was not tied to a particular project or to a specified period of time, a feature which resembles an employer/employee relationship. Travelers Equities v. Div. of Emp. Sec., 927 S.W.2d 912, 925 (Mo.App.1996). Because conflicting conclusions can be drawn from the facts of this case, we hold this factor to be neutral. Fritts, 992 S.W.2d at 385.

T. Factor 20—Right to Terminate

20. Right to Terminate. If the worker has the right to end his or her relationship with the person for whom the services are performed at any time he or she wishes without incurring liability, that factor indicates an employer-employee relationship.

Ridley testified that, if she received an assignment from the appellant, and either could not do it or could not find someone else to do it, there was no penalty or negative consequences. In other words, she indicated that she would not incur liability for a project left uncompleted, so this factor favors employee status. Quality Med. Transcription, Inc., 91 S.W.3d at 190.

In this court’s analysis, at least twelve factors, and arguably thirteen, clearly favor independent contractor status for Ridley’s after-hours work for the appellant, while only four favor employer/employee status. The remaining three factors are either neutral or not applicable. Thus, there are three times as many factors favoring independent contractor status as there are factors favoring employer/employee status. While we are mindful that this court cannot rest its decision merely on a numerical count of factors, Travelers Equities, 927 S.W.2d at 925, we, nevertheless, determine that the great weight of the evidence in the whole record favors the conclusion that Ridley was acting as an independent contractor, rather than an employee, in her after-hours work for the appellant. This is because the great weight of the evidence establishes that, while the appellant had control over the result of Ridley’s work, it did not have control over the manner in which she performed that work. Kirksville Pub. Co., 950 S.W.2d at 897. Accordingly, the decision of the Commission must be reversed.

We note that, in its decision, the Appeals Tribunal relied primarily on a finding that it was “not convinced” that Ridley’s after-hours services were “any different in nature” than her full-time duties as a paralegal. This finding is against the overwhelming weight of the evidence. The testimony in the record is that Ridley’s after-hours services consisted of revising corporate manuals and other documents, cleaning the corporate suites and apartment, and providing limousine services. These services were distinguishable from Ridley’s duties as a paralegal, which, as the respondent acknowledges in its brief, consisted of “making applications for and research of the licensing for the company’s insurance agents and funeral directors, and maintaining of files for those licenses.” Consequently, we need not address the question of how our analysis might change if, in fact, Ridley was doing the same work in both her full-time employment and her after-hours services.

II.

In Point II, the appellant makes the same claim of error as it does in Point I, except on a different basis. Given our resolution of Point I in favor of the appellant, this point is moot. A claim of error is moot if resolution of the claim has no practical effect on the outcome of the appeal. Cline v. Teasdale, 142 S.W.3d 215, 224 (Mo.App.2004).

Point denied.

Conclusion

The decision of the Commission, affirming the decision of the Appeals Tribunal, that the payments the appellant made to Ridley for performing after-hour services were wages subject to state unemployment taxes, as defined by § 288.036, is reversed.

HOWARD and HOLLIGER, JJ., concur.

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

      . In its brief, the respondent argues that "the Commission did not believe Ms. Ridley’s testimony regarding the nature of the work she did at home for Appellant.” However, such a claim is contradicted by the fact that the Appeals Tribunal adopted, in its findings of fact, Ridley’s own description of her after-hours services for the appellant.


text:
    STATE of Missouri ex rel. Linda BURTON, et al., Respondents, v. Bobby J. LAWTON, Appellant.
    No. WD 64609.
    Missouri Court of Appeals, Western District.
    June 7, 2005.
    Before THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN and PATRICIA A. BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Mr. Bobby Lawton appeals the denial of his request for attorney’s fees from the State pursuant to section 536.087.

For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    In the Interest of C.H. & C.H., Plaintiffs. Juvenile Officer, Respondent, v. R.L.H. (Mother), Appellant, E.H. (Father), Defendant, J.B. (Father), Defendant.
    Nos. WD 64720, 64721.
    Missouri Court of Appeals, Western District.
    June 7, 2005.
    John R. Brage, St. Joseph, MO, for appellant.
    Chad Stewart, St. Joseph, MO, for respondent.
    David R. Schmitt, St. Joseph, MO, for plaintiffs.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.
   ORDER

PER CURIAM.

This is a consolidated appeal from two judgments of the Circuit Court of Buchanan County, Juvenile Division, terminating the rights of R.L.H. (“Mother”) to parent her two minor children, C.L.H. and C.J.H. We hold that the circuit court properly found grounds for termination of Mother’s parental rights to both children pursuant to section 211.447.4(3), RSMo 2000, and that termination was in the best interests of the children. The judgments are affirmed. Rule 84.16(b).


text:
    HOUSING AUTHORITY OF THE CITY OF ST. JOSEPH, MISSOURI, Respondent, v. COINMACH CORPORATION, d/b/a Allied Laundry Equipment Company, Appellant.
    No. WD 64581.
    Missouri Court of Appeals, Western District.
    June 7, 2005.
    Stephen Girard Mirakian, Kansas City, for Appellant.
    Leroy C. Tieman, St. Joseph, for Respondent.
    Before JAMES M. SMART, JR., Presiding Judge, RONALD R. HOLLIGER, Judge, and LISA WHITE HARDWICK, Judge.
   ORDER

Coinmach Corporation appeals from a trial court judgment in favor of the St. Joseph Housing Authority. We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no precedential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Rule 84.16(b).


text:
    Theodore SOLIS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64281.
    Missouri Court of Appeals, Western District.
    June 7, 2005.
    Andrew Allen Schroeder, Appellate Defender Office, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels and Shawn Naccarato, Office of Attorney General, Jefferson City, for Respondent.

      Before JAMES M. SMART, JR., Presiding Judge, RONALD R. HOLLIGER, Judge, and LISA WHITE HARDWICK, Judge.
   ORDER

Theodore Solis appeals the denial, without evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no precedential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Rule 84.16(b).