author: LAMBERT, Judge. KELLER, Judge,

text:
    Glenn BROWN, Appellant, v. LOUISVILLE JEFFERSON COUNTY REDEVELOPMENT AUTHORITY, INC. and Louisville/Jefferson County Metro Government, Appellees.
    No. 2008-CA-001890-MR.
    Court of Appeals of Kentucky.
    April 9, 2010.
    Garry R. Adams, Louisville, KY, for appellant.
    Grover C. Potts, Jr., Louisville, KY, for appellee.
    Before ACREE, KELLER, and LAMBERT, Judges.
   OPINION

LAMBERT, Judge.

Glenn Brown appeals from the entry of a summary judgment order in favor of Louisville Jefferson County Redevelopment Authority, Inc., (hereinafter “LRA”) and Louisville/Jefferson County Metro Government (hereinafter “Metro Government”) entered by the Jefferson Circuit Court on September 15, 2008. This order dismissed all of Brown’s claims against LRA and Metro Government. On appeal, Brown argues that the trial court erred in dismissing his claims of promissory estop-pel/detrimental reliance and fraud arising from an employment relationship between Brown and LRA/Metro Government. After careful review, we agree with Brown that summary judgment in Appellees’ favor was premature as to these claims. We therefore must vacate that portion of the trial court’s order and remand this matter for further proceedings. Brown does not appeal the trial court’s dismissal of his claims of racial discrimination, and thus we hereby affirm those portions of the trial court’s order.

Since this appeal addresses the propriety of a summary judgment decree, we will recite the facts in a light most favorable to Brown. See Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991) (“The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.”).

In 1995, the federal government decided to close the Naval Ordinance Station in Louisville. Thereafter, the City of Louisville and Jefferson County established LRA, a Kentucky non-profit, non-stock corporation and local development authority. The purpose of LRA was to plan and implement the conversion of this Naval Ordinance Station into a private facility owned by the authority. See Kentucky Revised Statutes (KRS) 58.180. LRA’s Articles of Incorporation provide as follows:

[The LRA] is organized and operated exclusively to act as an agency, instrumentality and constituted authority of the City of Louisville (“City”) and Jefferson County (“County”) to accomplish public purposes of the City and the County and for the acquisition and financing of public projects for and on behalf of the City and the County. In carrying out its corporate purposes, the [LRA] shall have all the powers allowed corporations by KRS 273.160 et seq. and KRS 58.180.

From 1996 to 2003, LRA managed and operated the Naval Ordinance Station, which was renamed Technology Park. During this time, Brown served as LRA’s Finance Administrator for Technology Park. On October 1, 2003, LRA entered into a management agreement with a private company, Titan Research and Development, LLC (hereinafter “Titan”). Pursuant to this agreement, Titan was to assume all management and operations duties for Technology Park. Brown’s position with LRA was therefore eliminated.

Upon the elimination of his Finance Administrator position, Brown transitioned into another position with LRA. He was hired as a liaison between LRA and Titan. However, LRA directed that only part of Brown’s work time was to be devoted to liaison duties. Pursuant to an agreement entered into by LRA and Titan, Brown was to devote up to fifty percent (50%) of his work time providing administrative services directly to Titan. LRA was reimbursed by Titan for fifty percent (50%) of the expenses, including salary, attributed to Brown. This agreement was terminated by Titan on October 1, 2005. As a result, Brown’s liaison position with LRA was eliminated, effective July 21, 2006.

Upon the elimination of his liaison position with LRA, Brown was offered the position of Economic Development Officer with the Metro Government’s Development Authority. However, Brown declined to accept the position.

In November 2006, Brown filed a complaint against LRA and Metro Government asserting claims of promissory estoppel/detrimental reliance, fraud, and violations of the Kentucky Civil Rights Act. In his complaint, Brown stated that when he realized that his Finance Administrator position was being eliminated in 2003, he negotiated and was offered a position with Titan in their finance department.

Upon hearing of this job offer, Bruce Traughber, a LRA board member and secretary of the Metro Government Community Development Cabinet, contacted Brown and counter-offered him the liaison position. Brown stated that he would accept the liaison position in lieu of the position with Titan, but only if LRA would agree to employ him “long enough to get his 10 years in for [government] retirement and benefits.” Ten years for Brown would have accrued in November 2007. Brown further alleged that “[i]t was understood between the parties that once the 10 years lapsed, Brown would become a 100% Titan employee.”

According to Brown, Traughber agreed to this arrangement. Brown contends that the agreement with Titan whereby Brown was to devote fifty percent (50%) of his time providing administrative services to Titan and fifty percent (50%) of his time acting as a liaison between the two entities was subsequently entered to accomplish the objectives agreed to by Brown and Traughber.

In July 2005, Traughber made public remarks that were critical of Titan. At that time, Brown contacted David Morris, Director of the Metro Government Development Authority, and asked him whether his job was in danger. According to Brown, Morris assured him that it was not. Yet, on July 22, 2006, Brown’s liaison position was eliminated. Brown states that he declined the position of Economic Development Officer with the Development Authority because it was a “demotion to the West End of Louisville.”

In an order entered September 15, 2008, the trial court dismissed Brown’s claims for promissory estoppel/detrimental reliance and fraud arising from the alleged oral agreement between Brown and Traughber. In so ruling, the trial court found that Traughber’s alleged promise to provide Brown employment through his retirement date was not a “date certain for continued employment.” Thus, Brown was an “at-will” employee subject to termination at any time. The trial court alternatively found that Brown did not provide “any reciprocal consideration” for the promise allegedly made by Traughber. As such, the trial court concluded that “the condition that LRA is required to retain Mr. Brown beyond his retirement date without the imposition of a corresponding duty on Mr. Brown to remain with LRA is a unilateral, unenforceable agreement .... ”

On appeal, Brown contends that summary judgment was not warranted on his claims of promissory estoppel/detrimental reliance and fraud. Our black-letter law directs that “summary judgment is to be cautiously applied and should not be used as a substitute for trial.” Steelvest, 807 S.W.2d. at 483. “Even though a trial court may believe the party opposing the motion may not succeed at trial, it should not render a summary judgment if there is any issue of material fact.” Id. at 480.

Designed to be narrow and exacting so as to preserve one’s right to trial by jury, summary judgment is nevertheless appropriate in cases where the non-moving party relies on little more than “speculation and supposition” to support his claims. O’Bryan v. Cave, 202 S.W.3d 585, 588 (Ky.2006) (internal citation omitted). Thus, non-moving parties are obligated to set forth “at least some affirmative evidence showing that there is a genuine issue of material fact for trial” to withstand a properly supported motion for summary judgment. Steelvest, 807 S.W.2d at 482. “The party opposing summary judgment cannot rely on their own claims or arguments without significant evidence in order to prevent a summary judgment.” Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky.2001).

Brown argues on appeal that the trial court erred in concluding that the facts of this case were not sufficient as a matter of law to support a finding that Brown was promised employment for a definite term. He further argues that the trial court erred as a matter of law in determining that the agreement, if made, was “a unilateral, unenforceable agreement.”

We agree with Brown that the facts, when viewed in a light most favorable to him, are susceptible to a conclusion that Brown was promised employment by an LRA representative for a definite term— through November 2007 when Brown became eligible for retirement benefits. Neither the trial court nor Appellees cite to any applicable authority indicating that a contrary conclusion is mandated as a matter of law.

We further agree with Brown that the trial court erred in determining that Brown’s claims were precluded as a matter of law because he failed to provide additional “reciprocal consideration” for Traughber’s promise of continued employment. To support its ruling, the trial court cited to Louisville & N.R. Co. v. Wells, 289 Ky. 700, 160 S.W.2d 16 (1942). In Wells, Kentucky’s highest court held that a breach of contract action could not be sustained between an employee and employer where the employer’s promise to retain the employee for a definite period of time was not supported by a reciprocal promise by the employee to continue in service to the employer for the prescribed time period. Id. at 18; see also Clark v. Cincinnati, N.O. & T.P. Ry. Co., 258 Ky. 197, 79 S.W.2d 704, 706 (1935) (enforceable contracts for definite periods of time “should show obligation on the part of the employee to render service for a fixed period and reciprocal obligation on the employer’s part to retain the employee’s services”).

However, in Shah v. American Synthetic Rubber Corp., 655 S.W.2d 489 (Ky.1983), the above rule was modified. In Shah, the Kentucky Supreme Court joined “a number of other jurisdictions which hold that parties may enter into a contract of employment terminable only pursuant to its express terms ... by clearly stating their intention to do so, even though no other considerations than services to be performed or promised, is expected by the employer, or performed or promised by the employee.” Id. at 492.

Moreover, the Kentucky Supreme Court’s holding in United Parcel Service Co. v. Rickert, 996 S.W.2d 464 (Ky.1999), precludes summary dismissal of Brown’s claims for the reasons set forth in the trial court’s order regardless of whether the term promised to Brown was definite or indefinite. In Rickert, a pilot prevailed on claims of fraud and promissory estoppel resulting from an oral representation made by a potential employer. Id. at 467. The pilot was promised future indefinite employment with United Parcel Service if he continued work for another airline during a transition period. Id. at 468-69. Due to the pilot’s detrimental reliance on this false oral promise, the pilot forwent other employment opportunities and was damaged as a result. Id. In affirming the jury’s verdict on appeal, the Kentucky Supreme Court held that these circumstances were sufficient to sustain a verdict of fraud against United Parcel Service. Id. at 468.

Like Rickert, Brown alleges that he was defrauded by a potential employer who knowingly made misrepresentations to him for the purpose of inducing him to forgo another job opportunity. The pilot in Ric-kert was permitted to prevail on his fraud allegations even though he provided no reciprocal consideration to United Parcel Service other than his agreement to forgo other employment opportunities. In light of the holdings set forth in Rickert and Shah, if a jury should believe Brown’s testimony that LRA knowingly induced Brown to forgo another job opportunity by expressly agreeing to employ him for a specified period of time, then Brown’s failure to provide additional “reciprocal consideration” is not a bar to his claim. Therefore, the trial court’s reasoning is not sufficient to support its dismissal of Brown’s fraud and promissory estop-pel/detrimental reliance claims.

As it concerns Brown’s claim of promissory estoppel/detrimental reliance, it should be noted that the alleged contract in this case was not capable of being performed within one year and was not in writing. In Sawyer v. Mills, 295 S.W.3d 79 (Ky.2009), the Kentucky Supreme Court expressed an intent to move away from the broad implications of the Rickert holding as it relates to oral representations in violation of the Statute of Frauds. Id. at 89-90 (despite contrary language in Ric-kert, claims of breach of contract and promissory estoppel likely cannot defeat statute of frauds); see KRS 371.010 (agreements that are not to be performed within one year are not enforceable unless they are in writing).

Yet, neither the parties nor the trial court have raised or addressed the Statute of Frauds issue in this ease. Other issues raised by the parties, but never addressed by the trial court, include whether LRA was entitled to governmental immunity from Brown’s claims and whether LRA was liable for any promises it made to Brown in light of the fact that Brown was actually employed by Metro Government, not the LRA. The trial court has also not considered any of the specific elements of fraud and whether Brown has set forth sufficient evidence to support each of these elements. See Radioshack Corp. v. ComSmart, Inc., 222 S.W.3d 256, 262 (Ky.App.2007) (plaintiff must establish by clear and convincing evidence six elements in order to prevail on a claim for fraud). Accordingly, we decline to devote any additional consideration to these issues as it is unlikely we have authority to do so. See Commonwealth v. Mande, 15 S.W.3d 376, 379-80 (Ky.2000) (court is limited to review of those issues raised and ruled on by trial court); Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky.1989) (“The Court of Appeals is without authority to review issues not raised in or decided by the trial court.”). In any event, this task is best reserved for the trial court as it is in the best position to consider any additional arguments presented to it on remand and to address these arguments with appropriate findings.

Accordingly, we hereby vacate the portion of the September 15, 2008, order of the Jefferson Circuit Court dismissing Brown’s claims of promissory estoppel/det-rimental reliance and fraud. We hereby affirm the portion of the order which dismissed Brown’s claims of racial discrimination. This case is remanded to the circuit court for further proceedings consistent with this opinion.

ACREE, Judge, concurs.

KELLER, Judge, concurs in part, dissents in part, and files separate opinion.

KELLER, Judge,

concurring in part and dissenting in part.

I respectfully concur in part and dissent in part. The majority affirmed the trial court’s dismissal of Brown’s claims of racial discrimination. Because Brown has not appealed the trial court’s dismissal of those claims, I concur.

The majority reversed the trial court’s summary judgment as to Brown’s claims of promissory estoppel/detrimental reliance. Again, I concur. Having reviewed the record, it is unclear to me whether Brown’s employer, be it Metro Government or LRA, promised Brown continued employment in the position he held in 2003 or just continued employment in some capacity. In his complaint, Brown states that he was offered employment in the same position at the same pay rate. However, in his deposition he testified only to a promise of continued employment. If the promise was of continued employment in the same position with the same pay, then Brown has an argument on the issue of promissory estoppel/detrimental reliance. However, if the promise was simply of employment, the employer fulfilled its promise by offering Brown the Economic Development Officer position. In either case, what the terms of any offer of continued employment were is an issue of fact yet to be determined.

The majority also reverses the trial court’s summary judgment as to Brown’s claim of fraud. I must respectfully dissent. A party claiming fraud must establish six elements by clear and convincing evidence: (1) material representation; (2) which is false; (3) known to be false or made recklessly; (4) made with inducement to be acted upon; (5) acted in reliance thereon and, (6) causing injury. United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 468 (Ky.1999).

As noted by the majority, the pilot in Rickert recovered for his claims of fraud and detrimental reliance. However, in Rickert, representatives from United Parcel Service knowingly promised future employment to a number of pilots when they knew that there would not be enough jobs for all of the pilots. Brown has produced no evidence that anyone at Metro Government or LRA knowingly made a false promise of continued employment. The only evidence he has produced is his testimony that he was promised continued employment and that promise was not kept. That testimony, alone, is not sufficient to support a claim of fraud.

Finally, I can find no evidence that Metro Government or LRA asserted the affirmative defense of statute of frauds. See Kentucky Rule of Civil Procedure 8.03. Therefore, I agree with the majority that whether the statute of frauds bars Brown’s claims is better left to the trial court.

      . In 2003, the City and the County merged into the Louisville/Jefferson County Metro Government.

      . The September 15, 2008, order did make the following statement in the context of determining a claim against LRA for racial discrimination under the Kentucky Civil Rights Act, "the evidence of record strongly supports a finding that Mr. Brown was a Metro Government employee assigned to work for LRA.”


source: Caselaw Access Project

author: LAURA DENVIR STITH, Judge.

license: Public Domain

text:
    Donald L. BRYANT, Jr., Appellant, v. SMITH INTERIOR DESIGN GROUP, INC., and William Kopp, Respondents.
    No. SC 90205.
    Supreme Court of Missouri, En Banc.
    March 9, 2010.

      A. Elizabeth Blackwell, John R. Mus-grave, Ryan K. Manger, Thompson Co-burn LLP, St. Louis, for appellant.
    Paul Gerard Lane, Douglas P. Dowd, James M. Dowd, Alex R. Lumaghi, Dowd & Dowd, P.C., St. Louis, for respondents.
   LAURA DENVIR STITH, Judge.

Missouri resident Donald L. Bryant, Jr. filed suit in St. Louis County against two out-of-state defendants, Smith Interior Design Group, Inc. and William Kopp. His amended petition includes counts of fraudulent misrepresentation and fraudulent concealment in Missouri. The trial court found Missouri did not have personal jurisdiction over the defendants and dismissed the suit. Mr. Bryant appeals.

Missouri’s long-arm statute extends to all those who commit tortious acts in Missouri. The petition alleges that Mr. Kopp, acting for Smith Interior, visited Missouri to negotiate interior design services for Mr. Bryant’s New York apartment. Smith Interior thereafter made telephone calls and sent e-mails and fraudulent or misleading documents into Missouri with the intent to defraud Mr. Bryant and to conceal the true nature of Smith Interior’s commission charges, resulting in harm to Mr. Bryant in Missouri. This tortious conduct is sufficient to satisfy Missouri’s long-arm statute. The petition also demonstrates sufficient minimum contacts between defendants and Missouri to satisfy due process and support specific jurisdic-' tion over them in this state. One who attempts to defraud a Missouri resident through mailing fraudulent and misleading documents to him or her in Missouri thereby becomes subject to personal jurisdiction in Missouri for claims arising out of that conduct. For these reasons, the judgment is reversed, and the case is remanded.

/. FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises out of the dismissal of a suit raising claims of fraud and misrepresentation in connection with a business deal between Mr. Bryant, a Missouri resident, and Smith Interior, a Florida corporation, and its president, William Kopp, a resident of Florida.

Mr. Bryant’s first amended petition alleges that at the invitation of Mr. Bryant’s former wife, Mr. Kopp traveled to St. Louis in 2006 to meet with Mr. Bryant to discuss Smith Interior providing interior design services for a New York City co-op apartment Mr. Bryant was considering buying. Acquaintances of Mr. Bryant, for whom Smith Interior previously had provided design services in Missouri, recommended Smith Interior to the Bryants for the design project.

In June 2006, Mr. Bryant purchased the apartment. A year later, in July 2007, Mr. Bryant and Mr. Kopp met — Mr. Bryant does not allege where- — and agreed that Smith Interior would provide design services for the apartment. Based on negotiations with Mr. Kopp, Mr. Bryant believed Smith Interior would charge a commission fee for its design services in the range of the industry standard of 20 to 30%.

Smith Interior began providing design services for the New York apartment, buying furniture and contacting Mr. Bryant by mail at his home in Missouri on at least seven occasions between August and December 2007. These mailings included documents that listed furniture items that Smith Interior had purchased and reflected a price for each item. Mr. Bryant alleges that these charges, although purporting to represent the cost of items purchased, in fact included substantial commissions and miscellaneous fees that purposely were hidden from Mr. Bryant and to which Mr. Bryant had not agreed. When Mr. Bryant expressed his concern, Mr. Kopp’s representative at first refused to provide additional information about the costs. Eventually, Mr. Kopp sent invoices and backup documentation by fax and overnight delivery to Mr. Bryant’s Missouri address. These invoices, Mr. Bryant asserts, revealed that Smith Interior had charged commissions that varied between 3 and 172%, far in excess of the 20 to 30% commissions that Mr. Bryant alleges are normal in the industry and that he had been led to expect.

Unhappy with both the hidden commission rates and the quality of Smith Interi- or’s design services, Mr. Bryant delayed final payment, and the parties exchanged e-mails into early 2008 over the balance due Smith Interior. In February 2008, Smith Interior sent a letter to Mr. Bryant at his Missouri address demanding final payment of the amounts set out in its earlier mailings to Mr. Bryant in Missouri.

The parties were unable to resolve their differences, and in March 2008, Mr. Bryant sued Smith Interior and Mr. Kopp in St. Louis County in a five-count petition asserting: 1) fraudulent misrepresentation; 2) fraudulent concealment; 3) negligent misrepresentation; 4) unjust enrichment; and 5) violation of section 407.025, RSMo 2000 of the Missouri Merchandising Practices Act. Following the filing of a first amended petition, defendants filed a motion to dismiss for lack of personal jurisdiction. They alleged that Mr. Bryant had initiated the contact with Smith Interi- or and that the latter did not purposely avail itself of the privilege of conducting business in Missouri. The trial court dismissed the petition. Mr. Bryant appealed. After decision by the court of appeals, this Court granted transfer. Mo. Const, art. V, § 10.

II. STANDARD OF REVIEW AND PRINCIPLES GOVERNING DISMISSAL FOR LACK OF PERSONAL JURISDICTION

The “sufficiency of the evidence to make a prima facie showing that the trial court may exercise personal jurisdiction is a question of law,” which, on appeal, this Court reviews de novo. Wilson Tool & Die, Inc. v. TBDN-Tennessee Co., 237 S.W.3d 611, 615 (Mo.App.2007), quoting, Stavrides v. Zerjav, 848 S.W.2d 523, 527 (Mo.App.1993); see also State ex rel. Deere & Co. v. Pinnell, 454 S.W.2d 889, 893 (Mo. banc 1970). When personal jurisdiction is contested, “it is the plaintiff who must shoulder the burden of establishing that defendant’s contacts with the forum state were sufficient.” Angoff v. Marion A. Allen, Inc., 39 S.W.3d 483, 486 (Mo. banc 2001). A reviewing court evaluates personal jurisdiction by considering the allegations contained in the pleadings to determine whether, if taken as true, they establish facts adequate to invoke Missouri’s long-arm statute and support a finding of minimum contacts with Missouri sufficient to satisfy due process. Id. at 487; see also Moore v. Christian Fidelity Life Ins. Co., 687 S.W.2d 210, 211 (Mo.App.1984) (“[T]he allegations of the petition are given an intendment most favorable to the existence of the jurisdictional fact”). While a court will consider affidavits if proper ones are filed in connection with the motion to dismiss, Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 n. 3 (Mo. banc 1997), no affidavits were filed here.

III. MR. BRYANTS PETITION ASSERTS SUFFICIENT CONTACTS TO SUPPORT PERSONAL JURISDICTION

Mr. Bryant argues that the circuit court erred in determining that it lacked personal jurisdiction over defendants. Missouri courts employ a two-step analysis to evaluate personal jurisdiction. Conway v. Royalite Plastics, Ltd., 12 S.W.3d 314, 318 (Mo. banc 2000). First, the court inquires whether, the defendant’s conduct satisfies Missouri’s long-arm statute, section 506.500. Id. If so, the court next evaluates whether the defendant has sufficient minimum contacts with Missouri such that asserting personal jurisdiction over the defendant comports with due process. Id.

A. Missouri Long-Arm Statute

Missouri’s long-arm statute provides in relevant part:

1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:
(3) The commission of a tortious act within this state

§ 506.500.1(3). Section 506.500 is construed “to extend the jurisdiction of the courts of this state over nonresident defendants to that extent permissible under the Due Process clause.” State ex rel. Deere, 454 S.W.2d at 892. “[Ejxtraterritorial acts that produce consequences in the state,” such as fraud, are subsumed under the tortious act section of the long-arm statute. Longshore v. Norville, 93 S.W.3d 746, 752 (Mo.App.2002); Schwartz & Assocs. v. Elite Line, Inc., 751 F.Supp. 1366, 1369 (E.D.Mo.1990) (allegation of extraterritorial tortious act that yields consequences in state is “sufficient to support the exercise of personal jurisdiction under the Missouri long-arm statute”).

Here, Mr. Bryant alleges that, by sending false and misleading documents to him in Missouri and by misrepresenting or concealing in subsequent contacts by telephone, e-mail and letter that its commission rates were far in excess of those generally charged in the industry, defendants committed fraudulent and misleading acts in Missouri that subject them to jurisdiction here for claims arising out of those acts. Mr. Bryant’s allegations are sufficient to demonstrate the commission of a tortious act within this state and to place Smith Interior within the reach of Missouri’s long-arm statute.

B. Due Process Minimum Contacts with Missouri

The Fourteenth Amendment’s Due Process Clause bars Missouri courts from exercising personal jurisdiction over a defendant where to do so offends “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotations and citations omitted). Accordingly, absent one of the traditional territorial bases of personal jurisdiction — presence, domicile or consent —a court may assert personal jurisdiction over a defendant only if certain minimum contacts between Missouri and the defendant are established. Id.

When evaluating minimum contacts, the focus is on whether “there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). This inquiry “cannot be simply mechanical or quantitative.” Int’l Shoe, 326 U.S. at 319, 66 S.Ct. 154.

A court has “general jurisdiction” over an out-of-state defendant if the defendant’s connections with the state are systematic, continuous and substantial enough to furnish personal jurisdiction over the defendant based on any cause of action— even one that is unrelated to the defendant’s contacts with the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)

By contrast, a court acquires “specific jurisdiction” over an out-of-state defendant when the court “exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.” Helicopteros Nacionales, 466 U.S. at 414 n. 8, 104 S.Ct. 1868. In some cases, single or isolated acts by a defendant in a state, because of their nature and quality and the circumstances of their commission, provide sufficient minimum contacts to support jurisdiction for liability arising from those acts. See Int’l Shoe, 326 U.S. at 318, 66 S.Ct. 154.

Here, Mr. Bryant asserts that Missouri has specific jurisdiction over the defendants on fraud and misrepresentation claims that arise out of their conduct in Missouri and their contacts with Missouri that have caused effects in this state. In support, Mr. Bryant points to the allegations in his amended petition that Mr. Kopp visited him in Missouri in 2006 to gather ideas for designing the New York apartment. Following up on that meeting, in the fall and early winter of 2007, Smith Interior mailed some seven documents to Mr. Bryant in Missouri, all of which are alleged to contain misrepresentations or fraudulent omissions about fees, commissions and costs that form the basis of Mr. Bryant’s misrepresentation claims. Once Mr. Bryant raised questions about the work and commissions of Smith Interior, the latter allegedly engaged in e-mail and telephone exchanges with Mr. Bryant into Missouri, and sent invoices to Mr. Bryant by fax and overnight delivery into Missouri, in an effort to further the fraud and obtain payment. Mr. Bryant alleges that these allegations support a claim for fraudulent misrepresentation, stating:

Defendants made material misrepresentations to Mr. Bryant in the August, September, November and December Documents sent to Mr. Bryant in St. Louis in connection with their fees and commissions in the decorating of the New York co-op and the costs for the furniture and other household items listed in the August, September, November, and December Documents.

Numerous cases from other jurisdictions have held that the sending of fraudulent documents into a state constitutes a purposeful availment of the privilege of conducting activities within the forum state and provides the minimum contacts necessary to support personal jurisdiction in that state when the claim arises out of those contacts, as it does here. Strikingly similar in relevant respects is Murphy v. Erwin-Wasey, Inc., 460 F.2d 661 (1st Cir.1972), in which the complaint alleged that the New York defendant intentionally misrepresented commission amounts by mailing false statements to the Massachusetts plaintiff. The First Circuit noted:

We would be closing our eyes to the realities of modern business practices were we to hold that a corporation subjects itself to the jurisdiction of another state by sending a personal messenger into that state bearing a fraudulent misrepresentation but not when it follows the .more ordinary course of employing the United States Postal Service as its messenger. ... Where a defendant knowingly sends into a state a false statement, intending that it should there be relied upon to the injury of a resident of that state, he has, for jurisdictional purposes, acted within that state. The element of intent also persuades us that there can be no constitutional objection to Massachusetts asserting jurisdiction over the out-of-state sender of a fraudulent misrepresentation, for such a sender has thereby “purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). 460 F.2d at 664 (emphasis added). Similarly, in FMC Corp. v. Varonas, 892 F.2d 1308, 1309 (7th Cir.1990), the defendant worked for the plaintiff as an office manager in Greece. She defrauded the plaintiff company of thousands of dollars by sending it fraudulent invoices for payment for services that were never performed. Id. at 1310. The Seventh Circuit held that by reaching out to the plaintiff in Illinois, the defendant “should have foreseen that she could be required to answer for her actions in Illinois.” Id. at 1313. The court rejected the defendant’s argument that there was no purposeful availment because her job required her to communicate with the plaintiff in Illinois, stating, “sending communications containing misrepresentations, the basis for jurisdiction in this case, was not part of her job description.” Id. at 1314.

In Oriental Trading Co. v. Firetti, 236 F.3d 938, 941-42 (8th Cir.2001), defendant corporate officers made telephone calls and sent faxes into Nebraska to convince the plaintiff to provide funds to pay estimated duties, but then refused to refund these sums after United States Customs declared there would be no duties. The Eighth Circuit held that by “purposely directing their fraudulent communications at residents of Nebraska, the defendants should have realized that the brunt of the harm would be felt there ... and they should have reasonably anticipated being haled into court there.” Id. at 943; accord, Lewis v. Fresne, 252 F.3d 352, 359 (5th Cir.2001) (“The 'actual content’ of [the defendants’] communications to [the plaintiff] shows purposeful availment of the benefits and protections of Texas law”); Lebel v. Everglades Marina, Inc., 115 N.J. 317, 558 A.2d 1252, 1257 (1989) (“In this case, defendant’s alleged phone calls to New Jersey and use of the mails to solicit the contract would satisfy the minimum-contacts requirement”); Shrout v. Thorsen, 470 So.2d 1222, 1226 (Ala.1985) (“To disallow service of process in cases like this would give persons so inclined a license to put these shams together”).

The principles set out in these cases are directly applicable here. Simply put, the counts in Mr. Bryant’s petition are rooted in allegations that the documents Smith Interior sent to Mr. Bryant in August to December 2007 materially misrepresented and concealed the true costs of Smith Interior’s commissions and fees. The petition alleges that Smith Interior intentionally sent these misleading communications into Missouri in an effort to defraud Mr. Bryant, a Missouri citizen, and that this fraud was furthered by Mr. Kopp’s actual presence in Missouri for initial negotiations and by Smith Interior’s later letters, e-mails and telephone calls. Taking Mr. Bryant’s allegations as true, as this Court must, this case presents a ready example of facts supporting specific jurisdiction. Where “the actual content of communications with a forum gives rise to intentional tort causes of action,” as Mr. Bryant’s petition alleges here, “this alone constitutes purposeful availment.” Lewis, 252 F.3d at 359 (internal quotations and citations omitted).

Nevertheless, Smith Interior says this Court should disregard all of its contacts with Missouri because Mr. Bryant was the one who initiated the business relationship between the parties by asking Mr. Kopp to discuss interior design of the New York apartment. As the Tenth Circuit has noted, however, whether “a ‘party solicited the business interface is irrelevant, so long as defendant then directed activities to the forum residents.’ ” Kennedy v. Freeman, 919 F.2d 126, 129 (10th Cir.1990), quoting, Lanier v. Am. Bd. of Endodontics, 843 F.2d 901, 910 (6th Cir.1988). Were the law otherwise, it effectively would immunize an out-of-state defendant from being haled into court in a state to which it had sent fraudulent communications regardless of the degree of its misconduct and whatever the effects of its fraud in that state. This is not the law.

While “unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State,” Hanson, 357 U.S. at 253, 78 S.Ct. 1228, the fact that someone else initiated the first contact does not mean that the entire course of conduct is considered unilateral. Regardless of who initially called whom, for purposes of personal jurisdiction the dispositive facts are that Smith Interior is alleged to have committed a tortious act in Missouri by intentionally and voluntarily sending fraudulent documents into Missouri in an attempt to defraud a Missouri citizen. Added to this are the defendants’ calls, letters and emails to Missouri, as well as Mr. Kopp’s earlier presence in Missouri in negotiations that ultimately resulted in the agreement that led to this fraud. See Oorah, Inc. v. Schick, Civil Action No. 08-2202(FLW), 2009 WL 198192, at ⅜5 (D.N.J., January 27, 2009) (unpublished opinion) (“Actual presence during pre-con-tractual negotiations ... is generally factored into the jurisdictional determination”).

In light of these contacts, this Court is not left to ponder whether asserting personal jurisdiction over the defendant would be fair. Under the minimum contacts analysis it is essential that “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The defendants in this case reasonably should have anticipated that, by sending fraudulent documents into this state, they would be made to answer in a Missouri court.

IV CONCLUSION

Because defendants’ commission of a tortious act in Missouri brings them within Missouri’s long-arm statute and because defendants have sufficient minimum contacts with Missouri to satisfy due process, their motion to dismiss for lack of personal jurisdiction should have been overruled. Accordingly, the judgment of the trial court is reversed, and the cause is remanded.

All concur.

      . As Smith Interior and Mr. Kopp make a joint due process argument, this opinion, for simplicity, shall refer to them jointly either as "defendants” or as "Smith Interior” unless clarity requires otherwise.

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

      . See State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165, 167 (Mo. banc 1999) (explaining that at one time most “assertions of personal jurisdiction were premised on a defendant’s presence ..., the defendant's domicile ..or consent ...”).

      . The parties cite to a number of Missouri court of appeals cases that utilize a five-factor test in determining whether sufficient minimum contacts exist to satisfy due process: 1) the nature and quality of defendant’s contacts with Missouri; 2) the quantity of those contacts; 3) the relationship of the cause of action to those contacts; 4) the interest of Missouri in providing a forum for its residents; and 5) the convenience or inconvenience of the forum to the parties. By contrast, personal jurisdiction cases decided by this Court neither have required nor, other than a single per curiam decision (in Conway), utilized this approach. Compare Angoff, 39 S.W.3d at 486-88 (no five-factor test); Chromalloy, 955 S.W.2d at 5 (same); State ex rel. William Ranni Assocs., Inc. v. Hartenbach, 742 S.W.2d 134, 137-39 (Mo. banc 1987) (same), with Conway, 12 S.W.3d at 318 (applies five-factor test); Childers v. Schwartz, 262 S.W.3d 698, 702 (Mo.App.2008) (same); Auld v. Adler, 96 S.W.3d 920, 924 (Mo.App.2003) (same).
      While courts can use the five-factor test if it seems useful in a particular case, it is simply a tool to assist them in resolving the ultimate issue whether the defendant has purposely availed itself of the privilege of doing business in this state such that it reasonably could anticipate being haled into court here. To the extent that court of appeals cases suggest that this five-factor approach is required in Missouri, or that it is used commonly in other state and federal courts (other than the Eighth Circuit), they are in error.

      . The elements of fraudulent misrepresentation are: (1) the speaker makes a false, material representation; (2) the speaker knows the representation is false or is ignorant of its truth; (3) the speaker intends that the representation should be acted on by the hearer in the manner reasonably contemplated; (4) the hearer is ignorant of the falsity of the representation; (5) the hearer relies on the representation’s truth; (6) the reliance is reasonable; and (7) the hearer’s reliance on the representation causes injury. Crossland Constr., Co. v. Alpine Elec. Constr., Inc., 232 S.W.3d 590, 592-93 (Mo.App.2007). The facts supporting the fraudulent misrepresentation claim also form the basis of Mr. Bryant's other counts claiming fraudulent concealment, negligent misrepresentation, unjust enrichment and violation of section 407.025.

        . Even when fraud is not alleged, while mailings alone often may not provide a sufficient basis for personal jurisdiction, the minimum contacts analysis "is not susceptible of mechanical application." State ex rel. Nixon v. Beer Nuts, Ltd.., 29 S.W.3d 828, 834 (Mo.App. 2000). It is an ad hoc process; rather than arriving at per se conclusions, the facts of each case must be examined carefully. Where sufficiently significant to a particular cause of action, the mailing of documents into a state has been held adequate to provide the minimum contacts necessary for a court to exercise personal jurisdiction. See, e.g., McGee v. Int'l Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) (upholding jurisdiction over a defendant whose only contacts with the state were mailing an insurance contract and accepting payments from a state resident).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Joseph E. FLEMING, Appellant.
    No. ED 92775.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 6, 2010.
    Jo Ann Rotermund, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, Terrence M. Messonnier, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Joseph Fleming (hereinafter, “Appellant”) appeals from the trial court’s judgment after a jury convicted him of one count of domestic assault in the first degree, Section 565.072 RSMo (2000), one count of armed criminal action, Section 571.015, and one count of domestic assault in the second degree, Section 565.073. Appellant was sentenced to a term of five years’ imprisonment on both domestic assault convictions, and three years’ imprisonment on the armed criminal action conviction, to run concurrently.

Appellant raises four points on appeal. Appellant’s first and third points on appeal challenge the sufficiency of the evidence to support his convictions. Appellant’s second point challenges the admission of a police officer’s testimony as inadmissible hearsay. Appellant’s fourth point claims the trial court violated his constitutional right to a speedy trial.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal. We find no error of law. 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 80.25(b).

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


author: PER CURIAM:

text:
    Louise SWAN, et al., Appellant, v. Connie INGERSOLL, Defendant, Randall Lammers, Respondent.
    No. WD 71252.
    Missouri Court of Appeals, Western District.
    April 13, 2010.
    Lyle L. Odo, for Appellant.
    Timothy D. Tipton, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Louise Swan appeals the judgment of the trial court disbursing settlement proceeds between her attorney, Lyle Odo, and a judgment creditor, Randall Lammers. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


author: GEORGE W. DRAPER, III, Judge.

text:
    Kaylin BOLT, Appellant, v. Gene GIORDANO, Respondent, and John Shelter, Defendant.
    No. ED 93121.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 20, 2010.

      Kaylin Bolt, Fitchburg, WI, for Appellant.
    Thomas A. Spoon, Michelle M. Funken-busch, St. Louis, MO, for Respondent.
   GEORGE W. DRAPER, III, Judge.

Kaylin Bolt (hereinafter, “Bolt”) appeals pro se from the trial court’s judgment in favor of Gene Giordano (hereinafter, “Dealer”) on her petition seeking relief from a vehicle sales contract. Bolt raises three points on appeal. We affirm in part, and reverse and remand in part for further proceedings.

On September 22, 2008, Bolt went to First Capitol Auto Sales, owned by Dealer, to shop for an automobile. Bolt test drove a 2001 Chevy Prizm, listed for sale at $3,100.00. When Bolt test drove the vehicle, the “check engine” light came on. Bolt expressed her concern about the light to John Shelton (hereinafter, “Shelton”), the salesman assisting her. The parties came to an agreement that Dealer would repair the vehicle and ensure it passed the safety and emissions inspection because it was not in compliance with state emissions standards, and Bolt would pay an additional $150.00 for a total purchase price of $3,250.00. Dealer told Bolt if the problem reoccurred, she could return the vehicle and it would be repaired again.

Bolt subsequently signed a bill of sale and made a down payment in the amount of $1,250.00. The bill of sale indicated the vehicle was being sold “as is” and there were no warranties or representations made with respect to the vehicle. The bill of sale also contained a handwritten notation, “Safety and Emissions Inspected.” Bolt left the vehicle at the dealership to be repaired. Bolt made several phone calls over the course of the next four days to Dealer to check on the status of the repairs. On September 26, 2008, the vehicle failed an emissions inspection. Bolt picked up the vehicle from the repair shop to drive it “through the cycles” to prepare it for retesting. The same day, Bolt tendered the remainder of the purchase price to Dealer.

On September 30, 2008, Bolt called the dealership and informed Shelton she was having the vehicle repaired on October 1, 2008. Prior to taking the vehicle back to the original repair shop, Bolt had the vehicle inspected by another mechanic that uncovered three specific emissions defects. After another series of phone calls, Bolt discovered the vehicle failed emissions testing again on October 7, 2008, and two repairs were made in an effort to solve the problem. Bolt retrieved the vehicle from the repair shop on October 9, 2008, and drove it to prepare it for retesting.

During this time, the “check engine” light came on again. Bolt returned the vehicle to the repair shop on October 20, 2008. After additional repairs, the vehicle passed an emissions inspection on October 23, 2008. Shortly after Bolt picked up the vehicle from the repair shop, the “check engine” light came on a third time, and Bolt contacted Dealer about the issue. Bolt returned the vehicle to the repair shop on November 1, 2008, at which time the “check engine” light was cleared. No further repairs were made and she was told the computer system in the vehicle possibly needed to be reprogrammed or reset.

The “check engine” light illuminated for a fourth time on November 3, 2008. Bolt repeatedly called Shelton and Dealer about the issue, but it was not resolved. Bolt then attempted to return the vehicle to the dealership for a refund of the purchase price, but was told it would be towed at her own expense if she left it at the dealership. After failing a subsequent emissions test, Bolt had the vehicle examined at a different repair shop. At this time, it was discovered the vehicle still suffered from the three specific emissions defects Bolt’s mechanic found on September 30, 2008. Bolt received an estimate for the repairs, but was unable to have the repairs completed. Bolt stopped driving the vehicle shortly thereafter.

Bolt sent two certified letters attempting to document and resolve the dispute with Dealer and Shelton; however, the first letter was unclaimed and the second one was refused. Bolt then filed a consumer complaint against Dealer with the Attorney General. Bolt’s complaint included an allegation that she had not received title or other paperwork related to the vehicle. In response, Dealer indicated he had “completely filled [his] obligation” to Bolt and “wants no further involvement” with her. The Attorney General declined to take action on Bolt’s complaint after Bolt chose to file suit against Dealer.

Bolt filed a pro se petition seeking “relief from contract” against Dealer and Shelton on February 13, 2009, bringing three counts for relief. In her first count, Bolt alleged Dealer violated Section 643.315.4(3) RSMo (Cum.Supp.2008) when he sold the vehicle without first receiving a certificate of compliance with state emissions standards, and failed to include specific statutory language in the sales contract notifying her of the right to return the vehicle within ten days of sale. Bolt alleged the absence of this language rendered the sales contract void. In her second count, Bolt alleged Dealer violated Section 301.210.4 RSMo (2000) when he did not convey title to the vehicle to her at the time of purchase or any time thereafter. Bolt alleged this violation rendered the contract void and constituted a fraudulent practice. In her final count, Bolt averred Dealer violated Section 407.020 in that the allegations raised in her first two counts constituted unlawful practices, requiring the trial court to enter an award for actual damages, attorney’s fees, and punitive damages.

Bolt dismissed Shelton from the suit without prejudice on May 14, 2009. Dealer filed an answer denying all of Bolt’s allegations and averring all three counts failed to state a claim upon which relief could be granted. On June 2, 2009, the same day Dealer filed his answer, a bench trial was held on Bolt’s claims. Bolt proceeded pro se while Dealer was represented by counsel. After hearing testimony and receiving exhibits, the trial court entered its judgment in favor of Dealer, denying all of Bolt’s claims. Bolt appeals.

Initially, we must address Dealer’s request to dismiss Bolt’s brief for failure to comply with Rule 84.04. Pro se appellants are held to the same standards as those represented by counsel, and their briefs must comply with the rules of appellate procedure. Patterson v. Dierbergs Mkts., Inc., 280 S.W.3d 787, 788 (Mo.App. E.D.2009). Failure to comply with Supreme Court Rules constitutes grounds for dismissal. Kuenz v. Walker, 244 S.W.3d 191, 193 (Mo.App. E.D.2007). “It is not for lack of sympathy but rather it is necessitated by the' requirement of judicial impartiality, judicial economy and fairness to all parties.” Id. (quoting Thornton v. City of Kirkwood, 161 S.W.3d 916, 919 (Mo.App. E.D.2005)).

Bolt’s pro se brief contains several deficiencies which could constitute grounds for dismissal. However, we may exercise discretion to review a deficient brief and the points therein so long as “the deficiency ‘does not ... impede disposition on the merit s.’ ” State v. Bledsoe, 178 S.W.3d 648, 653 (Mo.App. W.D.2005)(quoting State v. Yole, 136 S.W.3d 175, 178 (Mo.App. W.D.2004)). The deficiencies complained of by Dealer do not impede the disposition of the appeal; thus, we will address Bolt’s points on their merits. See Hudson v. State, 270 S.W.3d 464, 467 (Mo.App. S.D.2008).

This Court reviews court-tried cases pursuant to the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the judgment unless it is not supported by the evidence, is against the weight of the evidence, erroneously declares the law, or erroneously applies the law. Id. We view all of the evidence and the reasonable inferences therefrom in the light most favorable to the judgment and disregard all contrary evidence and inferences. Cannon v. Monroe, 285 S.W.3d 375, 381 (Mo.App. E.D.2009). When neither party requests the entry of findings of fact or conclusions of law, we assume the trial court resolved all issues of fact in accordance with the result reached. Rule 73.01(c); Jackson v. Cannon, 147 S.W.3d 168, 170 (Mo.App. S.D.2004). Therefore, we will affirm the judgment on any reasonable theory within the pleadings that is supported by the evidence. Pepsi Midamerica v. Harris, 232 S.W.3d 648, 653 (Mo.App. S.D.2007).

In her first point, Bolt argues the trial court erred in denying her claim for damages pursuant to Section 643.315.4(3). Specifically, Bolt claims Dealer violated this section because the sales contract failed to conspicuously disclose that she had a right to return the vehicle within ten days of purchase for repair or a mutually acceptable agreement regarding the repairs when the vehicle was not in compliance with state emission standards. Dealer argues Section 643.315.4(2) applies instead, and the evidence presented shows he was in full compliance with that subsection.

There is no Missouri case law discussing this statute. Statutory interpretation is an issue of law; therefore, no deference is due to the trial court’s judgment and we review the issue de novo. City of Richmond Heights v. Waite, 280 S.W.3d 770, 774 (Mo.App. E.D.2009). “The primary rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning.” South Metro. Fire Prot. Dist. v. City of Lee’s Summit, 278 S.W.3d 659, 666 (Mo. banc 2009)(quoting State v. McLaughlin, 265 S.W.3d 257, 267 (Mo. banc 2008)). “The corollary to this rule is that a court should not interpret a statute so as to render some phrases mere sur-plusage.” Middleton v. Missouri Dept. of Corr., 278 S.W.3d 193, 196 (Mo. banc 2009).

Section 643.315.4(1) gives a licensed motor vehicle dealer the option of selling any vehicle subject to state inspection requirements with or without a prior inspection. If the dealer chooses to sell the vehicle with a prior inspection, subdivision (2) of Section 643.315.4 applies. Section 643.315.4(l)(a). Section 643.315.4(2) states:

If the dealer chooses to sell the vehicle with prior inspection and approval, the dealer shall disclose, in writing, prior to sale, whether the vehicle obtained approval by meeting the emissions standards established pursuant to [S]ections 643.300 to 643.365 or by obtaining a waiver pursuant to [S]ection 643.335. A vehicle sold pursuant to this subdivision by a licensed motor vehicle dealer shall be inspected and approved within the one hundred twenty days immediately preceding the date of sale, and, for the purpose of registration of such vehicle, such inspection shall be considered timely-

If the dealer chooses to sell the vehicle without a prior inspection, subdivision (3) of Section 643.315.4 applies. Section 643.315.4(l)(b). Section 643.315.4(3) states in pertinent part:

If the dealer chooses to sell the vehicle without prior inspection and approval, the purchaser may return the vehicle within ten days of the date of purchase, provided that the vehicle has no more than one thousand additional miles since the time of sale, if the vehicle fails, upon inspection, to meet the emissions standards specified by the commission and the dealer shall have the vehicle inspected and approved without the option for a waiver of the emissions standard and return the vehicle to the purchaser with a valid emissions certificate and sticker within five working days or the purchaser and dealer may enter into any other mutually acceptable agreement. If the dealer chooses to sell the vehicle without prior inspection and approval, the dealer shall disclose conspicuously on the sales contract and bill of sale that the purchaser has the option to return the vehicle within ten days, provided that the vehicle has no more than one thousand additional miles since the time of sale, to have the dealer repair the vehicle and provide an emissions certificate and sticker within five working days if the vehicle fails, upon inspection, to meet the emissions standards established by the commission, or enter into any mutually acceptable agreement with the dealer. A violation of this subdivision shall be an unlawful practice as defined in section 407.020, RSMo_

Bolt argues the controlling factor in determining which of these two subdivisions applies is whether the vehicle received a certificate of compliance with state emission standards within one hundred twenty days prior to the time of sale. Dealer disagrees, arguing the central inquiry should be to determine who agreed to pay for the emission inspection prior to the sale. Dealer argues if the car dealer agrees to pay for the emission inspection then Section 643.315.4(2) applies. Our reading of the statute and the unique facts of this transaction compel us to disagree with both arguments.

It is evident Dealer intended to sell the vehicle without a prior inspection despite his assertion to the contrary. Dealer admitted the vehicle was not in compliance with state emissions standards at the time Bolt test drove the vehicle, before she signed the bill of sale, and after she tendered the full purchase price. Thus, Dealer could not be operating under Section 643.315.4(2) in that the statute required the vehicle “shall be inspected and approved within the one hundred twenty days immediately preceding the date of sale.... ” Dealer failed to comply with this statute because there was no valid inspection one hundred twenty days prior to the sale.

We cannot say, however, that Section 643.315.4(3) would apply by default. We agree with Dealer that this subdivision puts the onus on the purchaser to obtain the emissions inspection if the vehicle is sold without a prior inspection. However, before purchasing the vehicle, Bolt actively negotiated with Dealer and Shelton about who would be responsible for the repairs that were needed for the vehicle to pass inspection. The parties reached an agreement that Dealer would repair the vehicle and ensure it passed the safety and emissions inspection. In exchange for the repairs and inspection, Bolt paid $150.00 in addition to the purchase price, and was told if the problem reoccurred, she could return the vehicle and it would be repaired again. Thus, Dealer accepted the burden of obtaining the emissions inspection and all necessary repairs, which placed the transaction outside of the scheme contemplated by Section 643.315.4(3).

Thus, we find the course of dealings between the parties takes them outside of the purview of both subdivisions. Therefore, we find the trial court did not err in denying Bolt’s claim for relief pursuant to Section 643.315.4(3) because that subdivision did not apply to this transaction. Bolt’s first point is denied.

In her second point, Bolt argues the trial court erred in denying her claim for damages pursuant to Section 301.210.4 RSMo (2000). Bolt asserts Dealer’s failure to convey a certificate of title to her at the time she accepted delivery of the vehicle violated this section and rendered the transaction void.

In order to transfer ownership of a vehicle properly, Missouri law requires the seller to assign the certificate of ownership to the purchaser. Shivers v. Carr, 219 S.W.3d 301, 303 (Mo.App. S.D.2007). Section 301.210.4 states:

It shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless, at the time of the delivery thereof, there shall pass between the parties such certificates of ownership with an assignment thereof, as provided in this [S]ection, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.

“Missouri is a strict title state, which means assignment of the certificate of title in the manner provided by statute is the exclusive and only method of transferring title to a motor vehicle.” Jackson, 147 S.W.3d at 172. The statutory requirements of Section 301.210 are absolute, mandatory, and must be enforced rigidly. Shivers, 219 S.W.3d at 303-04; Okello v. Beebe, 930 S.W.2d 40, 43 (Mo.App. W.D.1996). Our Supreme Court has explained the importance of strict compliance with Section 301.210 because this section is:

a special statute, a police regulation “of the highest type” with which “absolute technical compliance” is required, the provisions of which are “rigidly enforced” and as to which there are “no exceptions to conform to intentions.” The statute is “drastic, mandatory, and intended as a police regulation in the interest of the public welfare to prevent traffic in stolen automobiles,” “to aid in the apprehension of criminals, and to protect the innocent and guileless from the machinations and wiles of the wicked.”

Id. at 304 (quoting State v. Glenn, 423 S.W.2d 770, 774 (Mo.1968)) (internal citations omitted). Bolt bears the burden of proving Dealer failed to deliver the title in order to invalidate the transaction. Rice v. Fanners & Merchs. Ins. Co., 800 S.W.2d 96, 97-98 (Mo.App. S.D.1990).

It is undisputed Bolt never received a certificate of title for the vehicle despite paying the full purchase price and having physical possession of the vehicle. Dealer makes much of the fact that delivery never occurred because he did not authorize Bolt to pick up the vehicle from the repair shop after it failed several emissions inspections so that the vehicle could be driven for retesting. This argument is disingenuous given there was no evidence presented Dealer took any steps to repossess the vehicle or to prevent Bolt from picking up the vehicle at the repair shop. Nevertheless, we need not resolve this issue because regardless of the time of delivery, it is undisputed Bolt tendered the full purchase price, had physical possession of the vehicle, and demanded title in her complaint to the Attorney General. Dealer responded that he had fulfilled his obligations and wanted no further involvement with Bolt; yet Dealer still retains title to the vehicle.

A party’s failure to comply with Section 301.210.4 results in a void and fraudulent sale, where ownership does not pass. Shivers, 219 S.W.3d at 304. Moreover, a putative purchaser does not even acquire a right to possess the motor vehicle unless he or she receives a properly-endorsed certificate of title, even if accompanied by full payment or physical delivery of possession. Citizens Nat’l. Bank v. Manes County Bank, 244 S.W.3d 266, 273 (Mo.App. S.D.2008). Bolt did not acquire title to the vehicle and had no right of ownership or right to possess the vehicle.

That being said, Bolt is not without a potential remedy. Dealer asserts in his brief that “there is no evidence in the record to refute the existence of an executory contract ...” in response to Bolt’s argument that the transaction was void. “The mere fact that such a transaction is ‘executory’ does not render it a valid and enforceable agreement of sale.” Greer v. Zurich, Ins., 441 S.W.2d 15, 26 (Mo.1969). Generally, a valid contract cannot arise out of transactions which are statutorily prohibited. Id. Given the legislature’s effort to curtail the trafficking of stolen vehicles, and its intent to outlaw sales without a proper assignment of the certificate of ownership as fraudulent, it would be contrary to public policy to find the sales contract valid and enforceable. Id.

Nevertheless, “Missouri cases have recognized the remedy of repudiation and allowed plaintiffs to repudiate purported contracts in cases where Section 301.210 was not followed, despite the fact that the purported contracts were void.” Shivers, 219 S.W.3d at 304. As such, “[a] contract for the sale of a motor vehicle registered under Missouri law without assignment and delivery of the certificate of title is unlawful and may be repudiated while the transaction remains executory in that the title documents have not been delivered.” Reddish v. Heartland Auto Plaza, 197 S.W.3d 634, 637 (Mo.App. S.D.2006); Greer, 441 S.W.2d at 25. “[Repudiation of an executory contract occurs when a party to the contract manifests a positive intention, by word or deed, not to perform.” Minton v. Hill, 944 S.W.2d 250, 255 (Mo.App. W.D.1997), overruled on other grounds by Antle v. Reynolds, 15 S.W.3d 762 (Mo.App. W.D.2000).

A purchaser may repudiate a vehicle sales contract and recover the purchase price, provided the purchaser meets two conditions. The purchaser must demonstrate: (1) repudiation of the contract, within a reasonable time, while it x'emained executory, and (2) return or offer to return the vehicle in substantially as good condition as it was at the time of the sale. Shivers, 219 S.W.3d at 304; Hymer v. Dude Hinton Pontiac, Inc., 332 S.W.2d 467, 469 (Mo.App.Spring.Dist.1960); Lebcowitz v. Simms, 300 S.W.2d 827, 830 (Mo.App.St.L.Dist.1957). Within this context, a reasonable time has been defined as “within reasonable time after [the purchaser] discovers, or in the exercise of ordinary care should discover, the ground for repudiation of the contract.” Kesinger v. Burtrum, 295 S.W.2d 605, 610 (Mo.App.Spring.Dist.1956).

The record clearly demonstrates both parties have repudiated the contract. Although Dealer has retained the full purchase price, Dealer has not performed by failing to deliver title and refusing Bolt’s attempt to return the vehicle. Bolt demonstrated she repudiated the sale within a reasonable time in that less than two months elapsed between the time she negotiated with Dealer to have the emission problems repaired and the occasion she attempted to return the vehicle when she could not register and license it. Moreover, Bolt offered to return the vehicle in as good a condition as it was at the time of the sale. The uncontested evidence shows Bolt drove the vehicle approximately 1,580 miles between the time of purchase and the final emissions inspection in December 2008, and Bolt stopped driving the vehicle after that final inspection. This was sufficient to repudiate the sales contract. Cf. Smith v. G.F.C. Corp., 255 S.W.2d 69, 71 (Mo.App.St.L.Dist.1953)(holding purchaser could not repudiate when “continued enjoyment and hard usage of automobile certainly could not have left it in the condition it was in at the time of the sale” when salesman used car to travel “all over Ohio” and return to St. Louis every weekend); Hymer, 332 S.W.2d at 470 (finding “Common sense and experience suggest the palpable improbability” the vehicle was in as good a condition as at the time of the sale when it was driven for nine months pi'ior to purported repudiation).

Based on the foregoing, we find Bolt presented a prima facie case in support of her allegations that the transaction violated Section 301.210.4, rendering the purported sale void. Further, the essential elements of repudiation have been proven by Bolt. “It is not the label of the cause of action, or the prayer for relief, but instead it is the operative facts stated in the petition which determine the nature of the cause of action.” Minton, 944 S.W.2d at 256. Thus, the trial court’s judgment in Dealer’s favor on this count resulted in a misapplication of the law and is erroneous. Reddish, 197 S.W.3d at 637. Bolt’s second point is granted.

In her final point on appeal, Bolt argues the trial court erred in denying her claim for damages pursuant to the Missouri Merchandising Practices Act (MMPA), Section 407.020.1. In support of her argument, Bolt claims Dealer violated Section 643.315.4(3) and Section 301.210.4, lied about the condition of the vehicle and his intention of making adequate repairs to the vehicle, authorized substandard repairs without her knowledge or consent, failed to return her telephone calls, and refused her certified letters. Bolt claims all of these actions constituted unlawful practices, entitling her to an award of damages. At trial, Dealer argued Section 407.020 did not afford Bolt any relief as a private party, and Bolt did not refute this argument. However, on appeal, Dealer agrees Bolt has a private right of action, but still asserts she has not proven he committed any unlawful practices.

Section 407.020.1 declares an unlawful practice shall include, “[t]he act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce.... ” The act is intended to protect consumers and to “supplement the definitions of common law fraud in an attempt to preserve fundamental honesty, fair play and right dealings in public transactions.” Huch v. Charter Communications, Inc., 290 S.W.3d 721, 724 (Mo. banc 2009)(quoting State ex rel. Danforth v. Independence Dodge, Inc., 494 S.W.2d 362, 368 (Mo.App.K.C.Dist.1973)).

Section 407.025.1 grants an individual “who purchases or leases merchandise ... and thereby suffers an ascertainable loss of money or property” the right to pursue a private cause of action based on a violation of the MMPA. Ullrich v. CADCO, Inc., 244 S.W.3d 772, 777 (Mo.App. E.D.2008). Despite our ruling that Dealer’s purported sale of the vehicle was rendered void and fraudulent due to the violation of Section 301.210.4, Bolt may still assert this claim. See Antle, 15 S.W.3d at 768 (holding Section 301.210.4 did not bar purchaser from maintaining a claim under the MMPA, even though there was no contemporaneous assignment of certificate of title).

Thus, we turn to Bolt’s assertion that she presented sufficient evidence to support her claim. Our disposition of Bolt’s first point on appeal likewise disposes of Bolt’s claim that Dealer’s alleged violation of Section 643.315.4(3) constituted an unfair practice. Given that we found the statute inapplicable, Dealer’s conduct could not constitute an unfair practice. Moreover, Bolt’s claim with respect to Dealer’s failure to transfer title also fails. While the court in Antle permitted a purported purchaser who had not received title to maintain a claim under the MMPA despite no purchase being consummated, the court limited its holding, cautioning:

We are not here deciding that any claim of false representation against a dealer may be maintained in a transaction in which title was not delivered. Rather, we hold only that common law fraud claims may be pursued when the primary fraud claim relates to a misrepresentation concerning the status or the delivery of title, and other claims of fraud related to the transaction are attendant thereto. It seems that in order to avoid undermining the public policy of Section 301.210.4, a buyer who deliberately buys a motor vehicle without a contemporaneous assignment of title should not be entitled to complain of fraud in other aspects of the transaction if the buyer knew that no contemporaneous assignment of title would take place.

Antle, 15 S.W.3d at 768 n. 2. Bolt does not allege Dealer made any false representations with respect to the delivery of title, just that he failed to do so. As such, her claim for damages pursuant to the MMPA regarding a violation of Section 301.210.4 fails. Finally, we find no. evidence to support Bolt’s claim Dealer committed other unlawful practices with respect to their transaction. We examine Dealer’s conduct, not his intent, to determine whether a violation has occurred. Huch, 290 S.W.3d at 724. Bolt was aware of the vehicle’s mechanical problems prior to paying for the vehicle and was aware it failed the emissions inspections several times and was repeatedly repaired unsuccessfully. As such, there was no deception regarding any material fact of the transaction. While we do not condone Dealer’s lack of communication with Bolt during the course of their dealings, this does not rise to the level of an unlawful practice entitling Bolt to damages under the MMPA. Bolt’s third point is denied.

The trial court’s judgment is affirmed in part, and reversed and remanded in part for further proceedings consistent with this opinion.

KURT S. ODENWALD, P.J., and GARY M. GAERTNER, JR., J., concur.

      . All statutory references are to RSMo (Cum. Supp.2008) unless otherwise indicated.

      . This testimony was in direct contradiction to the language on the sales contract that Bolt signed stating, "I hereby acknowledge receipt and delivery of duly assigned certificate of title to the motor vehicle purchased by me, together with a copy of this bill of sale.”

      . We are mindful Bolt did not articulate repudiation as a specific part of her claim. However, Bolt introduced evidence of repudiation and attempted tender which was not objected to by Dealer. See Schroeder v. Zykan, 255 S.W.2d 105, 112 (Mo.App.St.L.Dist.1953)(finding issue of repudiation was tried by express or implied consent even though not raised in the pleadings when purchaser introduced evidence of repudiation and defendant did not object).

      . Rather than remand for a new trial, in the interest of judicial economy, we advise the trial court to enter judgment in favor of Bolt for $3,250.00, the purchase price of the vehicle, at the time upon which she returns said vehicle to Dealer.


author: ROBERT G. DOWD, JR., Judge.

text:
    Sharon LAWRENCE, Appellant, v. ANHEUSER BUSCH COMPANIES, INC., Respondent.
    No. ED 93731.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 27, 2010.

      Jeffrey S. Damerall, St. Louis, MO, for Appellant.
    Todd D. Hilliker, Juan F. Arias, St. Louis, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Sharon Lawrence (“Claimant”) appeals from the decision of the Labor and Industrial Relations Commission (“the Commission”). Claimant asserts the Commission erred in denying her claim for workers’ compensation benefits and finding her claim for tinnitus was barred by the statute of limitations. We reverse and remand.

On August 24, 2005, Claimant filed a claim for workers’ compensation benefits alleging she suffered hearing loss and tinnitus arising out of and in the course of her employment with Anheuser Busch, Inc. (“Employer”). Claimant worked for Employer from January of 1979 until she retired in November of 2004. Claimant’s last date of work with Employer was February 17 or 18 of 2004. Claimant worked in various offices in the Bevo Building, which contained the bottling plant and some offices. During her time working in the Bevo Building, Claimant was exposed to varying noise levels ranging from a three out of a ten to a ten out of a ten. While working in the Bevo Building in the late 1970s and early 1980s in an office with a noise level of a ten out of a ten to a nine and a half out of a ten, Claimant noticed a change in her hearing. Claimant noticed that she was going home every night with a headache and would have ringing in her ears. Claimant did not know what the ringing in her ears was from, and then read several articles about tinnitus. Claimant was eventually moved to a quieter office with a noise level of a three out of a ten in 1984.

Claimant was diagnosed with hearing loss and tinnitus resulting from occupational noise exposure while working for Employer on April 25, 2006 by Dr. Sheldon Darn.

The Administrative Law Judge (“the ALJ”) found Claimant’s claim of industrial hearing loss and tinnitus was barred by the statute of limitations, and denied Claimant’s claim for workers’ compensation benefits. Claimant filed an application of review with the Commission. The Commission affirmed and adopted the decision of the ALJ and denied Claimant workers’ compensation benefits. This appeal follows.

In her sole point, Claimant asserts the Commission erred in denying her claim for workers’ compensation benefits and finding her claim for tinnitus was barred by the statute of limitations. Claimant contends her claim was not time barred because her occupational disease of tinnitus was not reasonably discoverable prior to the filing of her claim.

When a workers’ compensation claim is appealed, we review only questions of law. Section 287.495, RSMo 2000. We can modify, reverse, remand for rehearing, or set aside awards based on factual determinations only on the grounds prescribed by statute; that is, if the Commission acted in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence to support the award. Id.

In reviewing a decision of the Commission, we examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, that is, whether the award is contrary, to the overwhelming weight of the evidence. Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 906 (Mo.App. E.D.2008)(citing Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003)). To determine whether the award is supported by competent and substantial evidence, we examine the evidence in the context of the whole record. Cardwell, 249 S.W.3d at 906. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence. Id. In reviewing a workers’ compensation award, we review the findings of the Commission and not those of the ALJ. Id. When, as here, the Commission affirms or adopts the findings of the ALJ, we review the decision and findings of the ALJ as adopted by the Commission. Id.

Section 287.430 sets the time for the filing of a claim for workers’ compensation benefits. Section 287.430 provides, in pertinent part:

no proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death, except that if the report of the injury or the death is not filed by the employer as required by section 287.380, the claim for compensation may be filed within three years after the date of injury, death, or last payment made under this chapter on account of the injury or death.

Section 287.063.3 sets forth when the statute of limitations begins running for a claim for an occupational disease. Section 287.063.3 provides:

[t]he statute of limitation referred to in section 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure, except that in cases of loss of hearing due to industrial noise said limitation shall not begin to run until the employee is eligible to file a claim as hereinafter provided in section 287.197.

Section 287.197.7 sets forth when the statute of limitations begins running for a claim for occupational deafness. Section 287.197.7 provides:

[n]o claim for compensation for occupational deafness may be filed until six months’ separation from the type of noisy work for the last employer in whose employment the employee was at any time during such employment exposed to harmful noise, and the last day of such period of separation from the type of noisy work shall be the date of disability.

Here, Claimant filed a claim for workers’ compensation benefits alleging she suffered hearing loss and tinnitus from occupational noise exposure while working for Employer. The Commission found Claimant’s claim for hearing loss and tinnitus was barred by the statute of limitations set forth in Section 287.197 because Claimant was last exposed to significant noise exposure in late 1984. The Commission then found this last significant noise exposure was followed by a “separation from the type of noisy work” sufficient to trigger the six month separation period pursuant to Section 287.197.7. Accordingly, the Commission held Claimant’s claim for hearing loss and tinnitus as a result of occupational noise was filed well past the three year period following the statutorily determined “date of disability” pursuant to Section 287.197.7.

On appeal, Claimant has withdrawn her claim for hearing loss to focus on her disability of tinnitus and argues the provisions of Section 287.197.7 do not apply to her claim for tinnitus, but rather her claim for tinnitus is controlled by Section 287.430.3.

Tinnitus is a compensable occupational disease that is separate and distinct from occupational deafness. Poehlein v. Trans World Airlines, Inc., 891 S.W.2d 505, 506-07 (Mo.App. E.D.1994)(overruled on other grounds by Hampton, 121 S.W.3d at 228). The statute of limitations for occupational disease claims does not begin to run until the disease is reasonably discoverable and connected to employment. Section 287.063.3; Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413, 416 (Mo.App. W.D.1988)(overruled on other grounds by Hampton, 121 S.W.3d at 230).

Here, Claimant’s tinnitus is an occupational disease separate from hearing loss and is controlled by Sections 287.063.3 not by Section 287.197.7 because Section 287.197.7 only applies to occupational deafness. Pursuant to Section 287.063.3, the statute of limitations did not begin to run on Claimant’s claim of tinnitus until it became reasonably discoverable and apparent that her tinnitus was related to the noise exposure while working for Employer.

Claimant contends her tinnitus was not reasonably discoverable until it was medically diagnosed and related to her employment by Dr. Davis. Claimant relies on Sellers to support her contention. The court in Sellers stated:

The standard for beginning the running of the statute of limitations, as developed in the cases, requires (1) a disability or injury, (2) that is compensable. Compensability, as noted, turns on establishing a direct causal connection between the disease or injury and the conditions under when the work is performed. Logically, an employee cannot be expected and certainly cannot be required to institute claim until he has reliable information that his condition is the result of his employment. Just as logically, given that there must be competent and substantial evidence of this link, the claimant is entitled to rely on a physician’s diagnosis of his condition rather than his own impressions.

Sellers, 752 S.W.2d at 416. In Sellers, the court reversed and remanded the Commission’s denial of worker’s compensation benefits for a claim of an occupational disease based on the statute of limitations. Id. at 415-417. The court found the claimant’s claim was not untimely because he was entitled to rely on a subsequent physician’s diagnosis and advice not to continue in his employment rather than on his impressions soon after the symptoms first appeared. Id. The court held that it was “at [that] point that it became reasonably discoverable and apparent from medical advice that the disease had produced a compensable disability and the statute of limitations started its run.” Id. at 417. Likewise, here, Claimant asserts the statute of limitations did not start to run until she was medically diagnosed with tinnitus and her condition was related to her noise exposure while working for Employer.

Employer, on the other hand, asserts that even considering tinnitus under Section 287.063.3, the statute of limitations expired on Claimant’s claim for tinnitus because her tinnitus was reasonably apparent in the 1980s. Employer relies on Claimant’s statement that she read several articles at the time she began having ringing in her ears and figured out that she had tinnitus.

The question as to when a compen-sable injury becomes reasonably discoverable and apparent is a question of fact to be determined by the Commission. Rupard v. Kiesendahl, 114 S.W.3d 389, 394 (Mo.App. W.D.2003)(overruled on other grounds by Hampton, 121 S.W.3d at 224); Wiele v. National Super Markets, Inc., 948 S.W.2d 142, 146 (Mo.App. E.D.1997)(overruled on other grounds by Hampton, 121 S.W.3d at 226). Here, the Commission did not make a factual finding as to when Claimant’s tinnitus was reasonably discoverable pursuant to Section 287.063.3. Thus, we remand to the Commission for a determination of when Claimant’s tinnitus was reasonable discoverable and, after making that determination, whether Claimant’s claim for tinnitus was timely. If the Commission determines Claimant’s claim for tinnitus was timely, it shall subsequently determine whether Claimant is entitled to worker’s compensation benefits for her tinnitus.

Reversed and remanded.

SHERRI B. SULLIVAN, P.J., and PATRICIA L. COHEN, J., concur.

      . In its brief, Employer asserts this court does not have jurisdiction over this appeal because Claimant filed her brief out of time without an accompanying motion to file a brief out of time. Claimant has corrected this and properly filed a motion to file a brief out of time that was granted by this court. Employer also argues we should dismiss Claimant's appeal because she failed to include a case information form as required by Rule 81.08(a) and local Eastern District Rule 300(c). Claimant’s failure to include a case information form does not require dismissal of this appeal.

      . All further statutory references are to RSMo 2000.

      . Employer asserts that by withdrawing her hearing loss claim and proceeding on her claim for tinnitus, Claimant would be violating the ''nonseparability rule” set forth in Wheeler v. Missouri P.R. Co., 328 Mo. 888, 42 S.W.2d 579 (1931) and cited in DeRousse v. PPG Industries, Inc., 598 S.W.2d 106, 118 n. 4 (Mo. banc 1980). Employer’s reliance on Wheeler is misplaced.