author: PAUL J. SIMON, Judge.

text:
    TARYEN DEVELOPMENT, INC., Plaintiff/Appellant, v. PHILLIPS 66 COMPANY and Phillips Petroleum Company, Defendants/Respondents.
    No. ED 77149.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 22, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 25, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Marvin Max Klamen, St. Louis, for Appellant.
    Ian P. Cooper, Mickes, Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C., St. Louis, for Respondents
   PAUL J. SIMON, Judge.

Plaintiff, Taryen Development Inc. (Tar-yen), appeals the judgment of the Circuit Court of St. Louis County granting summary judgment in favor of defendants, Phillips 66 Company and Phillips Petroleum Company, on all three counts of Tar-yen’s Third Amended Petition.

On appeal, Taryen contends that the trial court erred in granting summary judgment on: (1) Count I for fraud in the execution because: (a) Count I alleges all of the essential elements of a fraud claim; (b) defendants have failed to negate at least one essential element of the claim; (c) it alleges recoverable damages; (d) it is not barred by the statute of limitations; (2) Count II for fraud in the inducement because: (a) Count II alleges the essential elements of a fraud claim; (b) Taryen was not under a legal obligation to convey real property; (c) defendants have failed to negate at least one essential element of the claim; (d) it is not barred by the statute of limitations; (3) Count III for breach of contract because: (a) Count III alleges the essential elements of a breach of contract claim; (b) a document does not need to be signed to be a contract; (c) defendants had a duty to construct slope in a manner prescribed in agreement; (d) defendants have failed to negate at least one of the essential elements of the count; (e) it is not barred by the statute of limitations. We affirm in part and reverse and remand in part.

We initially note that the legal file, comprising more than 380 pages, is poorly organized with a short superficial index. Neither party provided an index identifying specific page numbers for the exhibits referenced in their motions. This lack of organization necessitated a page by page search of the record. However, since we were able to find the needed documents, we address the merits of the appeal.

It is well-settled that when considering an appeal from summary judgment, we review the record in the light most favorable to the non-movant. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). Our review is essentially de novo. Id. at 376. The criteria on appeal for testing the propriety of summary judgment are no different from those employed by the trial court to determine the propriety of sustaining the motion initially. Id. The burden on a summary judgment movant is to show a right to judgment flowing from facts about which there is no genuine dispute. Id. at 378.

A “defending” party may establish a right to judgment by showing: (1) facts that negate any one of the claimant’s elements facts; (2) that the non-movant, after an adequate time for discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements; or (3) that there is no genuine dispute as to the existence of the facts necessary to support the movant’s properly pleaded affirmative defense. Id. at 381. Where, as here, the trial court grants summary judgment without specifying the basis upon which it was granted, we will uphold the summary judgment if it is appropriate under any theory. Southwestern Bell Yellow Pages v. Robbins, 865 S.W.2d 361, 369 (Mo.App. E.D. 1993).

The non-movant must show by affidavit, depositions, answer to interrogatories, or admissions on file, that one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed. ITT at 381. A “genuine issue” exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. Id. at 382. A “genuine issue” is a dispute that is real, not merely argumentative, imaginary or frivolous. Id.

The record, reviewed in the light most favorable to Taryen, the non-movant, reveals that Taryen, incorporated in 1974, is a commercial entity dealing in real estate and has participated in numerous real estate transactions. Harold Klamen, Tar-yen’s past president and part owner, has been in the business of dealing with real estate for approximately fifty years. Past president and part owner, Forrest Crump, now deceased, had been in the real estate business for about twenty years in 1990.

On or about, March 29, 1990, Taryen agreed to sell to defendants certain real estate located at the corner of Imperial Main and 1-55 in Jefferson County, Missouri (the property). On that date, Taryen executed a Contract to Purchase Real Estate, (contract) providing that the contract price was $350,000. Subparagraph D of the contract provided, in pertinent part:

“the failure of any jurisdiction to grant zoning, special use permits, development standard variances and building permits for the above uses and facilities shall result in the cancellation of the Contract and Seller shall return all contract consideration to Buyer.”

The contract also provided for special conditions, which were attached as exhibit B to the real estate contract. The special conditions provided, in pertinent part:

2. Seller agrees to assign to Buyer the Seller’s access easement across the property located at the Northwest Corner of Main Street and Old State Road. Seller reserves the right to utilize said easement appurtenant and further reserves a thirty-foot (30-foot) access easement appurtenant along the East thirty (30) feet of the subject Premises from Main Street to the North Property line of the subject premises from Main Street to the North property line of the subject premises. Seller reserves the right to assign all or a portion of its rights in the above-referenced easements.
3. Seller agrees to grant Buyer a slope easement of such distance along the North property line of the subject Premises to accommodate a three-to one grading slope. Buyer shall present the proposed Slope Easement Agreement to Seller not less than thirty (30) days pri- or to closing. The determination of the size of the easement area and the execution of the easement agreement containing the terms and conditions of the easement shall be completed prior to closing.

On August 20, 1990 defendants provided Taryen with formal written notice of corporate approval of the contract, stating that purchase was contingent upon satisfaction of all terms and conditions of the contract.

In October 1990, defendants prepared a subdivision plat encompassing the property for a subdivision known as the Janie Lee Meadows Subdivision (Janie Lee plat). This plat contained an easement running across the property in favor of Taryen, as provided for in Exhibit B. On October 4, 1990, defendants advised Taryen in writing that the approval of the Janie Lee plat by-Jefferson County would be necessary and on October 19, the Jefferson County Planning and Zoning Commission (commission) advised Taryen that a hearing for approval of the Janie Lee plat would occur on October 25.

On October 26, 1990, Taryen was notified by commission that the Janie Lee plat in its preliminary form was approved subject to at least fourteen conditions. On November 20, 1990, Taryen was notified by the Jefferson County Planning and Zoning Department (department) that the final Janie Lee plat would be considered by the commission on December 13, 1990. On or about December 13, 1990, commission recommended final approval of the Janie Lee plat subject to only two conditions, acceptance of the escrow agreement by commission and that Lot 3 of Phase II be designated as non-buildable until final approval of the plat is granted.

On or about December 17,1990 the closing on the property occurred. Taryen did not attend the closing, but had submitted a general warranty deed transferring title to the property and a slope easement in favor of defendants to the title company. The slope easement, a separate document, was prepared by defendants and signed by Taryen. It was desired by defendants because the property to be purchased by defendants and Taryeris remaining property were below the grade of Main Street. In order to make defendants’ property commercially usable, defendants added a substantial amount of fill to raise the level of its property. The easement was to grant defendants access across the Taryen property for the purposes of transporting fill material onto defendants’ property. The slope easement provided, in pertinent part:

Whereas, [defendants] desires a grading and slope easement across approximately the southern fifty (50) feet of the Taryen Property ...
Now, Therefore, Taryen, its successors and assigns, does hereby grant and convey unto [defendants], its successors and assigns, a permanent grading and slope easement across the southern fifty (50) feet of the Taryen Property ...
It is understood and agreed that [defendants] shall have the right to use said grading and the slope easement for the purpose of reshaping, contouring, altering and maintaining the slope desired by [defendants] between the Taryen Property and the [defendants’] Property for a period of time not to exceed eighteen (18) months ...
Said grading shall not exceed a three to one ratio, nor shall it hinder the Taryen Property for using the roadway easement as set out on the Janie Lee Subdivision ...
The complete and only intent of their easement is for the [defendants’] property to be filled using their easement for slope and the filling and slopping shall be completed by July 1,1992.
It is also understood and agreed that the above stated considerations shall constitute all of the obligations of [defendants] to the surface owner or lessee for its use and enjoyment of the easement granted herein ...

At closing, defendants presented the Janie Lee plat map, which contained an access easement in favor of Taryen.

On January 18, 1991, Taryen was sent notice that commission would be meeting on February 14,1991 to consider an extension of time to record the final approved Janie Lee plat. On February 7, 1991 Tar-yen was notified in writing by the department that approval for the Janie Lee plat would expire if the plat was not recorded by February 13, 1991. On or about February 8, 1991, Defendants sought a thirty day extension to file the approved Janie Lee plat, due to unexpected procedural problems in establishing the required $300,000 escrow account for improvements to the property necessary to record the plat.

Defendants did not construct the slope easement by July 1, 1992, as provided by the slope easement agreement and Taryen refused to extend the term or grant an additional easement. As a result, in 1996 defendants constructed a slope on its own land by acquiring slope easements from other adjacent property owners.

Taryen filed its original petition against defendants and Stock and Associates Consulting Engineers (Stock) on January 13, 1998. The first and second amended petitions, which are not in the record, apparently alleged various counts of fraud against defendants and Stock. Defendants and Stock filed a partial motion for summary judgment on the Second Amended Petition, which was granted. Further, the trial court dismissed all claims against Stock. Taryen did not appeal the summary judgment on the Second Amended Petition. On July 9, 1999, Taryen filed its Third Amended Petition, alleging three counts against defendant: (1) fraud in the execution, (2) fraud in the inducement; (3) breach of contract.

In its Third Amended Petition, Taryen alleged in its “Allegations Common to All Counts” that

“On or about December 17, 1990 a certain plat map (the ‘Janie Lee Subdivision’ herein) prepared by Defendants and presented to [Taryen] for execution, accompanied by Defendants’ representations that approval for such development commencement and subdivision had been received by Defendants. Defendants represented to [Taryen] that said plat was to be recorded as part of the closing process. [Taryen’s] access easement was depicted on said plat.”

Count I alleged fraud in the execution based on defendants’ failure to record the Janie Lee plat, which contained Taryen’s access easement. Taryen alleged that

“prior to and particularly following closing of said sale under said agreement, Defendants intentionally caused and allowed the defeasance of [Taryen’s] easement and property rights by the fraudulent drafting and substitution of documents and other actions taken by Defendants, purportedly in the execution of its contract obligations to [Tar-yen], and under the authority of said agreement.”

Taryen further alleged that “by withholding perfection and recording of the conveyance and/or subdivision plat map, Defendants 66 became the real owner of said servient estate as it relates to the interest of [Taryen]” and that the failure to record caused Taryen’s tax burden to be excessive. Finally, Taryen maintained that because of its reliance on the misrepresentations and concealment, it suffered damages in excess of $15,000.00, representing the difference in value between Taryen’s land with and without the recorded easement as well as the tax burden borne by Taryen and other related expenses. Taryen also requested $25,000.00 in punitive damages.

Count II alleged fraud in the inducement based on defendants’ representation to Taryen that all the conditions precedent of the real estate contract were satisfied, when defendants were aware that they had not been satisfied. Specifically, Taryen alleged that “On or prior to December 17, 1990, Defendants concealed from [Taryen] the facts there and then known to Defendants and unknown to [Taryen] to-wit: That the agreement’s paragraph D. contingencies had not, in fact, been met, satisfied or waived and, as a result, that no closing was thereafter either called for or required by said agreement ...” Taryen further alleged that defendants had a duty to disclose to Taryen such facts known to defendants at the time of the misrepresentation and concealment because defendants were in a superior position of knowledge and awareness.

Count III, breach of contract, alleged that pursuant to the terms of the sales contract, Taryen and defendants were obligated to enter into negotiations with each other and reach an agreement with regard to an easement running in favor of defendants over Taryen’s remaining parcel for defendants’ construction of a slope; the parties entered into the agreement on or about December 17, 1990 and defendants received and accepted the agreement; the agreement was fully performed by Taryen at the time of such delivery and acceptance. Defendants further alleged that in breach of said contract, defendants built the slope in such a manner as to hinder Taryen from using said roadway access easement. Defendant failed to build said slope on or before July 1, 1992 as the contract required.

Defendants filed an answer denying the allegations in Taryen’s Third Amended Petition and pleaded several affirmative defenses, including that the claims were barred by the Statute of Limitations.

Defendants then filed a motion for summary judgment. With respect to Count I, fraud in the execution, defendants alleged that Taryen did not plead or come forth with any evidence that it did not understand the nature of the transaction or have opportunity to examine the documents, that the documents were fraudulently drafted or substituted or that anything irregular occurred at closing. Further, defendants alleged that the claim was barred by the five year statute of limitations in Section 516.120 RSMo.1994 (all further references herein shall be to RSMo.1994 unless otherwise provided) because defendant had notice of the non-recording of the plat more than five years before filing the law suit in 1998. Finally, defendants alleged- that plaintiff could not establish damages with respect to the failure to record the easement.

As to Count II for fraud in the inducement, defendants alleged in their motion for summary judgment that “[Taryen] could not prevail on its fraud in the inducement theory because [Taryen] could not, as a matter of law, be induced to convey property that it was already under a legal obligation to convey,” and further because Taryen could not establish that defendants made a material, false representation. Further, defendants again alleged that the claim was barred by the five year statute of limitations period for fraud‘in Section 516.120 because plaintiff had means to discover the status of the approval and recording of the plat.

As to Count III for breach of contract, Defendants alleged that they were entitled to judgment as a matter of law because the slope easement was not a contract in that it lacks the elements of contract formation and that even if it did conform to the contract requirements, it did not establish a duty on the part of defendants to construct a slope on Taryen’s property. Additionally, defendants contended that the claim is barred by the statute of limitations. In support of their motion, defendants filed a memorandum of law and other items, including the real estate contract, the slope easement, letters from the department and commission, and the deposition of Harold Klamen.

Taryen filed a response to the motion, in which it admitted many of the undisputed facts set forth in defendants’ motion and raised several additional “separate assertions of undisputed fact in opposition to defendants’ declaration of undisputed facts.” Specifically relevant here, Taryen admitted defendants’ statement of undisputed fact that “on February 7, 1991, Taryen was notified in writing by the Jefferson County Planning Department that approval for the Janie Lee plat would expire if not recorded by February 13, 1991.” In support of its motion and the separate assertions, plaintiff filed many documents, including portions of Harold Klamen’s deposition, the real estate contract, the slope easement, correspondences to and from department and commission.

The trial court granted defendants’ motion for summary judgment on all three counts of Taryen’s Third Amended Petition, without making written findings of facts or conclusions of law and did not indicate on what grounds the motion was granted.

In its first point on appeal, Taryen contends that the trial court erred in granting defendants’ motion for summary judgment on Count I for fraud in the execution because it alleges all of the essential elements of a fraud claim, defendants have failed to negate at least one essential element, it alleges recoverable damages and the claim is not barred by the statute of limitations.

To establish fraud, Taryen must allege and prove: 1) a representation; 2) its falsity; 3) its materiality; 4) the speaker’s knowledge of its falsity, or his ignorance of its truth; 5) the speaker’s intent that it should be acted on by the person and in the manner reasonably contemplated; 6) the hearer’s ignorance of the falsity of the representation; 7) the hearer’s reliance on the representation being true; 8) his right to rely thereon; and, 9) the hearer’s consequent and proximately caused injury. Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. banc 1988). In their brief, defendants do not address or contest that Taryen properly pled all of the essential elements of a fraud claim and our review of the record indicates that Tar-yen’s petition was sufficient.

However, to be entitled to summary judgment, defendants need not negate each element of the fraud claim, rather they need only establish that one element is lacking. Id. Defendants contend, however, that the undisputed facts negate one or more essential elements of the claim of fraud, namely that there was no misrepresentation made, and if so, Taryen did not rely on the alleged misrepresentation.

Defendants contends that Taryen has not presented any evidence that a representation was made about the recording of the plat; however, at the summary judgment stage it is defendants’ burden to negate the element, such as by providing evidence to show that no representation was made. ITT, 854 S.W.2d at 381. Defendants have done nothing to negate the allegations, other than deny them in their answer. Thus, a question of material fact remains as to that issue.

Further, defendants contend that Tar-yen did not rely on the misrepresentation based on Harold Klamen’s statements in his deposition. When asked by defense counsel, “ — when Taryen development entered into this transaction, you on behalf of Taryen didn’t rely on any oral statements that anyone made to you on behalf of Phillips; did you?,” Harold Klamen responded, “I never talked to Phillips.” Defense counsel went on to ask “... Are you aware of Forest [sic] relying on any oral statements that Phillips made,” with Kla-men responding “I can’t speak for Forest [sic].” Defense counsel continued, “And you are not aware of anything stated orally to Forest [sic] that he relied on?” Klamen responded that he knew of none.

Based on this deposition testimony, defendants seek to establish that as a matter of law, Taryen did not rely on the alleged misrepresentations. However, Taryen contends that Klamen did not personally rely on any statements because he was not involved in the transaction, but rather his now deceased partner Forrest Crump, who lived in Jefferson County where the property was located, dealt with Phillips. As for his knowledge of Forrest Crump’s reliance, Taryen contends that Klamen was not made aware of this fact because he was not an active participant in the transaction and would not normally have been the recipient of such information. Thus, we find that there is a genuine issue of material fact presented as to whether Taryen relied on the representations of defendants.

Plaintiffs also contend that their claim is not barred by the statute of limitations for fraud actions. Section 516.120 What Actions Within Five Years provides, in pertinent part:

Within Five Years:
(5) An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.

Where the running of the statute of limitations depends upon when the plaintiff discovered or by reasonable diligence could have discovered the fraud, a question of fact is presented. Brown v. Scheible, 814 S.W.2d 5, 7 (Mo.App.1991). Thus, summary judgment was only proper where it is shown that there is no genuine issue of material fact as to whether the fraud was capable of ascertainment more than five years prior to the filing of the petition. Id.

Here, in its response to the motion for summary judgment, Taryen acknowledged that “on February 7, 1991, Taryen was notified in writing by the Jefferson County Planning Department that approval for the Janie Lee Plat would expire if the plat was not recorded by February 13, 1991.” Further, Taryen acknowledged that “on or about February 8, 1991, Phillips sought a thirty-day extension to file the approved Janie Lee plat due to unexpected procedural problems in establishing the required $300,000 [sic] escrow account for improvements to the property necessary to record the plat.” However, Taryen contended that the notice specifically advised them that “the escrow agreement had, in fact been approved by Defendants and that there was to be a mere delay for the filing due to unexpected procedural problems.” Taryen further contended that it reasonably relied upon defendants’ own expressed assurances, which was defendants’ intention as expressed in the February 8 letter. Therefore, a genuine issue of material fact exists as to whether Taryen discovered, or through the exercise of reasonable diligence could have discovered, the alleged fraud more than five years prior to the filing of -the petition, based on the record here.

Finally, Taryen contends that it suffered damages from the misrepresentation because a recorded easement has a value different than that of an unrecorded easement. Defendants do not respond to this argument in their brief. We agree with Taryen that genuine issue of material fact still remains as to the question of damages sustained. Because numerous issues of material fact remain and defendants have failed to negate at least one element of the claim, the trial court’s grant of summary judgment was improper.

In its second point, Taryen contends that the trial court erred in granting defendants’ motion for summary judgment on Count II because: (a) it alleges the essential elements of a fraud claim; (b) Taryen was not under a legal obligation to convey real property; (c) defendants have failed to negate at least one essential element; and (d) the claim is not barred by the statute of limitations.

The second count, as the first count, alleges fraud by the defendant in its misrepresentations to Taryen and involves essentially the same elements as the first. As noted in our discussion of the first point, Taryen has alleged the essential elements of a fraud action and defendant has failed to negate at least one of the essential elements of the claim.

Taryen also contends that summary judgment was improper because Taryen “was not under any legal obligation to convey the real property until all conditions precedent were satisfied.” Taryen contends that the conditions precedent were set forth in subparagraph D of the contract, which provides “the failure of any jurisdiction to grant zoning, special use permits, development standard variances and building permits for the above uses and facilities shall result in the cancellation of the Contract and Seller shall return all contract consideration to Buyer.”

It is undisputed that the Janie Lee Plat had to be approved by the commission and recorded. At closing, the plat was approved by the commission but with conditions which, if not satisfied, could result in the loss of approval. Thus, there is a genuine issue of material fact as to whether at the time of closing defendants failed to satisfy the contractual condition that all zoning and special use permits be granted. Since defendants failed to satisfy a material condition precedent, Taryen would not have a legal obligation to convey the property at closing.

Finally, Taryen contends that its claim was not barred by the statute of limitations in Section 516.120. As discussed in the first point, a genuine issue of material fact remains as to Taryen’s knowledge and reliance. Because of the remaining disputed issues of material fact, summary judgment was improperly granted.

In its third point, Taryen contends that the trial court erred in granting defendants’ motion for summary judgment because: (a) Count III alleges the essential elements of a breach of contract claim; (b) a document does not need to be signed by defendants to be a contract; (c) defendants had a duty to construct slope in a manner prescribed in agreement; (d) defendants have failed to negate at least one of the essential elements of the count; (e) it is not barred by the statute of limitations.

To succeed in a breach of contract claim, Taryen must prove that (a) a contract existed between Taryen and defendants; (b) Taryen had certain rights and defendants certain obligations or duties under the contract; (c) defendants breached the contract; and (d) Taryen suffered damages therefrom. Trotter’s Corp. v. Ringleader Restaurants, Inc., 929 S.W.2d 935, 939 (Mo.App. E.D.1996).

Defendants contend that summary judgment was proper because they owed no duty to Taryen under the slope easement. The slope easement, granted in favor of defendants, provided that defendants “shall have the right to use said grading and the slope easement for the purpose of reshaping, contouring, altering and maintaining the slope desired by [defendants] between the Taryen Property and the [defendants’] Property for a period of time not to exceed eighteen (18) months ...” and that “Said grading shall not exceed a three to one ratio, nor shall it hinder the Taryen Property for using the roadway easement as set out on the Janie Lee Subdivision ...” The easement does not require defendants to construct a slope, to use Taryen’s property, or to use the easement, rather it merely grants defendants such right and sets out the conditions for exercising that right. Here, defendants did not use the Taryen slope easement to fill their land. Rather, they built a slope on their own land via easements from other adjacent property owners and that slope allegedly interfered with Tayren’s access easement. Because defendants did not use the easement, they did not have the corresponding obligation as set forth in the easement. While Taryen may not have a claim for breach of the easement contract, it may have a claim against defendants for burden of its access easement. Because defendants have negated that they had an obligation to construct the easement, summary judgment was properly granted on Count III.

JUDGMENT AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

GARY M. GAERTNER, P.J. and JAMES R. DOWD, J„ concur.


source: Caselaw Access Project

author: WILLIAM H. CRANDALL, Jr., Judge.

license: Public Domain

text:
    Lori MINOR, Claimant/Appellant, v. APCOA, INCORPORATED, Employer/Respondent, and National Union Fire Insurance Co., Insurer/Respondent, and Second Injury Fund, Additional Party.
    No. ED 77389.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 22, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2000.
    Application for Transfer Denied Dec. 5, 2000.
    Susan K. Roach, Chesterfield, for appellant.
    David S. Ware, Mary Anne Lindsey, St. Louis, for respondent.
   WILLIAM H. CRANDALL, Jr., Judge.

Claimant, Lori Minor, appeals from a decision by the Labor and Industrial Relations Commission (Commission), dismissing her claim for workers’ compensation. We affirm.

On January 11, 1993, employer, Apcoa, Inc., filed a Report of Injury, stating claimant injured her right hand and back. Claimant filed a claim for workers’ compensation on January 10, 1994. In its answer, employer and its insurer, National Union Fire Insurance Co., admitted that claimant sustained an accidental injury on or about January 7, 1993. Employer and its insurer also asserted that “all necessary compensation benefits and medical” had been provided.

On September 29, 1998, claimant filed a memorandum dismissing the “matter without prejudice.” On October 2, 1998, “employer/insurer” appeared before an administrative law judge (ALJ) for a scheduled hearing. Claimant did not appear. At this time, employer and its insurer moved for dismissal of the claim for failure to prosecute and the ALJ granted the motion. Claimant filed an application for review by the Commission arguing that the ALJ erred in dismissing her claim because she had voluntarily dismissed her claim prior to October 2, 1998. After discussing “the law” on voluntary dismissals, the Commission found good cause for claimant’s failure to appear on October 2, 1998, good cause to set aside the ALJ’s dismissal and that the claim for compensation was voluntarily dismissed. In a footnote, the Commission stated that it took no position on the issue of whether the claim for compensation in this case could be refiled, in light of the statute of limitations, section 287.430. Employer and its insurer did not appeal from the Commission’s decision.

Claimant refiled her claim for compensation on December 9, 1998. As in the original answer, employer and its insurer admitted that claimant sustained an accidental injury on or about January 7, 1993, “for which all necessary compensation benefits and medical have been provided.” Employer and its insurer also asserted that claimant’s claim was barred by limitations imposed by section 287.430. An ALJ set the case for a hearing solely on the issue regarding the statute of limitations. At the hearing, the parties agreed that the last payment on account of the injury was a medical benefit payment on May 9, 1995. The ALJ concluded that Missouri’s savings statute, section 516.230, applied to workers’ compensation claims and that the Division of Workers’ Compensation had jurisdiction over the claim. On review, the Commission reversed the ALJ’s award and concluded that section 516.230 did not apply. The Commission dismissed the claim because it was filed beyond the statute of limitations set forth in section 287.430. Claimant appeals raising two points.

This court will modify, reverse, remand or set aside an award only if the Commission acted without or 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 in the record to warrant the making of the award. Section 287.495. We review issues involving matters of law independently. Cahall v. Cahall, 963 S.W.2d 368, 372 (Mo.App. E.D. 1998).

Claimant argues in her first point that the Commission erred in dismissing her claim based on the statute of limitations set forth in section 287.430 because she refiled her claim within one year of her voluntary dismissal and it was therefore “viable” under the savings statute, section 516.230. We disagree.

Section 287.430.1 provides in part as follows:

Except for a claim for recovery filed against the second injury fund, 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.... In all other respects the limitations shall be governed by the law of civil actions other than for the recovery of real property, but the appointment of a conservator shall be deemed the termination of the legal disability from minority or disability as defined in chapter 475, RSMo. The statute of limitations contained in this section is one of extinction and not of repose.

Section 516.230 provides in part as follows:

If any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed....

Employer filed a Report of Injury on January 11, 1993, and claimant originally filed her claim on January 10, 1994. The parties agreed that the last payment made on account of claimant’s injury was May 9, 1995. After voluntarily dismissing her action September 29, 1998, claimant refiled her claim on December 9, 1998, more than two years after the last payment made on account of her injury. Under section 287.430, claimant had to file her claim within two years from the last date of payment on account of her injury unless, as claimant argues, section 516.230 applies to workers’ compensation claims. See Snow v. Sunbelt Systems Transport, 813 S.W.2d 868, 871 (Mo. banc 1991); Wild v. Trans World Airlines, Inc., 14 S.W.3d 166, 167 (Mo.App. W.D.2000).

Claimant contends that the following language in section 287.430, “In all other respects, the limitations shall be governed by the laws of civil actions” makes section 516.230 applicable for workers’ compensation claims. According to claimant, she therefore could refile her claim within one year from the voluntary dismissal.

By its language, the savings statute, section 516.230, only applies to actions commenced within the times prescribed in sections 516.010 to 516.370. West v. Director of Revenue, 996 S.W.2d 775, 777 (Mo.App. E.D.1999). The time to commence a claim for workers’ compensation is set forth in sections 287.430 and 287.440 and not in sections 516.010 to 516.370. Furthermore the limitation of section 516.230 is “reinforced” by section 516.300 which provides that, “The provisions of sections 516.010 to 516.370 shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute.” Gill v. Farm Bureau Life Ins. Co., 856 S.W.2d 96, 99 (Mo.App. S.D. 1993). “Section 516.300 is designed to assure the Missouri general statute of limitations will not be injected into a cause of action that has its own built-in statute of limitations.” Thompson v. Crawford, 833 S.W.2d 868, 871 (Mo. banc 1992).

The savings statute has been held inapplicable for workers’ compensation claims. Wedemeier v. St. Louis Malleable Casting Co., 52 S.W.2d 569, 570 (Mo.App.1932). In that case, the court held that the “Compensation Act” has its own special statute of limitation and therefore “the statute saving the time in a case of a nonsuit does not apply, even if we treat the case as though the nonsuit in the action at law has actually been suffered.” Id.

Claimant relies on Welborn v. Southern Equipment Co., 395 S.W.2d 119 (Mo. banc 1965), in support of her argument. In Welbom, the employee’s accident occurred on July 20, 1960 and no compensation was paid or medical , aid provided by the employer until August 23, 1961. Welborn, 395 S.W.2d at 121. At that time section 287.430 RSMo.1959 had a one-year statute of limitation. Id. at 122-23. The court stated that the “primary” question was whether the furnishing of medical services by an employer to an employee after the one-year statute of limitation had run was a payment that revived the employee’s claim for compensation and permitted it to be filed within one year thereafter. Id. at 120. The court recognized that distinctions had been made where the right or cause of action is not one of common law but is “the creature of a statute which also imposes the limitation.” Id. at 123. “In such cases there is a tendency, not strictly followed in this state, to hold that the bringing of the suit within the time allowed is substantive and a condition to the maintenance of the action and that the lapse of the specified period after the cause of action accrues extinguishes the right or cause of action,” whereas “general statutes of limitation quite uniformly are held to be statutes of repose or limitation only which do not extinguish the cause of action.” Id. The court then stated:

We need not concern ourselves too deeply, however, with this distinction because [section] 287.430 directly ties the limitation of compensation claims into our general "statutes of limitation by this language: “In all other respects such limitations shall be governed by the law of civil actions other than for the recovery of real property, * * Section 516.100 of the general limitation statutes relating to personal actions provides that: “Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; * ⅝ *.» ijijjgjj follows [section] 516.110 to [section] 516.140 which lists the categories of civil actions and the periods within which they may be commenced.

Id. The court held that there was no legislative intent expressed in section 287.430 RSMo.1959 to extinguish completely a workers’ compensation claim if not filed within the period provided by the statute. Id. The court noted that workers’ compensation benefits are in the nature of obligations or payments due under a contract and that, as “directed” by section 287.430, the court considered the general statutes of limitation and the legal effect of a payment on account of a debt or other obligation. Id. at 124. The court held that the payment made on account of the injury after the one-year period of limitation provided by section 287.430 had elapsed, revived the employee’s claim and right of action and the claim filed within one year thereafter was timely. Id.

The court in Welbom based its holding on its finding that section 287.430 was then a statute of repose and not of extinction. In 1981, the legislature amended section 287.430 by adding the sentence, “The statute of limitations contained in this section is one of extinction and not of repose.” The effect of this amendment on the holding in Welborn has been recognized. Stoddard v. Wilson Freight, Inc., 651 S.W.2d 152, 157 n. 2 (Mo.App.1983). The amendment “apparently removes the basis for the revival rule” expressed in Welbom. Id. Claimant’s reliance on Welbom is misplaced.

Claimant admits that section 287.430, “as it addresses original filings,” is a statute of extinction. Claimant asserts that she is not attempting to revive an extinguished claim but rather is exercising a right contained in section 287.430, “namely, the refiling of a claim within one year after the filing of a voluntary non-suit.” However, section 287.430 makes no distinction between the original filing and refiling of a claim. The time limitation for filing a claim for compensation and applicable tolling provisions are specifically set forth in sections 287.430 and 287.440. To adopt claimant’s argument, would be contrary to the plain meaning of section 287.430 and effectively render the language that the statute is one of extinction meaningless. Claimant’s first point is denied.

Claimant argues in her second point that the Commission erred in finding that the ALJ’s award was a renewable final award disposing of the entire controversy between the parties. Claimant contends because the ALJ’s award was not appealable to the Commission it could not dismiss her claim. In view of our holding that the claim in question is extinguished, we fail to see how claimant was aggrieved by the action of the Commission. We therefore decline to address a moot point.

The decision of the Commission is affirmed.

CLIFFORD H. AHRENS, P.J. and JAMES R. DOWD, J., Concur.

      .Eight CSR 50-2.010 sets forth procedures for non-contested and contested workers’ compensation cases. Section (12)(A) of this regulation provides that "A Claim for Compensation may be voluntarily dismissed with or without prejudice at any time prior to the introduction of evidence at a hearing. The claim for compensation may be refiled by claimant so long as the statute of limitations has not run." The reason why the October 2, 1998 hearing occurred appears to be that the ALJ was unaware of claimant's voluntary dismissal filed prior to October 2, 1998.

        . A 1993 amendment to section 287.430 designated subsection 1 without changing the language at issue here and added a second subsection. All statutory references are to RSMo.1994 unless otherwise indicated.

      . Employer's motion to dismiss the appeal or in the alternative to strike claimant's brief is denied.

      . Section 287.440 provides "Where recovery is denied to any person in a suit brought at law or in admiralty to recover damages in respect of bodily injury or death on the ground that the person was an employee and the defendant was an employer subject to and within the meaning of this chapter, or when recovery is denied to any person in an action brought under the provisions of a workers' compensation law of any other state or jurisdiction on the ground that the person was an employee under and subject to the provisions of this chapter, the limitation of time prescribed in section 287.430 shall begin to run from the date of the ultimate termination or abandonment of such suit or compensation proceeding, when such suit or compensation proceedings are filed within two years after the filing by the employer of the report of injury or death complained of, or in case payments have been made on account of the injury or death, within two years from the date of the last payment.”

      . Section 516.230 has also been held not to apply to other causes of action with their own specifically prescribed statutes of limitation. See, e.g., West, 996 S.W.2d at 777; Gill, 856 S.W.2d at 98-99; Boggs v. Farmers State Bank, 846 S.W.2d 233, 234-36 (Mo.App. S.D.1993); Stine v. Kansas City Terminal Railway Co., 564 S.W.2d 619, 620-22 (Mo.App.1978).

      . We have reviewed the other cases relied on by claimant and find them unpersuasive.


author: PAUL M. SPINDEN, Chief Judge.

text:
    MASSMAN CONSTRUCTION COMPANY, Respondent, v. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Appellant.
    No. WD 57228.
    Missouri Court of Appeals, Western District.
    Aug. 29, 2000.
    Motion For Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      John W. Koenig, Jr., Sideston, for appellant.
    R.W. Miller, Kansas City, for respondent.
   PAUL M. SPINDEN, Chief Judge.

Massman Construction Company sued the Missouri Highways and Transportation Commission for breach of warranty ex contractu for the substructure work it did on a bridge across the Missouri River. The circuit court entered judgment on a jury’s verdict for Massman in the amount of $850,000 plus prejudgment interest. The commission appeals, asserting that the circuit court erred when it denied its motion for judgment notwithstanding the verdict because, as a matter of law, Massman could not satisfy the requirements for a breach of warranty ex contractu cause of action. We affirm.

In 1983, Massman entered into a contract with the commission to do substructure work for a bridge over the Missouri River on U.S. 40 and U.S. 61 near St. Charles and Chesterfield. Before Mass-man began construction, Massman and the commission discovered that a rock revetment, which was not shown on the commission’s project plan, would interfere with the placement of one of the bridge’s piers. The commission told Massman to remove it. Massman sued the commission for a breach of warranty ex contractu and sought damages arising from its having to remove the rock revetment from the river.

This dispute between Massman and the commission has been ongoing since 1988 and has resulted in three trials and four appeals. In the first trial, the circuit court granted summary judgment to Massman on the issue of liability only and ordered the parties to try the issue of damages only to a jury. The jury awarded Massman $1,922,821.28. The commission appealed, and this court reversed. We ruled that, because the commission had evidence that Massman knew that the revetment was at the site before construction — Massman had put it there pursuant to a contract with the U.S. Army Corps of Engineers in 1979 — the circuit court erroneously granted summary judgment. We concluded that the circuit court should have permitted the jury to hear the commission’s evidence. Massman Construction Company v. Missouri Highway and Transportation Commission, 835 S.W.2d 465 (Mo.App.1992) (Massman I).

The circuit court held a second trial. That jury, after hearing the additional evidence, returned a verdict of only $250,000 for Massman. Massman asked the circuit court to increase the jury’s award to $1,922,821.28, the amount of the jury verdict in the first trial. The circuit court did not increase the jury award but found that the jury’s award was inadequate and ordered a new trial on damages only. The commission appealed, and the Supreme Court transferred the case to that court. The Supreme Court reversed the circuit court’s order granting a new trial and remanded the case so the circuit court could enter a proper response to Massman’s motion for additur. The Supreme Court said, “To overrule the motion for additur and at the same time grant a new trial when no new trial was sought was reversible error.” Massman Construction Company v. Missouri Highway and Transportation Commission, 914 S.W.2d 801, 804 (Mo. banc 1996) (Massman II).

On remand, the circuit court entered an order increasing the jury verdict from $250,000 to $750,000, but it gave the commission the option of accepting the increased verdict or having a new trial on the issue of damages only. The commission again appealed to this court, and we reversed and remanded with instructions that the circuit court offer the commission the choice of accepting the $750,000 award to Massman or retrying the case on all issues. Massman Construction Company v. Missouri Highway and Transportation Commission, 948 S.W.2d 631 (Mo.App. 1997) (Massman III).

On remand, the commission chose a new trial on all issues. This trial resulted in a judgment for Massman in the amount of $850,000 plus interest, and the commission appeals this judgment. It claims that the circuit court erred when it denied its motion for judgment notwithstanding the verdict because, as a matter of law, Massman could not satisfy the requirements for a breach of warranty ex contractu cause of action.

In reviewing the circuit court’s denial of the commission’s motion for judgment notwithstanding the verdict, we must determine whether Massman made a sub-missible case. Seitz v. Lemay Bank and Trust Company, 959 S.W.2d 458, 461 (Mo. banc 1998). In doing so, we review the evidence and all reasonable inferences in the light most favorable to the jury’s verdict and disregard contrary evidence. Id. “[We] will reverse the jury’s verdict for insufficient evidence only where there is a ‘complete absence of probative fact’ to support the jury’s conclusion.” Id. (citation omitted). When reasonable minds can differ on a question put to a jury, the court may not disturb the jury’s verdict. Uptergrove v. Housing Authority of City of Lawson, 935 S.W.2d 649, 652 (Mo.App. 1996).

Before a contractor can recover against a governmental entity for breach of warranty ex contractu, the evidence must establish that the governmental entity made a positive representation of material fact that was false and that the contractor lacked knowledge of the falsity and relied on and sustained damages as a direct result of the governmental entity’s positive representation of material fact. Ideker, Inc. v. Missouri State Highway Commission, 654 S.W.2d 617, 621 (Mo.App.1983). The evidence established that when Massman submitted its bid to the commission for the substructure work for the bridge, the commission’s plan did not indicate the presence of the rock revetment in the river. In formulating its bid, Massman relied on the commission’s plan and did not account for the removal of the revetment in its bid. The commission contends, however, that as a matter of law Massman could not'—and cannot—satisfy the requirement that it lacked knowledge about the rock revetment because Mass-man placed the rock revetment in the river.

Before reaching the commission’s contention, we consider Massman’s contention that the doctrine of the law of the case prevented the circuit court from even considering the commission’s motion for judgment notwithstanding the verdict and declaring as a matter of law that Massman could not satisfy the requirements for a breach of warranty ex contractu. Mass-man contends that, because this court held in Massman I that a genuine issue of material fact existed as to whether Mass-man had knowledge that the representation in the commission’s plan was false, this court necessarily concluded that it could not find, as a matter of law, that Massman had knowledge of the plan’s false representation. We disagree.

“Unless there is a change in the issues or the evidence, the court of appeals’ previous holding constitutes the law of the case and concludes any issues decided on remand and subsequent appeal.” Kansas City v. Keene Corporation, 855 S.W.2d 360, 366 (Mo. banc 1993). In Massman I, this court’s decision pertained to the propriety of the circuit court’s granting summary judgment for Massman on the issue of liability. In deciding that the circuit court improperly granted summary judgment, we found:

At the time [that the circuit court] granted Massman’s summary judgment on the issue of liability, the court was aware that Massman had admitted that it had actually placed rock in the River near the construction site. In view of this admission, it was apparent that there was a question of material fact in issue as to the knowledge by Massman of the existence of the rock where Pier 6 was to be placed. The existence of a question of material fact prevents the entry of summary judgment. Maryland Cas. Co. v. Martinez, 812 S.W.2d 876, 879[1-4] (Mo.App.1991).
Although evidence came in at trial that Massman had placed rock in the River near the project, such evidence lost all significance when the jury was instructed that it needed to find only that Massman sustained damage as a direct result of a positive representation by the Commission that Pier 6 could be constructed without encountering the rock dike. Such instruction was tantamount to a directed verdict in favor of Massman and completely ignored the Ideker requirement that Massman prove its lack of knowledge of the existence of the rock dike.

835 S.W.2d at 469. We did not determine or address whether, as a matter of law, Massman’s knowledge prevented Massman from satisfying the requirements for a breach of warranty ex contractu. We reversed because the circuit court’s “summary judgement on the question of liability allowed Massman to recover without meeting its burden to show that it had no knowledge of the existence of the rock.” Id. We merely determined that Massman did not meet its burden. We never determined whether Massman was prohibited from recovering. By reversing, we, in essence, ordered that the circuit court allow the parties to explore the issue of Mass-man’s knowledge more fully. Hence, the issue of whether Massman’s knowledge precludes it from recovering for breach of warranty ex contractu is now squarely before us.

The commission, however, confuses the issue in this case. The issue is not whether Massman knew that it placed the rock revetment in the river. Indeed, Massman does not dispute that it put the rock revetment in the river. The issue is whether Massman knew when bidding the job in 1983 that the revetment would interfere with the construction of the bridge and, therefore, knew that the commission’s representation in its plan was false or incorrect. The commission incorrectly asserts, “Whether [Massman] could place the revetment squarely on the planned footprint of Pier 6 is irrelevant.... Mass-man’s knowledge, if diluted to only knowing [it] had placed tons of ... rock in the Missouri River in the vicinity of Pier 6, would be enough to bar recovery under Ideker [.]” Indeed, whether Massman knew that the revetment would interfere with Pier 6 is precisely the issue. Although Massman placed the rock revetment in the river in 1979, such knowledge does not establish that Massman knew that the revetment would interfere with the bridge’s construction at Pier 6.

The commission merely relies on Mass-man’s knowledge of the rock revetment in 1979 and asserts that, because Massman had knowledge of the rock revetment when it built it in 1979, Massman is precluded from recovering for breach of warranty ex contractu. We disagree. Nothing in the record establishes, as a matter of law, that Massman had knowledge that the rock revetment would interfere with the bridge’s construction at Pier 6. In fact, the evidence was hotly disputed about the extent of Massman’s knowledge.

The evidence established that in the 10 years before the bridge project Massman had over 40 contracts with the United States Army Corps of Engineers to build more than 2000 structures in the river, including revetments. The contract for the revetment at issue in this case required Massman to build other rock structures involving multiple types of construction in 23 locations over 28 miles of the river. The evidence also established that the Corps of Engineers placed approximately 120 structures, including revetments or dikes, in the river a year and that they altered existing structures and even removed some revetments from the river.

In building revetments for the Corps, the Corps neither required contractors to keep records of the locations where they performed work on the river nor expected contractors to locate, without the Corps assistance, the proper place in the river to put the revetments. The Corps used a coordinate system and placed stakes on the riverbank to allow contractors to locate the area for placement of the revetments. The contractors then built the revetment by pushing large rocks off a barge at the location chosen by the Corps. In regard to Massman’s contract with the Corps to build the revetment, Floyd Keith Jacobson, Massman’s vice president of operations and a civil engineer, testified that using information supplied by the contract to locate the revetment in relation to the bridge project was not possible. At most, the evidence established that Massman knew that the revetment was near the bridge — not that Massman knew that the revetment would interfere with construction of Pier 6.

Moreover, the evidence established that, before issuing the permit to the commission for the construction of the bridge, none of the Corps’ documents mentioned any conflicts between the proposed bridge and the existing revetment. Massman’s witness, John Elmore, the Corps’ retired chief of operations, testified that, had the Corps known of a conflict between the proposed bridge and the existing revetment, he would have expected the Corps to disclose the conflict in its engineering report made in response to the commission’s request for a permit.

Although the commission offered contrary evidence, the jury was free to disbelieve it. Massman presented sufficient evidence for the jury to conclude that Massman did not know that the revetment would interfere with construction of Pier 6. Given the evidence, the circuit court did not err in denying the commission’s motion for judgment notwithstanding the evidence. Although the commission established that Massman put the rock revetment in the river in 1979, reasonable minds could differ as to whether Massman knew that the revetment would interfere with construction of Pier 6 of the bridge. Viewing the evidence in the light most favorable to Massman, we conclude that Massman made a submissible case to establish a breach of warranty ex contractu.

We affirm the circuit court’s judgment.

PATRICIA BRECKENRIDGE, Judge, and THOMAS H. NEWTON, Judge, concur.

      . The commission did enter into evidence a copy of the Corps’ river chart. Mark Trem-mell, the commission's engineer, testified that, based upon his analysis of the chart, he concluded that the chart establishes that Pier 6 of the bridge and the rock revetment would occupy the same space.


author: CLIFFORD H. AHRENS, Presiding Judge.

text:
    Richard J. SISCO, Plaintiff/Appellant, v. THE BOARD OF TRUSTEES OF THE POLICE RETIREMENT SYSTEM OF ST. LOUIS, et al., Defendants/Respondents.
    No. ED 77049.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 29, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      J.W. Gabriel, St. Louis, for appellant.

      Mark Lawson, St. Louis, for respondents.
   CLIFFORD H. AHRENS, Presiding Judge.

Richard J. Sisco (“Officer Sisco”) filed an action against the Board of Trustees of the Police Retirement System of the City of St. Louis (“Board of Trustees”) seeking a declaratory judgment that the Board of Trustees was not permitted, under section 86.297 RSMo (1994), to offset his workers’ compensation against his disability retirement allowance where both benefits were receivable on account of the same injury. Following a bench trial, the Circuit Court of the City of St. Louis entered judgment allowing the offset, but reducing the amount of workers’ compensation to be applied as an offset by the amount of attorney’s fees and related expenses incurred by Officer Sisco in connection therewith. The judgment also reduced the amount of retirement benefits subject to setoff by Officer Sisco’s “accumulated contributions” to the Police Retirement System of the City of St. Louis (“Retirement System”). Officer Sisco appeals the judgment insofar as it allows the offset. The Board of Trustees cross-appeals to the extent the judgment excludes the attorney’s fees and accumulated contributions from the offset calculation. We affirm.

Officer Sisco was commissioned as a police officer by the Board of Police Commissioners of the City of St. Louis (“Board of Police Commissioners”) in June 1967. As a condition of employment, Officer Sisco was required to become a member of the Retirement System. Section 86.207. As a member, Officer Sisco was obligated to contribute seven percent of his salary for each pay period into the “members’ savings fund.” Section 86.320. Such contributions were entitled to earn interest, section 86.303, with the sum of the two to be known as his “accumulated contributions.” Section 86.200.1(1). When a member is entitled to receive benefits from the Retirement System, other than benefits consisting solely of a refund of that member’s contributions, such benefits are paid from the “benefit reserve fund.” Section 86.323. The benefit reserve fund consists of a member’s accumulated contributions, which are transferred from the members’ savings fund at the time the payment of benefits is approved, plus an “additional amount from the general reserve fund as is calculated by the actuary to be necessary with the member’s contributions to provide the payment of all benefits arising from the service of such member.” Section 86.323. Monies in the general reserve fund are contributed by the City. Section 86.327.

In January 1985, Officer Sisco was severely and permanently injured in a motor vehicle accident while on duty. In April of that year, Officer Sisco filed a claim for workers’ compensation under chapter 287 RSMo. For reasons not apparent to this court from the record, such claim was not heard by the Division of Workers’ Compensation until December 1992. Meanwhile, the Board of Trustees retired Officer Sisco on August 1, 1986, pursuant to section 86.263, because his injuries rendered him totally and permanently incapacitated for the further performance of duty. On the same date, Officer Sisco began receiving a disability retirement allowance pursuant to section 86.267.1 in the amount of $1,670.40 per month.

In March, 1993, the Division of Workers’ Compensation awarded to Officer Sisco: (1) $25,071.40 for medical expenses; (2) 75 ⅛ weeks of temporary total disability benefits at $222.73 per week ($16,736.57); (3) permanent total disability benefits of $222.73 per week for the remainder of his life; and (4) 344 weeks of past-due permanent total disability benefits at 222.73 per week ($76,619.12). This award was not appealed and therefore became final thirty days thereafter. Section 287.495. Officer Sisco did not begin receiving his benefits until January 1996, however, again for reasons not apparent from the record. As payment for amounts past due under categories (2) and (4), plus interest thereon, Officer Sisco received a lump-sum payment of $131,679.65.

Because Officer Sisco was receiving both workers’ compensation and disability retirement benefits for the same injury, the Board of Trustees elected to offset the former against the latter pursuant to section 86.297, which provides in relevant part:

Any amounts which may be paid or payable by the [City of St. Louis] under the provision of any workers’ compensation or similar law to a member ... on account of any disability ... shall be offset against and payable in lieu of any benefits payable out of funds provided by the [City of St. Louis] under the provisions of sections 86.200 to 86.363 on account of the same disability....

The offset became effective January 1, 1996, and consisted of two separate reductions to Officer Sisco’s monthly disability retirement allowance of $1,670.40. First, such amount would be permanently reduced by $965.16, the average amount he was to receive per month as permanent total disability workers’ compensation benefits. Second, the amount would be temporarily reduced by $705.24 (the amount remaining after $965.16 is deducted) until the $131,679.65 lump-sum payment for past-due workers’ compensation is recouped. The underlying declaratory judgment action followed.

Officer Sisco raises four points of error, each challenging the application of section 86.297. The Board of Trustees raises two points of error, challenging the exclusion from the setoff calculation of attorney’s fees and accumulated contributions, respectively. Our standard of review of this court-tried case is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976): we will affirm the judgment of the trial court unless it is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. We will first address Officer Sisco’s points, then those of the Board of Trustees.

In his first point, Officer Sisco claims the trial court erroneously applied section 86.297 because his workers’ compensation benefits are not “paid or payable” by the City of St. Louis (“City”), as required by that section. Officer Sisco’s argument is premised on section 287.120.1, which holds a worker’s employer hable to furnish workers’ compensation. Officer Sisco contends the Board of Police Commissioners, and not the City, was his employer, such that the City had no obligation to furnish workers’ compensation under chapter 287 RSMo.

We agree that the Board of Police Commissioners was Officer Sisco’s employer. We disagree, however, that the City had no obligation to furnish workers’ compensation. Although the Board of Police Commissioners, as Officer Sisco’s employer, was required to furnish his workers’ compensation pursuant to section 287.102.1, it pays its expenses with funds received from the City, which the City is obligated by statute to provide. See sections 84.160.5 and .210 RSMo (1994 & Cum.Supp.1999). For purposes of section 86.297, therefore, Officer Sisco’s workers’ compensation benefits are “payable” by the City.

Our holding in this regard is consistent with the Missouri Supreme Court’s interpretation of section 86.297 that only the portion of workers’ compensation payments that represents lost wages should be used to offset retirement benefits. Sheldon v. Board of Trustees of Police Retirement System, 779 S.W.2d 553 (Mo. banc 1989). In that case, the Court stated that the purpose of section 86.297 “is to prevent double compensation for one injury, thus giving the injured person a windfall.” Id. at 557. In the present case, Officer Sisco’s disability retirement allowance and his workers’ compensation benefits serve to compensate him for lost wages as a result of service-related injuries sustained in January 1985. Consequently, the purpose of section 86.297 would be frustrated by refusing to allow the offset.

In his second point, Officer Sisco argues the setoff was improper because it effectively forces him to fund his workers’ compensation benefits in violation of section 287.290, which provides, “No part of the cost of [workers’ compensation] insurance shall be assessed against, collected from or paid by any employee.” Because we hold that Officer Sisco’s accumulated contributions are not subject to setoff, see the Board of Trustee’s second point relied on, infra, he is receiving them in addition to his workers’ compensation benefits, not in lieu thereof. In no way is he paying any portion of his workers’ compensation benefits. Accordingly, this point is without merit.

Officer Sisco’s third point contends the offset was improper for equitable reasons. As he correctly observes, police officers are the only class of City “servants” whose disability retirement benefits are subject to an offset by workers’ compensation. Accordingly, he argues, the statute is “patently inequitable, unfair, and unjust.”

When construing a statute, the court’s goal is to give effect to the intent of the legislature in enacting the statute. Maudlin v. Lang, 867 S.W.2d 514, 516 (Mo. banc 1993). Our initial task, therefore, is to ascertain that intent. Id. We do this by first consulting the language of the statute, giving its terms their plain and ordinary meaning. Id. If the language is unambiguous, that is, it is plain and clear to one of ordinary intelligence, Williams v. State, Dept. of Soc. Serv., Div. of Family Serv., 978 S.W.2d 491, 493 (Mo.App.1998), we are generally constrained to apply it as written and may not resort to rules of construction. Garland v. Director of Revenue, 961 S.W.2d 824, 827 (Mo. banc 1998); Bosworth v. Sewell, 918 S.W.2d 773, 777 (Mo. banc 1996). We will, however, resort to rules of construction where the terms of the statute: (1) are ambiguous; or (2) are unambiguous, but, when given their ordinary meaning, produce an illogical or absurd result in light of the statute’s purpose. Vocational Serv., Inc. v. Developmental Disabilities Resource Bd., 5 S.W.3d 625, 630 (Mo.App.1999); Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo. banc 1998).

Officer Sisco contends section 86.297 is “poorly drafted.” We disagree. The statute plainly provides for an offset of workers’ compensation benefits against benefits paid from the Retirement System where both are paid on account of the same injury. The fact that the General Assembly subjected the disability retirement benefits of police officers to an offset but not those of other servants of the City, e.g., fireman, does not create an ambiguity. Because the statute is unambiguous, however, we cannot disregard its plain meaning in favor of a rule of construction.

In his fourth and final point, Officer Sisco contends the offset was improper because there was no substantial evidence adduced at trial to show that the City contributed funds to the Retirement System. Section 86.287 permits workers’ compensation to be offset only against “funds provided by the [City].” There being no evidence that the City actually provided such funds, Officer Sisco argues there could be no offset.

As previously discussed, Officer Sisco’s disability retirement allowance is paid from the benefit reserve fund, which consists of his accumulated contributions of $34,124.98 plus an additional amount from the general reserve fund as has been calculated to be necessary to provide for the full payment of his benefits. See section 86.323. Such additional amount is required by statute to be contributed by the City. See section 86.327. According to our calculations, Officer Sisco received a total of $187,040.80 in disability retirement benefits prior to the offset. The record does not indicate what portion of this amount represented a return of Officer Sisco’s accumulated contributions. This does not matter, however, because the amount received by Officer Sisco as retirement benefits greatly exceeded the amount of his accumulated contributions. Section 86.327 obligates the City, and only the City, to provide this additional amount. Accordingly, evidence that Officer Sisco received retirement benefits in excess of the amount of his accumulated contributions is sufficient to establish that the City contributed funds to the Retirement System, making the offset proper.

In its first point of error on cross-appeal, the Board of Trustees contends the trial court erroneously applied section 86.297 by reducing the amount of the workers’ compensation award to be offset against retirement benefits by the attorney’s fees and related expenses incurred by Officer Sisco. We disagree. Under Sheldon, “[t]he purpose of this setoff is to prevent double compensation for one injury, thus giving the injured person a windfall.” 779 S.W.2d at 557. In Sheldon, the court did not allow the “Pension System to offset its payments made under worker’s compensation for nursing care.” Id. The court held that payment for nursing care did not double compensate the claimant fulfilling the purpose of section 86.297. Id.

In the present case, the trial judge excluded attorney’s fees and expenses from the offset provision in accord with Sheldon. To the extent that Officer Sisco had to pay attorney’s fees and related expenses to obtain his workers’ compensation award, he did not receive a windfall. Officer Sis-co’s workers’ compensation award was subject to a lien in the amount of 25% in favor of his attorney. The award amount subject to the lien will not go to Sisco but to his attorney; therefore, Sisco is not receiving a windfall. The trial court correctly reduced Officer Sisco’s workers’ compensation offset by the attorney’s fees and related expenses incurred in connection with his workers’ compensation claim.

The Board of Trustees’ second point contends the trial court erroneously applied section 86.297 by excluding Officer Sisco’s accumulated contributions from the amount of retirement benefits subject to setoff. Section 86.297 authorizes the offset of workers’ compensation against “any benefits payable out of funds provided by the [City] [emphasis added].” We have already established that Officer Sisco’s retirement benefits were paid with his accumulated contributions plus an additional amount provided by the City. See sections 86.323, 327. Obviously, the latter amount constituted “funds provided by the City” and, therefore, was subject to setoff. Conversely, Officer Sisco’s accumulated contributions were not funds provided by the City, and, therefore, were properly excluded from the setoff calculation by the trial court. “Accumulated contributions” represent the sum of: (1) a member’s direct contributions to the Retirement System; and (2) the interest thereon. See section 86.200.1(1) RSMo (1994 & Cum. Supp.1999). Of Officer Sisco’s accumulated contributions of $34,124.98, $20,090.86 represents his direct contributions to the Retirement System. Clearly, these were not funds provided by the City. The remaining $14,034.12 represents interest. Section 86.303 provides (with emphasis added):

The board of trustees annually shall allow regular interest on the mean amount for the preceding year in each of the funds with the exception of the expense fund. The amount so allowed shall be due and payable to said funds and shall be annually credited thereto by the board of trustees from interest and other earnings on the moneys and other assets of the retirement system. ...

As the italicized language indicates, the interest credited to Officer Sisco’s contributions to the Retirement System was not paid from funds provided by the City.

Despite the plain meaning of “funds provided by the City,” the Board of Trustees argues the legislative intent of section 86.297 is to subject accumulated contributions to an offset even though they are not provided by the City. The Board of Trustees directs our attention to three provisions of chapter 86 RSMo which specifically provide for the repayment of members’ contributions to the Retirement System and, in certain situations, the interest thereon: section 86.253.4 RSMo (1994 & Cum.Supp.1999), section 86.267.4 RSMo (Cum.Supp.1999), and section 86.290. The Board of Trustees argues that, by enacting these provisions, the General Assembly intended to return contributions and interest only in the specific circumstances to which these provisions apply. Because these provisions do not apply to Officer Sisco, the Board of Trustees claims the exclusion of his accumulated contributions from the offset will repay him that amount in contravention of the General Assembly’s intent.

It is true that, when clearly necessary, the strict letter of a statute must yield to the manifest intent of the legislature. Brownstein v. Rhomberg-Haglin & Assoc., Inc., 824 S.W.2d 13, 16 (Mo. banc 1992). This tenet is inapplicable here, however, because we do not find the plain meaning of section 86.297 to conflict with the General Assembly’s intent. The Board of Trustees’ position that the General Assembly intended to return contributions only where sections 86.253.4, .267.4, and .290 apply is predicated on an apparent misunderstanding of the retirement scheme created by sections 86.200 — -.363. The plain language of section 86.323 makes clear that accumulated contributions are returned to members receiving retirement benefits, albeit in installments and not as a lump-sum repayment. Conversely, where they apply, sections 86.253.4, .267.4, and .290 provide for the lump-sum repayment of members’ contributions and, in certain cases, the interest thereon, as an additional benefit to those to which the member is otherwise entitled to receive.

The judgment of the trial court is affirmed.

WILLIAM H. CRANDALL Jr., J., concurs.

JAMES R. DOWD, J., concurs.

      . References to the "Board of Trustees” include its individual members, who were also named as defendants.

      . All statutory references herein are to RSMo (1994) unless otherwise indicated.

      .This amount had already been paid by the Board of Police Commissioners and was not applied as an offset against Officer Sisco's disability retirement allowance.

      .The bracketed term "[City of St. Louis]” replaces the phrase "the said cities,” which means those cities having on October 1, 1957, or which thereafter attain, a population of 700,000 inhabitants or more. See section 86.203. Although the City of St. Louis no longer has such a population, it did as of the relevant date, such that sections 86.200— .363, those sections of chapter 86 RSMo governing police retirement systems in cities having a population of 700,000 inhabitants or more, still apply. See State ex rel. McNeal v. Roach, 520 S.W.2d 69, 75 (Mo. banc 1975) (finding, in accordance with legislative intent, that a subsequent decrease in population does not affect the applicability of statutes governing cities which at one time had a population of 700,000 inhabitants or more).

      . The calculation is as follows: $222.73 (amount to be received per week) multiplied by 52 (weeks in one year) divided by 12 (months in one year) equals $965.16 per month.

      . This would take approximately 15½ years.

      . Section 287.030.2 provides, “Any reference to the employer shall also include his insurer.”

      . The determination of whether an employer-employee relationship exists is generally based on the potential employer’s "right of control” over the potential employee. Davis v. Human Development Corp., 705 S.W.2d 540, 542 (Mo.App.1985). Although the compensation of officers of the St. Louis Metropolitan Police Department is ultimately paid by the City, see section 84.160.5 RSMo (1994 & Cum.Supp.1999), the Board of Police Commissioners determines that compensation (within statutory limits). See section 84.160 RSMo (1994 & Cum.Supp.1999). Moreover, only the Board of Police Commissioners has authority to appoint and discipline police officers. See sections 84.100 and .170.2. The Board of Police Commissioners had a greater right of control over Officer Sisco than did the City and, thus, was his employer. This finding is consistent with Sheldon v. Board of Trustees of Police Retirement System, 779 S.W.2d 553, 554 (Mo. banc 1989), which noted — without analysis — that the Board of Police Commissioners employs officers of the St. Louis Metropolitan Police Department and is, therefore, liable for their workers' compensation.

      . There exists a rule of construction that admonishes courts to avoid construing statutes in a manner that produces an unjust or unreasonable result. See, e.g., Rusk v. Rusk, 859 S.W.2d 751, 753 (Mo.App. 1993). We emphasize, however, that where a statute is unambiguous, there is nothing for the court to construe. See Brownstein v. Rhomberg-Haglin & Assoc., Inc., 824 S.W.2d 13, 15 (Mo. banc 1992).

      . Our calculation is as follows: $1,670.40 (monthly disability retirement allowance) multiplied by 112 months (August 1, 1986 through December 1, 1995) equals $187,-084.80. The trial court’s findings of fact state that Officer Sisco received a total of $131,679.65 in disability retirement benefits prior to the offset. Because the record contains no evidence to support this figure, we will adhere to our calculation.

      . This amount is unknown but irrelevant for purposes of this appeal.

      . Section 86.253.4 requires the repayment of the total amount of a member’s contribution to the Retirement System, without interest, upon a service retirement, which is voluntary upon twenty years of service or attaining age fifty-five and mandatory at age sixty-five. This repayment is in addition to the member’s service retirement allowance.
      Section 86.267.4 provides that, where a member has been retired because of a service-related permanent total disability (i.e., unable to perform work of any kind) and agrees to serve as a special consultant to the Board of Trustees on the problems of retirement and aging, such member is entitled to receive as compensation for such service the total amount of his or her contributions to the Retirement System, without interest. Such payment is in addition to the member’s disability retirement allowance. Section 86.290 requires the repayment of a member's accumulated contributions where the member ceases to be a police officer by reason other than death or retirement.


author: RONALD R. HOLLIGER, Judge.

text:
    Jonathon DANIELS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 57813.
    Missouri Court of Appeals, Western District.
    Sept. 5, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 31, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Andrew A. Schroeder, Asst. Public Defender, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
   RONALD R. HOLLIGER, Judge.

Jonathon Daniels appeals the dismissal of his pro se Rule 24.085 motion upon the basis that it was untimely filed. Daniels pled guilty to one count of sale of a controlled substance, § 195.211, RSMo and two counts of trafficking in the first degree, § 195.211. He was sentenced to concurrent terms of 10 years imprisonment and delivered to the Department of Corrections on October 7, 1998. He claims that he mailed a pro se motion for post-conviction relief on November 26, 1998. Such motions must be filed within 90 days after a prisoner’s delivery to the department of corrections. Rule 24.035(b). Daniels filed the motion now at issue pro se on May 19, 1999, well beyond the filing deadline under Rule 24.035(b).

The post-conviction court must make findings of fact and conclusions of law. Our review is limited in scope. Rule 24.035(k). Unless the findings of fact and conclusions of law are clearly erroneous, we must uphold the trial court’s determination. State v. Miller, 935 S.W.2d 618, 625 (Mo.App.1996). The trial court’s determination is clearly erroneous only if the appellate court is left with a firm and definite belief that a mistake has been made. State v. Brown, 966 S.W.2d 332, 336 (Mo.App.1998). After the circuit court dismissed his Rule 24.035 motion Daniels’ appointed counsel filed a motion to reconsider alleging that Daniels had mailed an earlier pro se motion nearly six weeks before the deadline. A copy of a handwritten Form 40 notarized November 25, 1998, was attached. The unverified motion to reconsider included no affidavit from Daniels and contained no details as to the manner and method of notarization and mailing from the correctional facility.

Daniels’ sole point on appeal is that the trial court erred in concluding that the filing deadline is absolute and makes no provision for the late fifing of a pro se Rule 24.035 motion upon a showing of good cause and that he pled facts not refuted by the record which, if true, demonstrate good cause for his late fifing. He makes no claim that he has been denied due process because of the manner and method by which his claimed original pro se motion was handled by prison authorities. Daniels relies on Ivy v. Caspari, 173 F.3d 1136 (8th Cir.1999). In Ivy, a Missouri prisoner seeking general habeas relief was faced with a claim that he had failed to exhaust his state remedies by failing to timely file his Rule 24.035 motion. Ivy claimed that he had delivered his motion to a prison employee for mailing six days before the expiration of his filing deadline. There was no evidence that the reason for non-delivery was any fault, interference or failure of state prison officials. Nevertheless, the 8th Circuit held that “it is the fact of non-delivery of a prisoner’s timely and properly mailed motion, not the reason for that non-delivery, that constitutes cause for the [late filing].” Id. at 1141. The ruling in Ivy, however, was in the context of whether there was good cause for federal habeas purposes for the prisoner’s failure to exhaust state remedies.

We are bound by the decisions of the Missouri Supreme Court, Mo. Const., Art V, Sec. 2 (194-5). State v. Simpson, 813 S.W.2d 323, 323 (Mo.App.1991), cert. denied, 502 U.S. 1109, 112 S.Ct. 1209-10, 117 L.Ed.2d 448. In numerous decisions the Supreme Court has held that the time limits are mandatory and constitutional. Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). State v. Simmons, 955 S.W.2d 752, 771 (Mo. banc 1997). The only recognized exception by the Supreme Court has dealt with situations of abandonment by counsel in the context of filing a timely amended motion under Rule 24.035(g). Luleff v. State, 807 S.W.2d 495, 497 (Mo. banc 1991).

The intermediate appellate courts have previously been presented as herein with a bare allegation of timely mailing devoid of any proof of governmental interference. They have declined to adopt a prison mailbox rule. In Vollmer v. State, 775 S.W.2d 230, 231 (Mo.App.1989), the Eastern District held that the “motion was not filed when mailed, but when lodged in the circuit clerk’s office....” Id. at 231. We have also reached the same conclusion in O’Rourke v. State, 782 S.W.2d 808, 809-10 (Mo.App.1990). We reaffirmed that position in Seward v. State, 871 S.W.2d 16 (Mo.App.1993). The Southern District likewise rejected a “mail box” rule in Garrison v. State, 11 S.W.3d 868 (Mo.App.2000). Ivy is not binding upon a state court interpreting and applying its own post-conviction relief time deadlines. See Garrison at 868 (citing O’Rourke v. State, 782 S.W.2d 808, 809 (Mo.App.1990)), where this court held it was not bound by a case merely interpreting Federal Rules of Appellate Procedure in a federal habeas corpus proceeding.

Daniels has provided no alleged facts or claim of fact that would take his claim out of the previous decisions that mere timely mailing constitutes filing or good cause for untimely receipt or non-delivery. We are therefore duty bound to follow the prior holdings that the time limits for post-conviction motions are both strict and mandatory.

The judgment dismissing the pro se Rule 24.035 motion is affirmed.

HAROLD L. LOWENSTEIN, Presiding Judge, and ROBERT G. ULRICH, Judge, concur.

      . All statutory references are to RSMo 1994 unless otherwise indicated.

      . For pleas of guilty where there has been no appeal from the'judgment or sentence.

      . The signature line under the motion allegations was blank; the included affidavit in forma pauperis was signed.

      .The Boone County Circuit Court dismissed his motion as untimely and this court affirmed. Ivy v. State, 792 S.W.2d 12 (Mo.App.1990).


author: PER CURIAM.

text:
    Derelle PINNER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 77099.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 12, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 30, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Mary S. Choi, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
    Before GARY M. GAERTNER, P.J., LAWRENCE G. CRAHAN, J., and GEORGE W. DRAPER, III, J.
   ORDER

PER CURIAM.

Derelle Pinner (“Movant”) appeals from the judgment denying his Rule 29.15 motion to vacate, set aside or correct his judgment and sentence without an eviden-tiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court’s determination is not clearly erroneous. Rule 29.15(k). An extended opinion would be of no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


author: KENNETH W. SHRUM, Judge.

text:
    Adam HAMILTON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 23518.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 15, 2000.
    Motion for Rehearing and Transfer Denied Oct. 10, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Mark A. Grothoff, Asst. Public Defender, Columbia, for appellant.
    Jeremiah A. (Jay) Nixon, Atty. Gen., Andrea L. Mazza, Asst. Atty. Gen., Jefferson City, for respondent.
   KENNETH W. SHRUM, Judge.

This is a Rule 29.15 case in which the motion court dismissed Movant’s request for post-conviction relief without an evi-dentiary hearing. Movant appeals, charging the motion court with reversible error for not holding an evidentiary hearing on his ineffective assistance allegation that his trial lawyer mishandled a prosecutorial conflict issue. We disagree. In Movant’s direct appeal, we found no “manifest injustice” or “miscarriage of justice” resulted from the prosecutorial conflict problem. Our finding in Hamilton I forecloses Mov-ant from relitigating this issue as a post-conviction claim. We affirm.

A jury convicted Movant of one count of robbery in the first degree, § 569.020, one count of assault in the first degree, § 565.050, and two counts of armed criminal action, § 571.015. Because he was a prior and persistent offender, the trial court imposed the sentences.

Movant appealed the judgment to this court, maintaining “[t]he trial court erred in.overruling [Movant’s] objection and letting [a disqualified prosecutor] help select the jury.” Hamilton, 996 S.W.2d at 761. Because this claim of trial court error was neither preserved nor properly briefed, we reviewed Movant’s point “only for plain error.” Id. at 761-62. We affirmed the judgment after finding “no manifest injustice or miscarriage of justice” resulted from the prosecutor’s misconduct. Id. at 763.

After incarceration, Movant timely filed both pro se and amended motions for post-conviction relief pursuant to Rule 29.15. Movant alleged, inter alia, he was denied effective assistance of counsel because his trial lawyer “failed to specifically object to the State’s strikes of venirepersons, failed to request any remedial action for the prosecutorial misconduct, and failed to assert the prosecutorial misconduct in the motion for new trial.”

The motion court dismissed Movant’s Rule 29.15 motion without an evidentiary hearing. On appeal, Movant raises only one point of error. In relevant part, Mov-ant’s point reads:

“The motion court clearly erred in denying [Movant’s] motion for post-conviction relief because ... [Movant] was denied due process of law and effective assistance of counsel ... in that a prosecuto-rial conflict of interest arose when a disqualified prosecutor assisted the special prosecutor with jury selection and ... [Movant’s] trial counsel ... failed to specifically object to the State’s strikes of venirepersons, failed to request any remedial action and failed to assert the prosecutorial misconduct in appellant’s motion for new trial.”

A motion court is not required to grant a movant an evidentiary hearing on a claim unless (1) the movant pleads facts, not conclusions, which if true would warrant relief, (2) the facts alleged are not refuted by the record, and (3) the matters complained of resulted in prejudice to the movant. State v. Blankenship, 830 S.W.2d 1, 16[27] (Mo.banc 1992).

To prevail on a claim of ineffective assistance of counsel, a movant must show: First, that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and, second, counsel’s deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). Prejudice under the Strickland analysis is shown where “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would be different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068.

If it is easier to dispose of a claim of ineffective assistance of counsel on the ground there was not sufficient prejudice, a court should follow that course. Sidebottom v. State, 781 S.W.2d 791, 796[9] (Mo. banc 1989). There is no reason for a court to address both components of the test if the movant fails to make a sufficient finding on one. Id.

Here, Movant has generally ignored the prejudice prong of an ineffective assistance of counsel claim or has demonstrated his misunderstanding thereof.

First, Movant pleads prejudice in his Rule 29.15 motion in only the most conclu-sory fashion, i.e., “as a result, movant was prejudiced.” Such conclusory pleading of an essential element of a post-conviction case supports the dismissal entered by the motion court. See State v. Brooks, 960 S.W.2d 479, 497[42] (Mo.banc 1997).

Second, we note Movant’s point relied on makes no claim he was prejudiced by his lawyer’s alleged ineffectiveness. “The questions for decision on appeal are those stated in the points relied on; a question not there presented will be considered abandoned.” Schmidt v. Warner, 955 S.W.2d 577, 583[5] (Mo.App.1997). Movant’s position on the prejudice issue only appears in the argument part of his brief. “Issues to which an appellant alludes only in the argument portion of his brief are not presented for review.” Perry v. State, 11 S.W.3d 854, 859 n. 4[16] (Mo. App.2000).

Third, Movant’s belated briefing of prejudice relies on the principle that “[i]n a criminal case involving a prosecutorial conflict of interest, the accused does not have to show prejudice; prejudice is presumed.” See e.g., State v. Ross, 829 S.W.2d 948, 952[1] (Mo.banc 1992); State v. Reinschmidt, 984 S.W.2d 189, 192 (Mo.App.1998). As sound as the rule is in some cases, it has no application here. The rule attends in direct appeals involving preserved claims of trial court error in its rulings on prosecutorial conflict of interest questions. This is not the situation here. This is Movant’s appeal from dismissal of his post-conviction motion, not his direct appeal from the judgment in his criminal case. The cases cited by Movant simply do not aid him because of the circumstances. Further, we find no “on-point” authority for the notion that “prejudice,” as contemplated by Strickland and its progeny, can be presumed in a post-conviction motion case when the claim of ineffective assistance centers on a trial lawyer’s alleged mishandling of prosecutorial conflict issues.

Fourth, a defense lawyer renders ineffective assistance of counsel only if his or her conduct “so undermines the proper functioning of the adversary system that the trial cannot be relied on as having rendered a just result.” State v. McKee, 856 S.W.2d 685, 698[18] (Mo.App.1993). Here, the question of whether Movant’s criminal trial “rendered a just result” was decided adversely to him in Hamilton I. Specifically, Hamilton I found no injustice or miscarriage of justice resulted from the prosecutorial conflict of interest. 996 S.W.2d at 763. The issue now raised by Movant’s Rule 29.15 allegations is closely akin to the question considered and rejected in Movant’s direct appeal. On the facts of this case, our finding of no manifest injustice under the “plain error” standard on direct appeal serves to establish a finding of no prejudice under the test for ineffective assistance of counsel provided in Strickland. See State v. Kelley, 953 S.W.2d 73, 91 (Mo.App.1997). See also State v. Nolan, 872 S.W.2d 99, 104 (Mo. banc 1994); McKee, 856 S.W.2d at 692-3. Having failed to show the prejudice prong under the Strickland standard, Movant has not established he received ineffective assistance of counsel. We are not left with the definite and firm impression a mistake was made and do not find the motion court’s findings and conclusions are clearly erroneous. Point denied.

The judgment of the motion court is affirmed.

PARRISH, P.J., concurs.

MONTGOMERY, J., concurs.

      . All rules references are to Supreme Court Rules (2000), unless otherwise stated.

      . Movant's appeal from the judgment of conviction and sentence is reported in State v. Hamilton, 996 S.W.2d 758 (Mo.App. 1999) ("Hamilton I ”).

      .All statutory references are to RSMo 1994.