author: GEORGE W. DRAPER III, Judge.

text:
    Deborah THEERMAN, Appellant, v. FRONTENAC BANK, Respondent.
    No. ED 93313.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 27, 2010.

      Ted F. Frapolli, St. Louis, MO, for Appellant.
    Lawrence E. Parres, Ronald A. Nor-wood, St. Louis, MO, John R. Hamill III, St. Charles, MO, Edward M. Pultz, Farm-ington, MO, for Respondent.
   GEORGE W. DRAPER III, Judge.

Deborah Theerman (hereinafter, “Appellant”) appeals the trial court’s grant of summary judgment in Frontenac Bank’s (hereinafter, “the Bank”) favor finding Appellant was not entitled to the proceeds of four certificates of deposit (hereinafter, “the disputed CDs”) as a matter of law. Appellant raises three points on appeal. We reverse and remand.

It is well-settled that when considering a grant of summary judgment, we review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Co., 854 S.W.2d 371, 376 (Mo. banc 1993). “Our review is essentially de novo. 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. A summary judgment movant has the burden of proof to establish a legal right to judgment flowing from facts about which there is no genuine dispute. Id,, at 378. “The moving party bears the burden of establishing a right to judgment as a matter of law.” Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576, 580 (Mo. banc 2006).

“A ‘defending party’ may establish a right to judgment by showing (1) facts that negate any one of the claimant’s elements ..., (2) that the non-movant, after an adequate period of 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 each of the facts necessary to support the movant’s properly-pleaded affirmative defense.” ITT Commercial Fin. Corp., 854 S.W.2d at 381.

“When the movant makes a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law,” the nonmovant must show by affidavits, depositions, answers to interrogatories, or admissions on file that one or more of the material facts shown by the movant to be without any genuine dispute is, in fact, genuinely disputed. Id. (quoting Rule 74.04(e)). “A ‘genuine issue’ exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts.” Id. at 382.

The record viewed in the light most favorable to Appellant is as follows: Edna Holt (hereinafter, “Holt”) was the grandmother of Appellant. Holt and her husband, Norman Holt (hereinafter, “Norman”), opened approximately thirteen CDs with the Bank between 1999 and his death on March 3, 2005. Included in these thirteen CDs were the disputed CDs: # 2340, #2695, #2703, and #6101. Holt and Norman named Holt’s daughters, Jacqueline Sills Blank (hereinafter, “Blank”) and Janet Y. Layman (hereinafter, “Layman”), as the pay-on-death (hereinafter, “the POD”) beneficiaries of the disputed CDs.

In 2006, Appellant had a conversation with Holt during which Holt promised Appellant that “there were additional monies for [her], if anything would ever happen to [Holt], at Frontenac Bank.” Appellant’s sister, Pamela Stock (hereinafter, “Stock”), was present during this conversation. The parties do not dispute Holt was of sound mind at the end of her life. Blank testified Holt’s mental health was “as sharp as can be” during the last ten years of her life and she was capable of handling her own financial matters. Similarly, Appellant observed Holt handling her own financial affairs and her mail without assistance.

On March 14, 2006, the Bank issued an interest check on CD # 2340 in Holt’s name only. Thereafter, the Bank issued interest checks on CD # 2340 to “Edna Newhouse Holt or Debra Theernan” on June 14, 2006, September 14, 2006, December 14, 2006, and March 14, 2007. The Bank issued an interest check on CD # 2695 to “Edna Newhouse Holt/Debra Theernan” on May 5, 2006, August 6, 2006, November 6, 2006, and February 6, 2007. Furthermore, the Bank issued financial statements to “Edna Newhouse Holt/Debra Theernan” for the disputed CDs from January 1, 2006, through December 31, 2006.

Holt died on March 24, 2007. After Holt’s death, Appellant learned Holt had named her a POD beneficiary for CD # 14741 held at the Bank. On April 6, 2007, Appellant inquired about locating “some other accounts” for her at the Bank. At this time, the Bank denied Appellant had other accounts. At some point, the Bank paid the proceeds of the disputed CDs to Blank and Layman.

On November 20, 2007, Appellant filed a petition for damages against the Bank alleging Holt designated Appellant as joint owner of the disputed CDs. According to Appellant, the Bank wrongfully distributed $91,717.65 in proceeds and accrued interest on the disputed CDs to Blank and Layman, the POD beneficiaries. In response, the Bank filed a third party petition for indemnity against Blank and Layman for money had and received.

On October 23, 2008, the Bank filed its motion for summary judgment alleging two bases in support thereof. First, the Bank claimed it was entitled to judgment as a matter of law under Sections 461.021 and 461.028 RSMo (2000) because it paid the disputed CDs in accordance with the POD beneficiary designations. Second, the Bank alleged it was entitled to judgment as a matter of law under Section 362.471 because it paid the disputed CDs in accordance with the POD beneficiary-designations. In effect, the Bank asserted Sections 461.021, 461.028, and 362.471 as affirmative defenses to Appellant’s claim the Bank should have paid her, as joint owner, the proceeds of the disputed CDs.

In its statement of uncontroverted material facts, the Bank claimed Holt never expressed her intent to have Appellant be a named joint owner of the disputed CDs. Fii’st, Holt allegedly never asked the Bank to amend its paper records adding Appellant as a joint owner. Second, Appellant never completed the required signature card or tax reporting form to make her a joint owner of the disputed CDs. Third, the Bank claims Holt never gave Appellant any documentation indicating she was a joint owner of the disputed CDs. Fourth, the Bank alleges Appellant’s “name was, unbeknownst to [the] Bank, inadvertently inserted into the Bank’s computer records when the Bank switched computer program systems.” Fifth, the Bank claims to rely on its paper records in the event of disputes or inconsistencies between computer records and paper records.

Following the Bank’s filing of its motion for summary judgment and in preparation of its response thereto, Appellant conducted a deposition of Gretchen Funaro (hereinafter, “Funaro”), a client services manager with Fiserv Cir., Inc. Fiserv conducted a computer conversion at the Bank in May 2004. Funaro denied the Bank notified Fiserv of “any issues related to the conversion of CDs.” Funaro testified she was not aware of any computer error that would result in a joint owner being added to a CD or to a CD interest check. Funaro further stated the addition of Appellant’s name to an interest check “could only happen if someone at [the] Bank made some type of change.” According to Funaro, the Bank’s Central Information Systems log (hereinafter, “the CIS log”) lists “names and addresses that can or cannot be attached to accounts.” Funaro indicated a review of the CIS log would be necessary to explain why Appellant’s name was added to interest checks for the disputed CDs. Only the Certificate of Deposit log (hereinafter, “the COD log”) was presented during Furnaro’s deposition. Wendy Stengel (hereinafter, “Stengel”), operations officer for the Bank, testified the COD log is “on the application certificate side,” whereas the CIS log “is on the port side, which house the names, the addresses, anything that could be on the various accounts.”

Following Funaro’s disclosure of the relevancy of the CIS log, the trial court compelled the Bank to produce the Bank’s CIS log on January 6, 2009. The CIS log reflected an entry was initiated on April 14, 2006, by Katrina Elliot (hereinafter, “Elliott”), branch manager and vice president of the Bank’s Earth City location, indicating “400388 Changed for Primary Holder Edna Newhouse Holt” to “Debra Theernan” under “Name 2.” Stengel testified this entry indicated something was changed, but the CIS log does not show what account or CD was changed, or whether only the actual CIS log was changed.

On June 1, 2009, the trial court granted the Bank’s motion for summary judgment and found Appellant was not entitled to the proceeds of the disputed CDs. Appellant appeals.

In her first point on appeal, Appellant asserts the trial court erred in granting summary judgment in favor of the Bank because a genuine issue of material fact exists. Specifically, Appellant alleges the Bank’s claim Appellant’s name was added as a joint owner of the disputed CDs due to a computer error was “denied and controverted” by Funaro, who testified such error could not have occurred. Appellant first notes the computer conversion occurred in May 2004, whereas Appellant’s name initially appeared on interest checks and financial statements for the disputed CDs in 2006. Second, Appellant relies on Funaro’s testimony that “in [her] 28 years of experience [she] had never seen nor heard of’ a computer error causing a name to be added to a CD interest check. Rather, Funaro stated Appellant’s name could only have been added to an interest check “if someone at [the] Bank made some type of change.”

The Bank contends that in order for an addition of a joint owner to be effective, the addition must have been made in accordance with the Bank’s policies. The Bank proffers Appellant’s name must have been added to the face of the CDs or the deposit documents completed by Holt. John Thomas (hereinafter, “Thomas”), the Bank’s compliance officer, testified the Bank’s policy required Holt to authorize any new owner in writing and Appellant was required to sign a signature card. It is undisputed the Bank has no writing to this effect nor did Appellant sign a new signature card for the disputed CDs. Further, the Bank claims Appellant’s name was added to the Bank’s “computer records relating to the CDs due to a computer error.” The Bank also fails to offer a specific theory as to how Appellant’s name appeared on Bank-issued financial statements and interest checks for the disputed CDs.

However, the law guides us as to what constitutes ownership, not the Bank’s unwritten policy. This Court must determine whether a reasonable jury could find Appellant was a joint owner of the disputed CDs. In Maudlin v. Lang, 867 S.W.2d 514 (Mo. banc 1993), the Missouri Supreme Court established a three-part test to decide if a joint tenancy with right of surviv-orship exists. First, a court must determine if an account complies with one of the methods provided in Sections 362.470 and 369.174. Id. at 516. Sections 362.470 and 369.174 “create three routes to a joint tenancy with right of survivorship: 1) describing the named persons as ‘joint tenants’; 2) making the deposit ‘in form to be paid to any one or more of [the named persons]’; or 3) making the deposit ‘in form to be paid to ... the survivor or survivors.” Id. Second, if a deposit does not comply with Sections 362.470 or 369.174, ownership is determined by the language used in the deposit documents. Id. at 517. Third, if “ownership cannot be determined by compliance with the statute or the meaning of the deposit documents, the depositor’s intent controls.” Id. at 519. Here, the trial court erred in granting the Bank’s motion for summary judgment because genuine issues of material fact exist. The affidavits, depositions, and exhibits offered by the Bank and Appellant demonstrate a genuine issue whether Appellant was a joint owner of the disputed CDs.

First, there is a genuine dispute whether Holt requested Appellant be added as a joint owner to the disputed CDs. In her affidavit, Elliott denied Holt expressed a desire to add Appellant as a joint owner to the disputed CDs: “Holt did not add any authorized individuals or co-owners to the CDs between [Norman’s] passing and her own death. Furthermore, during this time Holt never expressed any desire or intention to add any other authorized individuals or co-owners to the CDs.” Elliott also relied on the fact Appellant did not complete a new signature card, which the Bank’s unwritten policy required to become a joint owner of the disputed CDs.

Conversely, Appellant testified about a conversation between herself, Holt, and Stock during which Holt indicated, “there were additional monies for [Appellant], if anything would ever happen to [Holt], at Frontenac Bank.” Appellant produced copies of eight interest checks issued for CDs # 2340 and # 2695 on which the names of both Holt and Appellant are listed. Appellant also produced copies of eight financial statements for CDs # 2340, # 2695, # 2703, and # 6101 on which the names of both Holt and Appellant are listed. Furthermore, Elliott initiated an entry in the CIS log on April 14, 2006, which indicated an unidentified account held primarily by Holt was “Changed to Debra Theernan.” These facts clearly indicate a genuine dispute whether Holt requested Appellant to be added as a joint owner to the disputed CDs.

Second, as Appellant emphasizes in her brief, there is genuine dispute whether Appellant’s name was added as a result of a computer error following the 2004 computer conversion. Thomas testified Appellant’s name was added to the disputed CDs as a result of “a computer error,” but was unable to state when or why the computer error occurred. During her deposition, Elliott recalled informing Christine Caguin (hereinafter, “Caguin”), Holt’s power of attorney, after Holt’s death that Appellant’s name appeared on the computer system records due to “the conversion error.” Elliott testified she received this information after speaking with Fiserv. Elliott further stated in her affidavit that “[t]he Bank relies on the paper records containing the signature of the account owners and authorized individuals in the event of disputes or inconsistencies between the Bank’s computer records and the Bank’s paper records.” Thus, Elliott alleged the Bank’s paper records must control because a computer error caused the Bank’s computer records to be inconsistent.

In contrast, Funaro refuted the Bank’s allegation that a computer error caused the addition of Appellant’s name to the disputed CDs. When questioned if she was aware of any computer error that would cause Appellant’s name to be added, Funa-ro responded, “Absolutely not.” Funaro testified the addition of Appellant’s name to an interest check “could only happen if someone at [the] Bank made some type of change.” She suggested a review of the Bank’s CIS log to explain why Appellant’s name was added to interest checks for the CDs. Finally, contrary to Elliott’s deposition testimony, Funaro denied the Bank ever notified Fiserv of any issues arising from the conversion. These facts illustrate a genuine dispute exists whether Appellant’s name was added as a result of a computer error.

Third, there is a genuine dispute whether written evidence exists demonstrating Appellant was a joint owner of the disputed CDs. The Bank alleges in its brief that “Funaro at FISERV testified unequivocally that a name listed on the FISERV CID computer logs does not reflect ownership and did not identify Deborah Theerman as an owner.” The Bank’s statement raises several issues. First, Funaro clearly testified the logs at issue were maintained by the Bank, not by FISERV. Second, a “CID computer log” was not at issue. Third, this Court’s review of the legal file reflects Funaro testified in reference to the CIS log that “a name line may or may not be an owner.” This testimony contradicts the Bank’s characterization of Funa-ro’s testimony as “unequivocal” that “a named listed ... does not reflect ownership.” Fourth, Funaro did not have the actual CIS logs available for examination while testifying at her December 16, 2008, deposition. Therefore, Funaro’s statement that “I do not see a change where Deborah Theerman was added as an owner of the four CDs” was in reference to the COD logs presented during her deposition, not the CIS log.

Moreover, Appellant produced testimony and exhibits supporting the existence of written evidence she was a joint owner of the disputed CDs. Funaro testified during her deposition that “names that appear* on checks are coded on the system as an owner.” Correspondingly, Appellant offered copies of eight interest checks for two of the disputed CDs on which Appellant’s name appears. Thus, the interest checks could be construed as written instruments evidencing ownership by the trier of fact. Appellant also included in her exhibits financial statements from 2006 that the Bank issued to Holt and Appellant for the disputed CDs. These facts demonstrate a genuine dispute as to whether there is written evidence that proves Appellant was joint owner of the disputed CDs.

Further, contrary to the Bank’s assertion, it is not necessary for this Court to determine whether Appellant has proven she was a joint owner of the disputed CDs by clear and convincing evidence. It is sufficient for this Court to find that a genuine issue of material fact exists because there is a genuine dispute whether Appellant was a joint owner of the disputed CDs. Genuine issues of material fact must be determined by a trier of fact. Monsanto Co. v. Garst Seed Co., 241 5.W.3d 401, 416 (Mo.App. E.D.2007). Point one is granted.

Given our decision on Appellant’s first point on appeal, it is not necessary for this Court to consider Appellant’s second or third points on appeal. However, in the interests of judicial economy, we will address Appellant’s remaining points as they may be an issue on remand. Shaner v. Sys. Integrators, Inc., 63 S.W.3d 674, 679 (Mo.App. E.D.2001); see also Monnig v. Monnig, 53 S.W.3d 241, 248 (Mo.App. W.D.2001)(“Because the issues raised in Husband’s third point may arise again on remand, in the interest of judicial economy, we will briefly address them at this time.”).

In her second point on appeal, Appellant asserts the trial court erroneously entered summary judgment in the Bank’s favor because it incorrectly interpreted Sections 461.021 and 461.028 as requiring the Bank to pay the proceeds of the disputed CDs to the POD beneficiaries. Specifically, Appellant alleges Sections 461.021 and 461.028 do not address the relationship between a joint owner and POD beneficiaries nor do they require a written document for a CD holder to add a joint owner. The Bank effectively alleges these sections act as affirmative defenses to Appellant’s claim that a genuine issue of material fact exists as to whether she was a joint owner of the disputed CDs.

Statutory construction is a matter of law. Ragan v. Fulton State Hosp. and Div. of Employment Sec., 188 S.W.3d 473, 475 (Mo.App. E.D.2006). When engaging in statutory construction, the primary purpose is to ascertain the intent of the legislature from the language used to give effect to the intent if possible. Crack Team USA, Inc. v. Am. Arbitration Ass’n, 128 S.W.3d 580, 581 (Mo.App. E.D.2004). Words are to be given their plain and ordinary meaning wherever possible. Id. “Where the statutory language is clear and unambiguous, this Court will give effect to the language as written and not engage in statutory construction.” City of Bridgeton v. Titlemax of Missouri, Inc., 292 S.W.3d 530, 536 (Mo.App. E.D.2009).

Chapter 461 governs nonprobate transfers of property. Section 461.005(7) defines a nonprobate transfer as “a transfer of property taking effect upon the death of the owner, pursuant to a beneficiary designation.” However, it specifically excludes the application of Sections 461.003 to 461.081 “survivorship rights in property held as joint tenants.” If the trier of fact finds Appellant to be a joint owner of the disputed CDs, then Section 461.021 and 461.028 are inapplicable and cannot serve as affirmative defenses for the Bank.

Moreover, the Bank engages in a strained reading of Section 461.028. Specifically, the Bank claims “Section 461.028 provides that the pay-on-death beneficiary designations on the CDs are ‘conclusive evidence’ of the omiership of those CDs.” Section 461.028.5 provides, in relevant part:

An account record, security certificate, or instrument evidencing ownership of property that contains a transfer on death direction written as part of the name in which the property is held or registered, is conclusive evidence ... that the direction was regularly made by the owner and accepted by the transferring entity, and was not revoked or changed prior to the death giving rise to the transfer.

Under Section 461.028.5, an account record evidencing ownership of property that includes a written transfer on death direction as part of the name in which the property is held or registered is conclusive evidence that the transfer on death direction “was regularly made ... and was not revoked or changed prior to the death giving rise to the transfer.” Section 461.028.5 provides conclusive evidence of the pay-on-death beneficiary designation, not conclusive evidence of ownership of the disputed CDs. While the disputed CDs may be in full compliance with Sections 461.021 and 461.028, that compliance with regard to designation of pay-on-death beneficiaries is irrelevant under Chapter 461 if Appellant is found by the trier of fact to be a joint owner of the disputed CDs.

In her third point on appeal, Appellant claims the trial court erroneously granted the Bank’s summary judgment motion because it wrongly interpreted Section 362.471.6 as mandating the Bank pay the proceeds of the disputed CDs to the POD beneficiaries. Specifically, Appellant alleges Section 362.471 does not address the relationship between a joint owner and POD beneficiaries nor do they require a written document for a CD holder to add a joint owner. In response, the Bank claims it is entitled under Section 862.471.6 to “full credit” for its payments to the POD beneficiaries because it was not served with process by a court restricting those payments.

Section 362.471 addresses POD accounts maintained by banks and trust companies. The Bank relies on Section 362.471.6 as an affirmative defense. Section 362.471.6 provides:

Any payment made by a bank or trust company on an account as described in this section shall be entitled to full credit upon such payment without necessity of determining whether any other person shall have an interest in the account, unless the bank or trust company shall have been served with process by a court of competent jurisdiction restricting payment on the account in accordance with the terms of such process.

While it is undisputed by the parties that the Bank did not receive service of process by a court restricting payment on the disputed CDs, the deposition testimony of Elliott indicates the Bank had actual notice of a dispute regarding the disputed CDs. Specifically, Elliott testified Caguin inquired after Holt’s death why Appellant’s name was on the computer system records.

Nevertheless, according to Section 362.471.3, a POD account becomes the property of the person(s) named as the POD person(s) “at the death of all the first named persons.” Thus, if there is more than one first named person on the POD account, they are considered joint tenants with right of survivorship, and “the account shall be paid in equal shares to pay-on-death persons living at the time all first named persons have died.” Section 362.471.3. Accordingly, the Bank would not be entitled to judgment as a matter of law pursuant to Section 362.471.6 for paying the POD beneficiaries the proceeds of the disputed CDs until “all first named persons [on the disputed CDs] have died.”

The trial court’s grant of the Bank’s summary judgment motion is reversed and remanded for further proceedings consistent with this opinion.

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

      .The interest checks and financial statements discussed were issued to "Edna Newhouse Holt” and "Debra Theernan.” While Appellant’s name is spelled "Theerman,” the Bank did not challenge the misspelling of Appellant's name in its motion for summary judgment or its Respondent’s brief on appeal. The Bank merely noted in its statement of uncontroverted material facts in support of its motion for summary judgment that Appellant's name was spelled "Theernan” on the CIS log, financial statements, and interest checks issued by the Bank.

      . In its original motion for summary judgment, Respondent alleged a third basis in support of its motion. Namely, Respondent alleged it was entitled to judgment as a matter of law under the express terms of the written instruments because it paid the disputed CDs in accordance with POD beneficiary designations and no evidence exists establishing Respondent consented in writing to any transfer of ownership in the disputed CDs. Respondent withdrew this argument on December 3, 2008, by motion.

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

      . The Bank's brief fails to address Appellant's first point on appeal. While there is no requirement that a respondent file a brief, its failure to address this point leaves us without the benefit of its argument, if any, to support the trial court’s finding of no genuine issue of material fact. See Parrish v. Dir. of Revenue, 11 S.W.3d 652, 654 (Mo.App. E.D.1999)(‘'While there is no requirement that a respondent file a brief, Driver's failure leaves us without the benefit of her argument, if any, to support the trial court's decision.”).

      . The Bank's counsel was clearly aware of the existence of two separate logs, a COD log and a CIS log, during the deposition of Stengel when counsel objected, "We're not here to talk about COD logs. The court order is abundantly clear, that we're here to talk about CIS logs.” The Bank fails to acknowledge this distinction throughout its brief. The Bank's unwillingness to make this distinction is significant. While referring to a COD log produced at her deposition, Funaro testified, "[tjhere is nothing on this report that would indicate that [Appellant] is specifically a joint owner" of any CD owned by Holt. Conversely, Appellant’s name does appear on the CIS log under an April 14, 2006, entry initiated by Elliott as "Name 2."

        . In fact, on December 22, 2008, Appellant was forced to file a motion to compel the Bank to produce the CIS log, after the Bank failed to produce it. The trial court ordered the Bank to produce the CIS log on January 6, 2009.


source: Caselaw Access Project

author: PATRICIA L. COHEN, Judge.

license: Public Domain

text:
    John GUIDRY, Simul-Vision Cable Systems, Ltd. and Guidry Cable Vision Management Company, Appellants, v. CHARTER COMMUNICATIONS, INC., Charter Communications Ent. 1, LLC, Bauman Property Co., and U.B.S. Realty Investors, LLC, Defendants, and Seven Trails West, LLC, d/b/a 500 Seven Trails Drive Investors, L.L.C., Respondent/Cross-Appellant.
    No. ED 93211.
    Missouri Court of Appeals, Eastern District, Division Two
    April 27, 2010.

      Anthony G. Simon, St. Louis, MO, for appellants.
    Michael A. Clithero, St. Louis, MO, for respondent/cross appellant.
   PATRICIA L. COHEN, Judge.

Introduction

John Guidry, Simul-Yision Cable Systems, Ltd., and Guidry Cable Vision Management Co. (collectively, “Simul-Vision”) appeals the trial court’s judgment granting in part Seven Trails West LLC’s motion for summary judgment and awarding Sim-ul-Vision damages following this court’s remand for a new trial on the issue of damages. Seven Trails cross-appeals the trial courts award of damages to Simul-Vision, arguing that the trial court applied the wrong measure of damages.

Factual and Procedural Background

Simul-Vision and Seven Trails entered a month-to-month contract for Simul-Vision to provide cable services to the tenants of Seven Trails West Apartment Complex. The contract was terminable with a thirty-day notice and contained an exclusivity provision that prohibited Seven Trails from allowing third parties to install or operate a cable or satellite system at the apartment complex. On August 27, 2001, Seven Trails terminated the month-to-month contract with Simul-Vision effective September 30, 2001.

On March 31, 2003, Simul-Vision sued Seven Trails for breach of contract. After a jury trial in May 2006, the jury found in favor of Simul-Vision and awarded it $706,000 in damages. Seven Trails appealed, and this court affirmed the trial court’s judgment as to liability but reversed and remanded for a new trial on damages. Guidry v. Charter Communications, Inc., 269 S.W.3d 520, 536 (Mo.App. E.D.2008) (“Guidry I”).

On appeal, Seven Trails argued, inter alia, that the trial court erred in denying Seven Trails’ motion for directed verdict because Simul-Vision did not suffer identifiable damages and, therefore, could not make a submissible case for breach of contract. Id. at 532. Specifically, Seven Trails claimed that Simul-Vision “did not lose any profits and did not suffer damages because they continued to provide cable services and receive subscription fees past the termination of the month-to-month agreement.” Id. We held that damages may be measured by loss of profits or by loss of the benefit of the bargain. Id. Because Simul-Vision had presented substantial evidence of damages as measured by the loss of the benefit of the bargain, we affirmed that Seven Trails was liable for breach of contract. Id.

While we affirmed the determination that Simul-Vision suffered damage as a result of Seven Trails’ breach of contract, we found that the trial court’s award of $706,000 in damages was “speculative because it [was] not supported by the adduced evidence.” Id. at 533. The jury apparently based its award on a per-subscriber value of $2,000. Upon review, this court found no evidence that, absent Seven Trails’ breach, Simul-Vision would have been able to find a potential buyer or that a potential buyer would have paid a certain per-subscriber amount. Id. at 534. We further found that the evidence adduced at trial did “not support the jury’s award of $2,000 per-subscriber value.” Id. Accordingly, this court held that the damages award was excessive “under the facts of this case” and “reversed and remanded for a new trial on damages.” Id.

On February 3, 2009, Seven Trails filed a motion for summary judgment asking the trial court to enter judgment in its favor on the grounds that “under the undisputed facts, [Simul-Vision] incurred zero damages regardless of the measure of damages applied.” On March 18, 2009, the trial court entered a scheduling order for additional discovery on the issue of damages, set the case for a two-day trial to begin on September 8, 2009, and ordered Seven Trails to file its reply to Simul-Vision’s memorandum in opposition to Seven Trails’ motion for summary judgment.

On April 29, 2009, the trial court entered a judgment granting in part and denying in part Seven Trails’ motion for summary judgment. In the judgment, the trial court rejected Seven Trails’ claim that the amount of damages suffered by Simul-Vision was zero, but agreed that “the only claim for damages and evidence offered thereto by [Simul-Vision] is the same as that presented in the first trial.” The trial court then sua sponte calculated Simul-Vision’s damages and awarded it $24,363.56.

Simul-Vision appeals the trial court’s order granting in part Seven Trails’ motion for summary judgment. In response, Seven Trails claims that the trial court properly “rejected [Simul-Vision’s] efforts to re-introduce the same damages evidence as in the earlier trial,” but cross-appeals the damages award of $24,363.56 on the grounds that the trial court applied the wrong measure of damages. We reverse and remand.

Discussion

Simul-Vision claims that the trial court erred in granting in part Seven Trails’ motion for summary judgment because: (1) the trial court exceeded its jurisdiction by acting outside the scope of the court’s directions on remand; (2) the law of the case precluded re-litigating the issue raised in the motion for summary judgment; (3) the trial court neglected new evidence proffered by Simul-Vision and did not properly consider all evidence material to the issue of damages; and (4) a genuine issue of material fact existed. In response, Seven Trails argues that the trial court properly rejected Simul-Vision’s efforts to re-introduce the same damages evidence, but cross-appeals the amount of damages the trial court awarded Simul-Vision. We find that Simul-Vision’s first point on appeal is dispositive.

On remand, the scope of the trial court’s authority is defined by the appellate court’s mandate. Pope v. Ray, 298 S.W.3d 53, 57 (Mo.App. W.D.2009). “The mandate serves the purpose of communicating the judgment to the lower court, and the opinion, which is a part thereof, serves an interpretative function.” Id. (quoting Durwood v. Dubinsky, 361 S.W.2d 779, 783 (Mo.1962)). Following remand, the trial court is required to render judgment in conformity with the appellate court’s mandate and accompanying opinion. Id. We review de novo whether the trial court followed the mandate. See Id. at 56.

There are two types of remands: (1) a general remand, which does not provide specific direction and leaves all issues open to consideration in the new trial; and (2) a remand with directions, which requires the trial court to enter a judgment in conformity with the mandate. Outcom, Inc. v. City of Lake St. Louis, 996 S.W.2d 571, 574 (Mo.App. E.D.1999). “Where the mandate contains express instructions that direct the trial court to take a specified action, the trial court has no authority to deviate from those instructions.” Edmison v. Clarke, 61 S.W.3d 302, 310 (Mo.App. W.D.2001). A remand directing “the trial court to take a specific action, i.e., conduct a new trial on the issue of damages” is a remand with specific instructions. Pope, 298 S.W.3d at 58. “Any proceedings in the trial court contrary to the mandate are null and void.” Edmison, 61 S.W.3d at 310 (quotation omitted).

Our mandate in Guidry I constituted a remand with directions because it directed the court to take specific action, namely, to conduct a new trial on the issue of damages. See Pope, 298 S.W.3d at 58. The mandate provided:

The Court, being sufficiently advised of and having considered the premises, adjudges that the judgment rendered by the St. Louis City Circuit Court in cause No. 032-00987 be reversed in part as to the award of damages to [Simul-Vision] and remanded in part for a new trial on damages only and affirmed in all other respects in accordance with this Court’s opinion delivered October 7, 2008.

In the accompanying opinion, we explained that the jury award of $706,000, which represented what a potential buyer would have paid to acquire Simul-Vision’s cable system at the apartment complex and was apparently based on a per-subscriber value of $2,000, was “speculative because it [was] not supported by the adduced evidence.” Guidry I, 269 S.W.3d at 533. Simul-Vision presented no evidence that it would have been able to find a potential buyer willing to pay a certain per-subscriber price for its cable system and, therefore, any suggestion that this was possible was “mere speculation.” Id. at 534.

We further found that, even if Simul-Vision could have found a potential buyer, the evidence did not support basing the award on a per-subscriber value of $2,000. Id. The record showed that Simul-Vision built and sold four other cable systems in St. Louis: (1) Lake St. Louis — $2,000 per-subscriber; (2) Wentzville — $1,975 per-subscriber; (3) Country Club Hills — $197 per-subscriber; and (4) Tempo Apartments — $10,000 for wiring. Based on the evidence presented at trial, we found that Seven Trails’ cable system and service contract more closely resembled the Country Club Hills system, valued at $197 per-subscriber, than the higher-priced Lake St. Louis and Wentzville systems which, at the time of the sale, were both operating on contracts with 13 years remaining before expiration. Id. We therefore concluded that the jury award “under the facts of this case, [was] excessive,” and we reversed and “remanded to the trial court for a new trial on damages only.” Id. at 534, 536. “[W]here an appellate court remands with specific directions, the trial court is duty-bound to render a judgment that strictly conforms to that mandate. The court is without power to modify, alter, amend, or otherwise depart from those directions.” Pope, 298 S.W.3d at 58 (emphasis in the original) (citations omitted).

In Pope, the Western District held that the trial court exceeded the scope of this court’s mandate to conduct a new trial on damages when it assessed damages without holding a new trial. 298 S.W.3d at 58. In that case, a jury found the defendant psychologist vicariously liable for the negligence of his partner, Dr. Strnad, who had failed to protect the plaintiff from sexual abuse. Pope, 298 S.W.3d at 56. On appeal, the Western District affirmed the judgment in all respects except as to damages and “remanded to the trial court with directions to conduct a new trial on the limited issue of damages.” Id. In a separate proceeding, an arbitration panel heard the plaintiffs case against Dr. Strnad and awarded the plaintiff $8 million in damages. Following remand, the plaintiff filed a motion in the trial court asking the trial court to enter judgment against the defendant in the amount of the prior arbitration award against Dr. Strnad. Id. The trial court granted the plaintiffs motion over the defendant’s objection and, rather than conduct a new trial on damages, adopted the amount of Dr. Strnad’s liability pursuant to arbitration. Id. The defendant again appealed, and the Court of Appeals held that the trial court acted outside its mandate and, in so doing, violated the defendant’s right to a new trial on damages. Id. at 58.

Seven Trails argues that Pope is distinguishable because, in that case, the trial court “went off in an unforeseen direction after remand for a new trial on damages.” Seven Trails stresses that, in Pope, the plaintiff did not move the trial court to use the arbitration award to measure damages until after remand and the Western District’s opinion “did not in any way contemplate ... applying the arbitration award” to the defendant. Pope, 298 S.W.3d at 58. Seven Trails’ attempt to distinguish Pope is unpersuasive. The test for determining whether the trial court exceeded the scope of our mandate on remand is whether the trial court “strictly conform[ed] to that mandate,” not whether the measure of damages the trial court used on remand was previously before this court. See Pope, 298 S.W.3d at 57.

Like the trial court in Pope, the trial court in the instant case failed to comply with the court’s mandate because it did not conduct a new trial on damages. See Pope, 298 S.W.3d at 58. The assessment of damages is primarily a function for the jury or the finder of fact. Teets v. Am. Family Mut. Ins. Co., 272 S.W.3d 455, 468 (Mo.App. E.D.2008). Instead of holding a new trial, the trial court engaged in fact-finding when it proceeded to determine Simul-Vision’s damages amounted to $24,363.56.

Seven Trails also contends that in granting summary judgment, and thereby precluding Simul-Vision from introducing evidence that its cable system was worth between $4,000 and $5,000 per-subscriber, the trial court “adhered to, rather than strayed from, this court’s mandate.” Specifically, Seven Trails claims that, because the Guidry I court invalidated a verdict based on a $2,000-per-subscriber value, the law' of the case doctrine prohibits the trial court from readmitting at retrial evidence of even greater damages. However, Seven Trails’ argument ignores the threshold question of whether the trial court complied with this court’s mandate to conduct a new trial on the issue of damages. Based on the above discussion, we find that it did not.

Conclusion

The judgment is reversed and, consistent with our mandate in Guidry I, the case is remanded to the trial court for a new trial on the issue of damages only.

SHERRI B. SULLIVAN, P.J., and ROBERT G. DOWD, JR., J., concur.

      . Both parties filed motions for reconsideration, which the trial court denied without explanation.

      . Consistent with J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 254 (Mo. banc 2009), we note that a more accurate description of the issue presented is whether the trial court exceeded its "authority” or "power” when it acted outside the scope of the court's directions on remand. See also Morrison v. Caspersen, 339 S.W.2d 790, 792 (Mo.1960).

      . Seven Trails claims that Davis v. J.C. Nichols Co. supports this proposition. 761 S.W.2d 735 (Mo.App. W.D.1988). In Davis, the trial court entered a directed verdict for the defendants on plaintiffs' claims of private nuisance. Id. at 738. On appeal, the Western District held that the trial court erred in excluding the plaintiffs' offer of certain municipal ordinances as proof of nuisance and remanded for a new trial because of that error. Id. On remand, the trial court excluded the ordinances from evidence and granted summary judgment for the defendants. Id. The plaintiffs appealed the trial court’s award of summary judgment, and the Davis court held that summary judgment was erroneous because the trial court's exclusion of the ordinance violated the law of the case doctrine. Id. at 741. Davis is consistent with the instant holding because it held: "Where a remand is with directions, a trial court is bound to render judgment in conformity with the mandate.” Id. at 737. Nothing in Davis supports the proposition that a trial court ordered to conduct a new trial to determine damages may instead grant summaiy judgment, particularly where, as here, the amount of damages is in dispute.

      . In light of our holding that the trial court exceeded its authority when it granted summary judgment under the circumstances presented here, we need not reach Seven Trails' cross-appeal challenging the amount the trial court awarded in damages. It is, however, worth noting that the fact that Seven Trails (as well as Guidry) challenges the amount of damages awarded underscores our conclusion that in granting summary judgment and calculating damages, the trial court imper-missibly engaged in fact-finding in contravention of our direction to hold a trial on this issue.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Edward WIDEMAN, Appellant.
    No. ED 92971.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 27, 2010.
    Matthew M. Ward, Columbia, MO, for appellant.
    Shaun J. MacKelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Edward Wideman (Defendant) appeals the judgment of conviction entered after a jury found him guilty of two counts of statutory rape in the second degree and two counts of statutory sodomy in the second degree. Defendant claims the trial court plainly erred in overruling his request to exclude the victim from the courtroom and permitting her to remain in the courtroom before she testified and throughout the proceedings. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find no plain error. An extended opinion would have no precedential value. We have, however, prepared a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

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


author: NANNETTE A. BAKER, Judge.

text:
    Garold SAVAGE, Respondent, v. TREASURER OF MISSOURI As Custodian of SECOND INJURY FUND, Appellant.
    No. ED 93869.
    Missouri Court of Appeals, Eastern District, Division One.
    April 27, 2010.

      Kristin Frazier, Attorney Generals Office, St. Louis, MO, for appellant.
    Michael Gerritzen, St. Louis, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Introduction

The Treasurer of the State of Missouri, Custodian of the Second Injury Fund (“the Fund”) appeals from a judgment of the Labor and Industrial Relations Commission (“the Commission”) affirming the decision of the Administrative Law Judge (“ALJ”) awarding Garold Savage (“Claimant”) permanent and total disability. The Fund raises one point on appeal. The Fund claims that the Commission erred in applying an incorrect standard of causation and awarding benefits to an employee who failed to prove a compensable work injury. We affirm.

Factual and Procedural Background

Claimant is a 55 year old male who attended school through the tenth grade. He earned his GED while serving in the Army from 1972 until 1974. After being discharged from the military and a period of unemployment, Claimant attended truck driving school. From 1976 to 1992, Claimant worked for a truck driving company and, later, the County Highway Department. Claimant began driving a concrete mixer for Breckenridge Materials (“Employer”) in 1992, where he worked until his May 3, 2007 work injury.

On May 3, 2007, Claimant was washing his truck at the end of the work day when he walked around the truck, slipped and fell. His left knee hit the concrete, and he required help to stand back up. Based on his pain, Claimant told Employer he needed to go home. By the next morning, the pain had increased, and his left leg was swollen. Employer sent Claimant to Con-centra Medical Center where he was prescribed a knee brace and physical therapy and told to modify his activity. An MRI on May 21, 2007 found a tear in his medial meniscus and osteoarthritis. Dr. Calvert and Dr. Van Ryn, both orthopedic surgeons, examined and treated Claimant. Claimant never returned to work.

Before to his May 3, 2007 injury, Claimant suffered from a number of injuries and health problems. Claimant injured his left knee on three previous occasions in 1992, 1993 and 1998 and had arthroscopic surgery for the first two injuries. Claimant has also had two arthroscopic surgeries on his right knee for injuries in 1995 and 2003. In addition, he has suffered injuries to his right hand, right wrist, left ankle, neck, shoulder and the loss of his big right toe. Claimant has been diagnosed with hypertension, congestive heart failure, chronic obstructive pulmonary disease and diabetes. In 2008, Claimant had surgery for multilevel cervical degenerative disc disease.

Claimant filed a claim with the Division of Worker’s Compensation for permanent total disability benefits against the Second Injury Fund on June 25, 2007. The ALJ conducted a hearing on March 31, 2009, where Claimant testified and offered the depositions and reports of Dr. Robert Poetz, an osteopathic physician and surgeon, and James England, a vocational rehabilitation specialist.

Claimant testified that his physical limitations have worsened since the May 3, 2007 injury. He cannot climb in or out of his truck, hold down the clutch, or do any repetitive lifting. He is stiff and sore in both knees and cannot sit for more than fifteen minutes or walk for more than one block. Claimant also testified that he has gained a significant amount of weight since the May 3, 2007 injury. Due to his injuries and constant pain, Claimant does not believe he can go back to work.

Dr. Poetz examined Claimant and his medical records. He opined that as a result of the May 3, 2007 fall, Claimant suffered a complex tear of the medial meniscus in his left knee with exacerbation of preexisting degenerative joint disease of Claimant’s left knee. Dr. Poetz testified that Claimant is permanently and totally disabled due to the combination of the May 3, 2007 injury and Claimant’s preexisting injuries and conditions. He testified that Claimant cannot compete in the open labor market.

Mr. England met with Claimant and reviewed his medical records. He testified that Claimant is totally disabled from a vocational standpoint. Mr. England testified that he does not believe Claimant can return to any of his previous jobs nor does Claimant have any transferable skills. Mr. England opined that due to Claimant’s skill set, size and physical limitations, employers would not likely hire him.

The Fund offered the deposition testimony and report of Dr. Bernard Randolph, a physiatrist. Dr. Randolph reviewed Claimant’s medical records but did not examine Claimant. He testified that Claimant should be able to work in a light to sedentary work demand category. Dr. Randolph opined that the prevailing factor for Claimant’s disability is the underlying osteoarthritis, not the May 3, 2007 injury. He testified that if Claimant were able to properly manage some of his medical conditions combined with a knee replacement, Claimant would be able to maintain employment. However, Dr. Randolph testified that obesity is a risk factor for early failure of a knee replacement.

After the hearing, the ALJ found that Claimant sustained an additional 15% permanent partial disability to his left knee as a result of the May 3, 2007 injury and is permanently and totally disabled as a result of the combination of his disabilities. The Commission affirmed the award and incorporated her decision. This appeal follows.

Standard of Review

Section 287.495.1 sets forth our standard of review. We may only modify, reverse, remand or set aside the Commission’s award upon the following grounds:

(1) That the Commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the Commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

In Hampton v. Big Boy Steel Erection, the Missouri Supreme Court determined that we no longer view the evidence in the light most favorable to the Commission’s award. 121 S.W.3d 220, 223 (Mo. banc 2003). Rather, we consider the evidence in the context of the whole record to determine whether the record contains sufficient competent and substantial evidence to support the award, or whether the award is contrary to the overwhelming weight of the evidence. Id, at 222-23. We must affirm the Commission’s decision unless it was contrary to the overwhelming weight of the evidence. Id. at 223. This Court may review the Commission’s award for questions of law. Section 287.495.1; Hampton, 121 S.W.3d at 222-23.

Discussion

The Fund’s argument under this point relied on actually contains four separate claimed errors. These include: the Commission’s failure to properly track the language of Section 287.020.3(1) in its ruling; the Commission’s finding of “additional disability” as sufficient to support causation under Section 287.020.3(1); the Commission’s dismissal of Claimant’s prior injuries as irrelevant; and the Commission’s improper use of the words “injury” and “accident.” Of these claims, the point relied on claims only that the Commission erred and acted in excess of its power by awarding permanent total disability benefits to Claimant because the Commission employed an incorrect standard of causation and thereby awarded benefits to an employee who failed to prove a compensa-ble work injury. We can address only the error specifically raised in the Fund’s point relied on. Villines v. Mier, 58 S.W.3d 921, 924 (Mo.App. S.D.2001). The Fund’s point is wholly without merit.

Section 287.020.3(1) provides, in part, as follows, “An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. ‘The prevailing factor’ is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.” Mo.Rev.Stat. Section 287.020.3(1) Supp.2006. We will uphold the Commission’s determination as long as it is supported by competent and substantial evidence and is not against the overwhelming weight of the evidence. Hampton, 121 S.W.3d at 222-23. In so doing, the Commission has the duty to make credibility determinations and resolve conflicting medical testimony. Johnson v. Ind. W. Express, Inc., 281 S.W.3d 885, 892 (Mo.App. S.D.2009). “A claimant’s credible testimony as to work-related functioning can constitute competent and substantial evidence.” Hampton, 121 S.W.3d at 223-224.

In its Rulings of Law, the Commission stated, “Based on Claimant’s testimony and the opinions of the medical experts, Claimant has established his 2007 work injury was the prevailing factor in causing additional disability and the need for additional treatment to his left knee.” The Fund’s entire argument rests on the fact that the phrase “medical condition” was not included in that particular sentence. The Fund argues that by omitting the phrase “medical condition,” in its Rulings of Law, the Commission failed to find that the accident was the prevailing factor in causing the medical condition. The Fund, however, cites no authority, nor do we find any, where the failure to specifically track the statutory language of Section 287.020.3 in the Commission’s ruling is error. The Fund argues that worker’s compensation law is a creature of statute and courts must follow the rules of statutory construction, but does not explain why failure to specifically track the language of the statute is error. “When an argument includes conclusory propositions without referencing specific testimony or evidence and omits legal authority, no such connection between the law and facts can be made.” Donovan v. Temporary Help, 54 S.W.3d 718, 720 (Mo.App. E.D.2001). Because the Fund did not provide adequate legal reasoning to support its proposition and did not explain why it failed to do so, we can deny this point for this reason alone.

However, we have ex gratia reviewed this claim and have found it to be without merit. While the Commission did not specifically use the words “medical condition,” the phrase is implied in fact. It is clear that the Commission found Claimant’s additional disability to his knee to be a medical condition. The Commission noted that Claimant had a disability in his knee before the accident, but this condition changed after the May 3, 2007 work injury.

In addition, there was substantial and competent evidence to support the Commission’s determination that the May 31, 2007 injury was the prevailing factor in causing both Claimant’s medical condition and disability. The Commission found the testimony of Dr. Poetz to be more credible than that of Dr. Randolph. Dr. Poetz, unlike Dr. Randolph, examined all of Claimant’s prior medical records, was aware of Claimant’s prior medical conditions and injuries, and conducted a physical exam of Claimant. In addition, the Commission found Claimant’s testimony credible. Claimant testified that he cannot sit for extended periods, lift more than a grocery bag, climb in and out of a truck or hold down a clutch. Point denied.

Conclusion

The decision of the Commission is affirmed.

KATHIANNE KNAUP CRANE, P.J., and CLIFFORD H. AHRENS, J., concur.

      . This Court has reviewed the Motion taken with the case. Respondent’s Motion to Dismiss Appellant’s Appeal is denied.

      . Claimant settled his claim against Employer, and it is not part of this appeal.

      . In his deposition, Dr. Randolph referred to himself as a "specialist in physical medicine and rehabilitation, also known as physiatry.” He describes the filed of physiatry as "evaluating and treating people who have neurological and musculosketetal injury and disease” focusing on "nonoperative or conservative management.”

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

      .This Court reviews the findings of the Commission and not those of the ALJ. Richard v. Mo. Dep't of Corrections, 162 S.W.3d 35, 37 (Mo.App. W.D.2005). However, when the Commission affirms or adopts the findings of the ALJ, this Court reviews the findings of the ALJ as adopted by the Commission. Id.


author: MARY K. HOFF, Judge.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Donald Robert HAWKINS, Defendant/Appellant.
    No. ED 92691.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 27, 2010.
    Gwenda Renee Robinson, Missouri Public Defender Office, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, James B. Farnsworth, Assistant Attorney General, Jefferson City, MO, for Respondent.
   Opinion

MARY K. HOFF, Judge.

Donald Hawkins (Defendant) appeals from the judgment upon his conviction by a jury for three counts of first-degree statutory rape, in violation of Section 566.082, RSMo 1994; one count of attempted first-degree statutory sodomy, in violation of Sections 566.062 and 564.011; three counts of second-degree statutory rape, in violation of Section 566.034; three counts of second-degree statutory sodomy, in violation of Section 566.064; one count of attempted second-degree statutory sodomy, in violation of Sections 566.064 and 564.011; one count of second-degree child molestation, in violation of Section 566.068; and two counts of incest, in violation of Section 568.020. Defendant was sentenced to a total of twenty-six years imprisonment.

Defendant raises four points on appeal. We summarily deny three of these points and find that an opinion reciting the detailed facts and restating the principles of law would have no precedential value. Rule 30.25(b). The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

Defendant’s fourth point regarding sentencing on the attempted second-degree statutory sodomy count, we decide in this separate, published opinion. Defendant admits this claim is not preserved for appeal and requests plain-error review. Rule 30.20. To obtain relief under the plain error rule, a defendant must show not only that the trial court erred, but also that the error so substantially impacted his rights that manifest injustice or miscarriage of justice will inexorably result if the error is left uncorrected. State v. Peeples, 288 S.W.3d 767, 776 (Mo.App. E.D.2009). In contexts similar to the one here, this court has granted plain error relief finding manifest injustice has occurred when the trial court imposed a sentence which exceeded the maximum punishment permitted by law. Id.; State v. Bynum, 299 S.W.3d 52, 58 (Mo.App. E.D.2009).

Defendant argues that the trial court plainly erred in sentencing him to a seven-year term of imprisonment for his conviction on Count XI, attempted second-degree statutory sodomy. He points out that attempted second-degree statutory sodomy is a class D felony, for which the maximum sentence was five years. The State concedes this point.

Count XI charged Defendant with attempted second-degree statutory sodomy. The completed offense of second-degree statutory sodomy is a class C felony, which is punishable by a term of imprisonment “not to exceed seven years.” Sections 558.011.1(3) and 566.064. But because the offense was charged as an attempt, the classification of the offense is reduced to a class D felony. Section 564.011.3(3). The maximum sentence for a class D felony, was five years. Section 558.011.1(4). Thus, Defendant’s seven-year sentence exceeded the maximum authorized by law.

We reverse the trial court’s judgment with respect to Defendant’s sentence for second-degree statutory sodomy. We remand the cause with instructions for the trial court to correct the sentencing error on Count XI in accordance with our holding. We affirm the judgment in all other respects.

GLENN A. NORTON, Presiding Judge and LAWRENCE E. MOONEY, Judge, concur.

      . Unless otherwise indicated, all further statutory references are to RSMo 1994.

      . Prior to June 27, 2003, a class D felony was punishable by a maximum term of imprisonment of five years, but currently, a class D felony is punishable by a maximum term of imprisonment of four years. Section 558.011.1(4), RSMo 1994; Section 558.011.1(4), RSMo 2000; Section 558.011.1(4), RSMo Cum.Supp.2003. Defendant must be sentenced in accordance with the law pre-dating June 27, 2003, the law in effect at the time the offense was committed. State v. Guyton, 158 S.W.3d 252, 256 fn. 3 (Mo.App. E.D.2005); Section 1.160, RSMo 1994.


author: ROBERT S. BARNEY, Judge.

text:
    Courtney D. WILKINS, Appellant, v. STATE of Missouri, Respondent.
    No. SD 29954.
    Missouri Court of Appeals, Southern District, Division One.
    April 28, 2010.

      Mark A. Grothoff, Columbia, for appellant.
    Chris Koster, Atty. Gen., Jamie Pamela Rasmussen, Asst. Atty. Gen., Jefferson City, for respondent.
   ROBERT S. BARNEY, Judge.

Courtney D. Wilkins (“Movant”) appeals the motion court’s denial following an evi-dentiary hearing of his postconviction relief motion filed pursuant to Rule 29.15. In his sole point on appeal, Movant, who was granted the right to represent himself at trial, maintains he received ineffective assistance of counsel from his previously appointed counsel in that his counsel “failed to act as a reasonably competent attorney ... by failing to conduct an adequate investigation and failing to adequately prepare for trial.... ” He asserts such ineffective assistance prejudiced him and “ultimately forced [Movant] to proceed pro se to trial unprepared and without necessary evidence and witnesses.” We affirm the judgment and findings of the motion court.

The record reveals Movant was arrested on November 18, 2002, and he was thereafter charged with the following crimes: one count of the unclassified felony of forcible rape, a violation of section 566.030, RSMo Cum.Supp.2006; one count of the Class A felony of kidnapping, a violation of section 565.110; and one count of the Class B felony of assault in the first degree, a violation of section 565.050. Attorney Rod Hackathorn (“Attorney Hackathorn”) was appointed to represent Movant on November 27, 2002, and he represented Mov-ant at the preliminary hearing on these charges. On January 22, 2003, Attorney Miehaelle Tobin (“Attorney Tobin”) entered her appearance and she began to represent Movant thereafter.

In February of 2003, Movant filed several pro se motions despite the fact that he was being represented by Attorney Tobin. Then in March of 2003, he filed a “Motion to Dismiss or Withdraw Appointed Counsel” in which he insisted he would not accept an attorney from the public defender’s office because such attorneys “employe ] practices that would prevent [Mov-ant] from receiving effective assistance of counsel and a future appointment of counsel from that office will prevent [Movant] from receiving a fair and impartial trial.” He also filed a “Motion to Proceed Pro Se” on June 10, 2003.

The trial court held a hearing on these pro se motions on July 7, 2003, and Mov-ant related at that hearing that his appointed counsel had only spoken with him on two occasions and had not properly investigated his case as he had requested. The trial court discussed with Movant the dangerous nature of a defendant proceeding to a jury trial pro se and ultimately denied all of Movant’s pro se motions.

Movant then filed another motion to proceed pro se on October 14, 2003, and a hearing was held on this matter on October 28, 2003. At the hearing, Movant again complained about Attorney Tobin’s lack of investigation and her choice of trial strategies; however, he did admit that he had met with her a number of times since the last hearing. Further, Attorney Tobin informed the trial court that she had tracked down six of the seven witnesses recommended to her by Movant. At the conclusion of the hearing, the trial court denied Movant’s motion to proceed pro se.

On May 12, 2004, Movant filed a “Motion to Withdraw” in which he requested the trial court dismiss Attorney Tobin as his counsel. This was followed on July 28, 2004, by another motion to proceed pro se; thereafter, on November 22, 2004, Attorney Tobin filed a motion to withdraw as Movant’s counsel. A hearing was held on these motions on November 24, 2004. The trial court examined Movant about his desire to proceed pro se and Movant asserted he wanted to proceed pro se because he was more familiar with the facts of his case than Attorney Tobin was; he understood the charges against him and the procedures involved in a jury trial; he understood he would be signing a written waiver of counsel and agreed to do so; he knew what it meant to be charged as a prior offender and he was aware of the possible sentences he might incur; he had no mental defects or other issues that would affect his abilities to represent himself; he understood he would have to follow the procedural rules of evidence as an attorney is required to do; and he understood how juries were selected, that he would have to call his own witnesses, and that he had the right to object to evidence offered by the State. He informed the trial court that he had an associates degree in paralegal studies and asserted he understood that if he were convicted he could not bring an ineffective assistance of counsel claim against himself. The trial court then found Mov-ant knowingly and voluntarily waived his right to counsel; permitted Attorney To-bin to withdraw; and appointed the public defender’s office “to act as standby counsel, to be available to represent [Movant] in the event that [Movant] so requests or the court finds it necessary to terminate [Movant’s] self-representation.”

Thereafter, Movant filed numerous motions in which he sought help with his defense including a “Request to Modify Order of Standby Counsel and Request to Compel Request to Modify Order of Standby Counsel.” A hearing was held on January 7, 2005, at which time Movant informed the trial court that he wanted “assistance of counsel” from the public defender’s office, but wanted no “representation” of counsel from that office. The trial court, inter alia, denied Movant’s request to modify the trial court’s previous order appointing standby counsel. However, another hearing was held on January 20, 2005, and at this hearing the public defender’s office requested to withdraw from Movant’s case completely. Movant continued to assert he wanted the resources the public defender’s office could offer him in the way of preparation for his trial and that he wanted “at a minimum [to] have the assistance of the [p]ublic [defender's [o]ffice, not necessarily the representation.” The trial court denied the public defender’s request to withdraw; made arrangements with officials at the jail to explore some options for Movant regarding phone privileges, access to visitors, and other matters; and otherwise denied Mov-ant’s requests.

On January 27, 2005, Movant filed a pro se motion requesting the trial court reconsider its ruling on his request to modify the order for standby counsel. A hearing was held on this matter on February 2, 2005. The trial court interpreted Movant’s requests in his motion as a request for the reappointment of counsel and the trial court reappointed the public defender’s office to represent Movant.

The following week, on February 14, 2005, Movant filed yet another motion to proceed pro se and a hearing was held on this matter on February 16, 2005. At the hearing Movant explained to the trial court that he wanted to proceed pro se and that his motions to modify the appointment of the public defender’s office as standby counsel had been based on his erroneous interpretation of “assistance of counsel” versus “representation by counsel.” He was again questioned in relation to his understanding of the charges against him, his experience in dealing with the law and legal situations, his understanding of the jury trial process, his recognition of the difficulty and dangers of self-representation, his understanding that his investigation would be hampered by his incarceration, and the fact that by representing himself he was waiving his right to assert ineffective assistance of counsel upon conviction. After affirming two additional times that he desired to represent himself at trial without standby counsel, the trial court found Movant’s waiver was knowing and voluntary and the matter was set for a jury trial.

A jury trial was held February 22, 2005, through March 1, 2005. Movant appeared pro se. At the conclusion of the evidence, the jury convicted Movant of the three crimes set out above. He was then sentenced to the following consecutive terms: life imprisonment on Count I, twenty years on Count II, and thirty years on Count III. Movant filed a direct appeal and his convictions and sentences were affirmed in State v. Wilkins, 229 S.W.3d 204, 210 (Mo.App.2007).

On October 9, 2007, Movant filed a pro se Rule 29.15 motion. Movant was then appointed counsel and his counsel filed a statement in lieu of an amended motion on January 9, 2008.

An evidentiary hearing on Movant’s motion was held on February 11, 2009. The only testimony offered at the hearing was that of Movant. Movant testified that he was arrested in November of 2002 and at that time Attorney Hackathorn was appointed to represent him. Thereafter, Attorney Tobin entered her appearance, and Movant testified she did not meet with him until March of 2003 at which time Movant gave her a list of about 30 witnesses to contact and a list of possible evidence to be gathered including phone records, certain medical records, and information from his home computer. He was unable to inform the motion court as to what these un-contacted witnesses would have added to his case and, instead, centered his complaints on Attorney Tobin’s lack of contact with the witnesses. He stated no investigation into his case occurred by his appointed counsel until June of 2003. He further testified that in November of 2004 when he was finally granted permission to represent himself, there had still been little or no investigation completed by any of his appointed attorneys; however, he admitted Attorney Tobin’s files revealed she had contacted some of his proposed witnesses. Further, despite his lack of help from Attorney Tobin, he admitted that he called four witnesses to testify at trial and that he had been able to obtain subpoenas as needed during his preparation for trial. He maintained that during his self-representation he was hindered by his appointed counsel’s failure to investigate because key evidence was lost and witnesses were unable to remember certain events due to the passage of time. He further related that his appointed counsel’s inattentiveness and lack of investigation “affected [his] ability to effectively represent [himjself at trial.”

On June 29, 2009, the motion court entered its “Order Denying Movant’s Motion to Vacate, Set Aside, or Correct Judgment and Sentence Under Rule 29.15.” The motion court found Movant “failed to prove that his attorney was ineffective for allegedly failing to investigate witnesses and evidence” in that Movant “failed to specifically describe the information and the witnesses his attorney allegedly failed to investigate;” he “was unable to list any names or potential contact information for these witnesses nor did he prove how these witnesses would have helped his defense;” and he “was very vague as to the evidence [Attorney] Tobin was alleged to not have investigated.” Accordingly, the motion court denied Movant’s request for postconviction relief under Rule 29.15. This appeal by Movant followed.

Movant’s sole point relied on asserts the motion court erred in denying his Rule 29.15 motion “because a review of the record leaves a definite and firm impression that [Movant] was denied effective assistance of counsel ...” in that “his appointed counsel failed to act as a reasonably competent attorney would under the same or similar circumstances by failing to conduct an adequate investigation and failing to adequately prepare for trial.” He maintains he was “prejudiced by his appointed counsel’s failures in that important witnesses and evidence were not located and brought to the attention of the court and the jury, and counsel’s inadequate investigation and preparation ultimately forced [Movant] to proceed pro se to trial unprepared and without necessary evidence and witnesses.”

Our review of the denial of a Rule 29.15 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Williams v. Slate, 168 S.W.3d 433, 439 (Mo. banc 2005). The motion court’s findings and conclusions are clearly erroneous “only if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made.” State v. Ervin, 835 S.W.2d 905, 928 (Mo. banc 1992); Marschke v. State, 185 S.W.3d 295, 302 (Mo.App.2006). Additionally, “[cjredibility of [a] witness is a determination to be made by the motion court [and][t]his Court must defer to the motion court’s determination on matters of credibility.” Berry v. State, 225 S.W.3d 457, 462 (Mo.App.2007) (internal quotations omitted).

A movant bears the burden of proving, by a preponderance of the evidence, that he received ineffective assistance of counsel. Rule 29.15(i). To establish ineffective assistance of counsel, a movant must show that: (1) “counsel’s performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney;” and (2) counsel’s poor performance prejudiced the defense. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998); see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first prong, a movant must demonstrate that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. “The reviewing court presumes that the trial attorney’s conduct was reasonable and was not ineffective.” Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001). The second prong of the Strickland test is met when a movant shows that his attorney’s errors affected the judgment. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. A movant can prove that the judgment was affected when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Movant must prove each portion of this two-pronged performance and prejudice test in order to prevail on his ineffective assistance of counsel claim. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

At the outset we note that “[w]hen an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel.” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). For example, “a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ” Id. at 834 n. 46, 95 S.Ct. 2525; see State v. Tyler, 622 S.W.2d 379, 385 (Mo.App.1981) (holding that Faretta, 422 U.S. at 834, 95 S.Ct. 2525, “does not guarantee [a] defendant that his self-representation must be effective and, indeed, warns that a defendant who conducts his own defense relinquishes many benefits associated with the right of counsel”).

Here, the State cites this Court to Gaye v. State, 576 S.W.2d 554 (Mo.App.1978), and urges that Movant cannot bring an ineffective assistance of counsel claim for any reason, even against his pretrial counsel, based on the simple fact that he chose to represent himself at trial. In Gaye, 576 S.W.2d at 556, the movant represented himself at trial due to a finding by the trial court that his “adamant refusal of assistance by his employed counsel, an able member of the bar, constituted a waiver of representation.” State v. Gaye, 532 S.W.2d 783, 790 (Mo.App.1975). The mov-ant was convicted and brought a motion for postconviction relief under Rule 27.26. Gaye, 576 S.W.2d at 556. One of the claims in his motion was that prior to his self-representation his last appointed counsel failed to properly “conduct a pretrial investigation.” Id. The reviewing court found:

[tjhis ground is general and conclusional. It does not specify what information, facts, evidence or witnesses might have been disclosed if an investigation had been made. It does not demonstrate that the alleged neglect of counsel resulted in some prejudice to his position and deprived him of certain substantial rights that would affect the trial of his case. Furthermore, [the] movant waived a claim of ineffective assistance of counsel when he sought and was allowed to represent himself This contention has no merit.

Id. (internal citations omitted) (emphasis added).

We agree with the State that the present situation is akin to that found in Gaye, 576 S.W.2d at 556. As in Gaye v. State, Movant repeatedly, affirmatively and clearly expressed his desire to the trial court to represent himself and to waive his right to counsel. In addition, at two separate hearings he informed the trial court that he understood that by proceeding pro se he was “giving up [his] right to any [postconviction] relief based on ineffective assistance of counsel” and that by waiving counsel he would “not be able to come back ... and complain that [his] lawyer did not do an adequate job of representing [him].” See id. at 556. Furthermore, the record does not support the proposition that any waiver of counsel was done under duress. See Leady v. State, 733 S.W.2d 502, 505 (Mo.App.1987). It is clear from the record that Movant voluntarily waived his right to counsel and that he did so with the understanding that he would not be able to raise a claim of ineffective assistance of counsel. See Gaye, 576 S.W.2d at 556. The motion court’s ruling denying his request for relief was not clearly erroneous. Point denied.

The findings, conclusions of law and judgment of the motion court are affirmed.

BATES, P.J., and BURRELL, J„ Concur.

      . All rule references are to Missouri Court Rules (2008).

      . Movant was also charged as a prior offender under section 558.016. Unless otherwise stated, all statutory references are to RSMo 2000.

      . At the hearing, Movant filed a “notice of conflict with appointed counsel” in which he requested the motion court take judicial notice of the fact that he was "not in agreement with appointed counsel’s position” on the issues raised in his pro se Rule 29.15 motion. The motion court noted Movant’s assertions would be reflected in the record.

      . Movant contended that certain pictures on his home computer would prove that the victim in his underlying criminal case had a motive to make up the allegations against him and that the phone records would reveal he was on the telephone at the time of the crimes.

      . " 'Rules 29.15 and 24.035, effective January 1, 1988, replaced Rule 27.26.’” Brown v. State, 179 S.W.3d 404, 408 n. 1 (Mo.App.2005) (quoting Fincher v. State, 795 S.W.2d 505, 506 (Mo.App.1990)).

      . We note Movant has not expressly challenged the actions of standby counsel. In this connection, we observe that a "[defendant cannot adamantly waive his right to trial counsel and then complain that counsel failed to actively participate at trial.” State v. Davis, 867 S.W.2d 539, 546 (Mo.App.1993).


author: PER CURIAM:

text:
    STATE of Missouri, Appellant, v. James Dean SHAW, Respondent.
    No. WD 71656.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    Richard M. Shields, Clinton, MO, and Terrence M. Messonnier, Jefferson City, MO, for appellant.
    J. Eric Mitchell, Clinton, MO, for respondent.

      Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

The State of Missouri appeals the judgment of the circuit court, which granted James Shaw’s motion to dismiss the criminal charges pending against him on the basis that the State failed to timely prosecute him after Shaw filed a motion for speedy trial under the Interstate Agreement on Detainers Act, section 217.490 (RSMo 2000).

We affirm. Rule 30.25(b). A memorandum setting forth the reasons for this order has been provided to the parties.


text:
    William MORRISON, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 71513.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    William Morrison, Appellant pro se.
    Larry R. Ruhmann, Jefferson City, MO, for respondent.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

William Morrison appeals the Labor and Industrial Relations Commission’s order finding that he had committed misconduct and was, therefore, disqualified from receiving unemployment compensation benefits.

We affirm. Rule 84.16(b). A memorandum setting forth the reasons for this order has been provided to the parties.


text:
    Allicia FRAZIER, Appellant, v. KANSAS CITY POLICE DEPARTMENT and Division of Employment Security, Respondents.
    No. WD 71202.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    Allicia Frazier, appellant pro se.
    Daniel J. Haus, Kansas City, MO and Ninion S. Riley, Jefferson City, MO, for respondents.

      Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Allicia Frazier appeals from the decision of the Labor and Industrial Relations Commission (“Commission”) denying her claim for unemployment benefits. The Commission denied Frazier’s claim on the basis that she was discharged for misconduct connected with work. Frazier contends that the Commission erred in denying her unemployment benefits because she was discharged for misconduct that occurred off-duty and not connected with her work. We affirm. Rule 84.16(b).


text:
    Willie R. JACKSON, Appellant, v. MISSOURI BOARD OF PROBATION & PAROLE, Respondent.
    No. WD 70985.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    Willie R. Jackson, Jefferson City, MO, Appellant, pro se.
    Chris Koster, Attorney General, Stephen D. Hawke, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before Division II: MARK D. PFEIFFER, Presiding Judge, and VICTOR C. HOWARD and ALOK AHUJA, Judges.
   Order

PER CURIAM:

Willie R. Jackson appeals the judgment of the Circuit Court of Cole County dismissing his Petition for Administrative Review and Trial De Novo, in which Jackson sought judicial review of the decision of the Missouri Board of Probation and Parole denying parole to Jackson. We affirm in this per curiam order. Rule 84.16(b).


text:
    Kenneth CHARRON, Appellant, v. Mike KEMNA, et al., Respondents.
    No. WD 70963.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    Kenneth G. Charron, Bowling Green, MO, for appellant.
    Kathleen R. Robertson, Esq., Jefferson City, MO, for respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Kenneth G. Charron appeals the circuit court’s dismissal of his petition seeking monetary and injunctive relief against six employees of the Department of Corrections, arising out of an incident in which he was allegedly caught with contraband. The circuit court dismissed Charron’s petition for failure to state a claim upon which relief can be granted. We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Erron I. HOLLEY, Appellant.
    No. WD 70759.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    Ruth B. Sanders, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Robert J. (Jeff) Bartholomew, Jefferson City, MO, for respondent.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Erron Holley was convicted following a jury trial of assault in the third degree, felonious restraint, and property damage in the second degree. On appeal, Holley contests the sufficiency of the evidence to support his conviction for felonious restraint. We affirm. Rule 30.25(b).


text:
    Vincent E. WILLIAMS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70683.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    Susan E. Summers, for Appellant.
    Daniel N. McPherson, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge.
   ORDER

PER CURIAM:

Vincent E. Williams appeals from the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    Rex Braden GASH, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. WD 70374.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    Jane A. Laughlin, Esq., Kansas City, MO and Trevor Bossert, Esq., Jefferson City, for appellant.
    Scott C. Hamilton, Esq., Lexington, MO, for respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

The Director of Revenue appeals the circuit court’s judgment setting aside the Director’s suspension of Rex B. Gash’s driving privileges for driving while intoxicated. The circuit court found that, “upon due consideration of the credible evidence,” the Director “failed to establish by a preponderance of the evidence that the arresting officer had probable cause to arrest [Gash] for Driving while Intoxicated.” We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Cynthia V. MILENE, Appellant.
    No. WD 70156.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    Nancy A. McKerrow, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq. and Jayne T. Woods, Esq., Jefferson City, MO, for respondent.
    Before Division One: LISA WHITE HARDWICK, Presiding Judge, JAMES M. SMART, JR. and ALOK AHUJA, Judges.
   ORDER

PER CURIAM:

Cynthia Milene challenges the sufficiency of the evidence to support her convictions for possession of a controlled substance and making a false report. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the convictions.

AFFIRMED. Rule 30.25(b).


author: JAMES EDWARD WELSH, Presiding Judge.

text:
    TREASURER OF the STATE OF MISSOURI-CUSTODIAN OF the SECOND INJURY FUND, Appellant, v. Donald HUDGINS, Respondent.
    No. WD 71423.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    Maureen T. Shine, Kansas City, MO, for Appellant.

      David A. Slocum, Kansas City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES E. WELSH, and GARY D. WITT, JJ.
   JAMES EDWARD WELSH, Presiding Judge.

The Missouri State Treasurer as Custodian of the Second Injury Fund appeals the Labor and Industrial Relation Commission’s decision that the Second Injury Fund is liable for $29,076.47 in medical expenses that Dennis Hudgins incurred as a result of a work injury. The Commission concluded that the Second Injury Fund was liable for the medical expenses pursuant to section 287.220.5, RSMo 2000, because Hudgins’s employer, Sentinel Fastener Supply Company, did not carry workers’ compensation insurance even though it was required by law to do so. See § 287.280, RSMo 2000. The Second Injury Fund contends that requiring it to pay $29,076.47 in medical expenses exceeds the amount that is fair, reasonable, and necessary to make Hudgins whole as provided by section 287.220.5 because only $5,093 remains to be paid on the medical expenses. According to the Second Injury Fund, the remaining amount of Hud-gins’s past medical expenses has been paid by his personal insurance companies or has been written off or adjusted by the health care providers.

The problem with the Second Injury Fund’s argument is that the Second Injury Fund provides no citations to the record that establish that only $5,093 remains outstanding to be paid, that Hud-gins’s personal insurance companies have paid the expenses, or that health care providers have written off or adjusted the amount of medical expenses. “ ‘It is not the function of the appellate court to serve as advocate for any party to an appeal.’ ” Shochet v. Allen, 987 S.W.2d 516, 518 (Mo.App.1999) (quoting Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978)). “As such, [the appellate court has] no duty to search the transcript or record to discover the facts which substantiate a point on appeal.” Wilson v. Carnahan, 25 S.W.3d 664, 667 (Mo.App.2000).

But, even if we were to search the record, we would find no facts to substantiate the Second Injury Fund’s claim. That is because the Second Injury Fund admits that no evidence existed in the record supporting its contention that only $5,093 remained outstanding to be paid, that Hudgins’s personal insurance companies have paid the expenses, or that health care providers have written off or adjusted the amount of medical expenses. Indeed, in its brief, the Second Injury Fund states that it was not until after the hearing before the Division of Workers’ Compensation’s administrative law judge that it discovered that the majority of the $29,076.47 in bills submitted for payment had been paid by Hudgins’s health insurance carrier or had been completely written off by the providers. The Second Injury Fund noted further in its brief that as of its “writing” of the brief, “out of the bills totaling $29,076.47 submitted at the hearing for payment, only $5,093.00 remains outstanding to the providers.” Such a statement is not evidence. In conducting our review, we consider the whole record to determine whether there is sufficient competent and substantial evidence to support the award or if the award is contrary to the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). We do not consider matters outside the record in making our determination. Mell v. Biebel Bros., Inc., 247 S.W.3d 26, 32 (Mo.App.2008). The Second Injury Fund had the opportunity to present evidence at the hearing in regard to whether the amounts billed were “fair, reasonable, and necessary expenses ... to cure and relieve the effects” of Hudgins’s injury as required by section 287.220.5. In the absence of such evidence, the Second Injury Fund cannot “unilaterally revisit that determination” by now speculating that only $5,093 remains outstanding to be paid to the medical providers. Skinner, 306 S.W.3d at 153.

Moreover, Hudgins presented sufficient competent and substantial evidence to support the Commission’s award of medical expenses in the amount of $29,076.47. As the claimant, Hudgins bore the burden of proving his entitlement to past medical expenses. Farmer-Cummings v. Pers. Pool of Platte County, 110 S.W.3d 818, 822 (Mo. banc 2003); Ellis v. Mo. State Treas. as Custodian of the Second Injury Fund, 302 S.W.3d 217, 225 (Mo.App.2009). Where a claimant produces documentation detailing his past medical expenses and testifies to the relationship of such expenses to the compensa-ble workplace injury, such evidence provides a sufficient factual basis for the Commission to award compensation. Farmer-Cummings, 110 S.W.3d at 822; Ellis, 302 S.W.3d at 225.

At the hearing, Hudgins offered into evidence a summary of his medical bills and the copies of all the various medical bills relating to his work injury, and he testified that the charges were for treatment of his work injury. According to the summary of medical bills, the total amount due did not include amounts that had been paid by insurance, amounts that had been reduced by medical providers, or amounts that Hudgins had paid out of pocket. After the hearing, the administrative law judge issued a final award allowing compensation and found that the Second Injury Fund was liable for the $29,076.47 in medical expenses that Hudgins incurred as a result of his work injury. In affirming the ALJ’s award, the Commission attached and incorporated the ALJ’s award and decision to its final award.

Section 287.220.5 says:

If an employer fails to insure or self-insure as required in section 287.280, funds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer, or in the case of death of an employee in the employ of an uninsured employer, funds from the second injury fund may be withdrawn to cover fair, reasonable, and necessary expenses in the manner required in sections 287.240 and 287.241. In defense of claims arising under this subsection, the treasurer of the state of Missouri, as custodian of the second injury fund, shall have the same defenses to such claims as would the uninsured employer.

Although on appeal the Second Injury Fund claims that the amount the Commission ordered it to pay was not fair, reasonable, and necessary, the Second Injury Fund did nothing to challenge the reasonableness or fairness of the medical bills admitted into evidence at the hearing. Once a claimant testifies that to the best of his knowledge he remains liable on all of his medical bills, the Second Injury Fund then has the burden of proving that the claimant has no liability to pay the medical bills, that the claimant has no reimbursement obligations, or that the claimant’s liability has been extinguished. Ellis, 302 S.W.3d at 225. As the Ellis court stated:

[I]t was Claimant’s burden to detail [his] past medical expenses and testify “to the relationship of such expenses to [his] compensable workplace injury.” Once that was accomplished, if the [Second Injury Fund] wished to challenge the amount being sought by Claimant, it had the burden to establish by a preponderance of the evidence that [he] “was not required to pay the billed amounts.”

Id. (citations omitted).

In response to Hudgins’s evidence, the Second Injury Fund did not object to the evidence or even cross-examine Hudgins about the medical bills once he introduced them. Moreover, the Second Injury Fund did not present any evidence at the hearing. The Second Injury Fund could have challenged Hudgins’s testimony and evidence, but it did not do so. Id. at 224-25. Having failed to challenge the evidence at the hearing, the Second Injury Fund has no basis to challenge the award of medical expenses on appeal.

In the absence of any evidence to contradict Hudgins’s evidence, we cannot say that the Commission’s award of medical expenses in the amount of $29,076.47 was unsupported by competent and substantial evidence or was against the overwhelming weight of the evidence. We affirm.

All concur.

      . The Second Injury Fund also asserts in its first point on the appeal that the Commission erred in making its award payable to Hudgins instead of to the medical providers. In its argument, however, the Second Injury Fund fails to cite any authority in support of its contention. We deem abandoned any issues in which an appellant neither cites relevant authority nor explains why such authority is not available. Kimble v. Mulh, 221 S.W.3d 419, 423 (Mo.App.2006). We note, however, that this court's Southern District recently held that section 287.220.5 does not require the Commission to order the payment of medical expenses directly to the medical provider instead of to the claimant. Skinner v. Morgan, 306 S.W.3d 149 (Mo.App.2010); see also Wilmeth v. TMI, Inc., 26 S.W.3d 476 (Mo.App.2000), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 225 (Mo. banc 2003).

      . Regulation 8 CSR 20-3.030(2)(A) allows an interested party to file a motion to submit additional evidence to the Commission "upon the ground of newly discovered evidence which with reasonable diligence could not have been produced al the hearing before the administrative law judge.” However, the Regulation notes: "As a matter of policy, the commission is opposed to the submission of additional evidence except where it furthers the interests of justice." 8 CSR 20-3.030(2)(B). The Second Injury Fund did not file a motion to submit additional evidence to the Commission. Moreover, the Second Injury Fund does not even contend on appeal that this evidence was newly discovered evidence which with reasonable diligence could not have been produced at the hearing.

      . To the extent that the $29,076.47 did not include the amounts that Hudgins paid out of pocket, we question why Hudgins would not be entitled to these amounts. Hudgins's summary of the medical bills, however, voluntarily excluded these amounts from the total amount due.

      . Hudgins’s motion to strike the Second Injury Fund’s appeal and brief for failure to comply with Rule 84.04, which was taken with the case, is denied as moot.