author: GARY W. LYNCH, Presiding Judge.

text:
    William O. WELMAN, Brian D. Hively, and Barbara A. Godley, Plaintiffs-Respondents, v. Cameron Bunting PARKER, Defendant-Appellant.
    No. SD 30016.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 19, 2010.
    Motion for Rehearing and Transfer Denied Dec. 10, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      John M. Albright and Daniel T. Moore, Poplar Bluff, Mo, for Appellant.
    James M. McClellan, Sikeston, Mo, for Respondents.
   GARY W. LYNCH, Presiding Judge.

Attorney Cameron Bunting Parker appeals the trial court’s judgment on an accounting with her former law partners, which included a contingent fee she received from a case that originated with Parker’s former law partnership but was settled after she left that partnership. Parker contends that the trial court erred in concluding that the case remained an asset of her former law firm. She argues that a case belongs to no one other than the client, and clients are free to change their counsel at will. We agree. Because the trial court misdeclared and misapplied the law on the nature of the attorney-client relationship and what an attorney or law firm can recover upon being discharged, we reverse the judgment and remand the cause for further proceedings.

Factual and Procedural Background

For two years, from January 1, 2003, until December 31, 2004, Parker was a partner in a law firm called Welman, Hively, Godley & Parker L.L.P., a limited liability partnership. The law firm had no written partnership agreement. In late November 2004, Parker informed the plaintiffs, who were the other three partners, William Welman, Brian Hively, and Barbara Godley (collectively, “former partners”), that she would be withdrawing from the firm effective December 31, 2004. Within a week of her announcement, Parker and her former partners met to discuss the process of dissolving the partnership and winding up its affairs. No agreement as to the dissolution of the partnership was reached. As a result of these discussions, however, Parker took some of the case files with her when she left, and her former partners kept some of the case files. Although requested to do so, Parker did not further participate in a significant way in an accounting or full settlement of the partnership.

The major dispute concerning the dissolution of the partnership involved a pending personal-injury case in which the firm had been representing plaintiff Charles Yates, who injured himself while working as a truck driver. Yates signed a contingent-fee contract for representation by the Welman law firm in 2002, when Parker was an associate with the firm. Since its inception, Parker was the attorney most closely involved in the case. At the time Parker formally withdrew on December 31, 2004, she was the only attorney at the firm with whom Yates had ever communicated about his case. When Parker decided to leave the partnership, Yates received a letter from Parker asking whether he desired to stay with the Welman firm or continue to have Parker represent him, and he elected to continue with Parker, eventually signing a contingent-fee contract with Parker’s new law firm.

In January 2005, Parker became a partner at Welch, Todd & Parker Law Firm. A month later, in February 2005, Parker filed a lawsuit in Yates’s case, and in January 2006, Parker reached a settlement with the defendant insurance company in the amount of $362,426.40. Parker and her new law firm received a contingent fee of $119,600.00 from the settlement.

After Yates’s case settled, Parker’s former partners filed suit in September 2007, seeking an accounting, wind-up, and termination of the Welman partnership. The case was tried without a jury, and the trial court filed an opinion pursuant to Rule 73.01(c). Relying on an Illinois decision, Ellerby v. Spiezer, 138 Ill.App.3d 77, 92 Ill.Dec. 602, 485 N.E.2d 413 (1985), the trial court determined as a matter of law that “contingent fee cases pending at the time of the dissolution continue to be partnership business after dissolution, and fees from those cases are assets of the partnership.” Furthermore, even though the trial court acknowledged that clients have the right to discharge their attorney at will, it stated that a partner is "not entitled to have the client discharge the partnership and hire the partner individually.”

The trial court accordingly concluded that the entire $119,600.00 contingent fee that Parker received in the Yates case belonged not to Parker but to the dissolved partnership. In addition, the trial court determined that the $12,070.00 fee that Parker collected in a probate matter in 2005 also belonged to the dissolved partnership, since it was a case that belonged to the partnership before Parker took the file when she left. By including the fees collected in the two cases, the trial court calculated that Parker collected $131,607.00 in partnership assets, and, after deducting her interest, Parker owed her former partners $106,954.00. Parker timely appealed.

Standard of Review

In court-tried cases, our standard of review generally is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Accordingly, “we will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or misapplies the law.” State ex rel. Cravens v. Nixon, 234 S.W.3d 442, 445 (Mo.App.2007). In reviewing the trial court’s decision, we review the evidence and all reasonable inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences. Id. at 446.

Discussion

In Parker’s sole point on appeal, she contends the trial court misdeclared the law in concluding that a contingent-fee contract remains an asset of a dissolved law partnership because Missouri has abandoned the “contract approach” to the termination of the attorney-client relationship, instead adopting an approach based on quantum meruit. According to Parker, this means that “it is the client who has the unfettered right to select his or her lawyer, with the lawyer’s interest being limited to the reasonable value of his or her work[.]”

The precise issue in this case— who, as between a withdrawing partner and the former partners, is entitled to the contingent fee from a matter that was pending at the time of the dissolution of the law firm handling it — has not been directly decided by a Missouri appellate court. The trial court looked to and relied on opinions from foreign jurisdictions, primarily Ellerby, to reach the conclusion that contingent-fee cases and the attorney fees they garner remain assets of the dissolved partnership. Two Supreme Court of Missouri decisions, however, lead us to the conclusion that once the firm’s contingent-fee contract is terminated by the client by entering into a subsequent contingent-fee contract with another law firm, even if that firm includes the withdrawn partner, the only asset of the dissolved law firm is its right to recover the reasonable value of its services rendered.

In Plaza Shoe Store, Inc. v. Hermel, Inc., 636 S.W.2d 53 (Mo. banc 1982), our Supreme Court addressed the client’s obligation to compensate a lawyer or law firm upon termination of the relationship by the client. In that case, Plaza Shoe Store hired a law firm under a contingent-fee arrangement to bring an action for alleged negligence in the design and construction of a building that it leased. Id. at 53-54. The law firm provided quality representation to Plaza Shoe Store and put extensive work into the case, but Plaza Shoe Store discharged the firm without cause before judgment or settlement had been reached. Id. at 55. Prior to the discharge, the law firm had received a settlement offer of $50,000.00 from the defendant and recommended that Plaza Shoe Store accept this offer, and the law firm sought one-third of that amount, plus expenses, from their former client at trial. Id. The trial court awarded the law firm $17,242.00, an amount greater than the reasonable value of the services it provided, and Plaza Shoe Store appealed. Id.

The Court concluded that an attorney retained by a client under a contingent-fee contract who is discharged without cause before settlement or judgment of the matter is not entitled to recover under the contingent-fee contract, but is instead limited “to the reasonable value of services rendered, not to exceed the contracted fee, and payable only upon the occurrence of the contingency.” Id. See also Int’l Materials Corp. v. Sun Corp., Inc., 824 S.W.2d 890, 895 (Mo. banc 1992) (citing Plaza Shoe Store, Inc. for the proposition that “[ojnce termination of the lawyer-client relationship has occurred before completion of a contingent fee contract, the lawyers’ only recovery could be in quantum meruit for benefits conferred.”). Thus, the trial court’s judgment was reversed and remanded for entry of judgment in accordance with the reasonable value of the services the law firm rendered to Plaza Shoe Store. Plaza Shoe Store, Inc., 636 S.W.2d at 60.

The Court in Plaza Shoe Store, Inc. referenced its holding as the “modern rule” of attorney recovery, in contrast to the “contract rule” that Missouri adhered to previously, under which the employment agreement between attorney and client is treated like any other employment contract. Id. at 57. See also Goldstein and Price, L.C. v. Tonkin & Mondl, L.C., 974 S.W.2d 543, 547-48 (Mo.App.1998). The modern rule, whereby the discharged attorney’s recovery is limited to the reasonable value of his services on a quantum meruit theory, is optimal because it “evidences a greater sensitivity to the desired public policy of allowing a client to discharge his attorney at any time, without undue burden, in a manner that is not cost prohibitive[.]” Plaza Shoe Store, Inc., 636 S.W.2d at 60. Courts that adhere to the modern rule take into account the “special confidence and trust which should set the attorney-client relationship apart from other employment relationships,” so that if a client becomes dissatisfied with his attorney at any time, he may release that attorney, with or without cause, and hire another. Id. at 58.

Another Supreme Court decision, Matter of Cupples, 952 S.W.2d 226 (Mo. banc 1997), addressed the duties attorneys in a law firm have toward their clients and each other when an attorney withdraws from the firm. First, the Court emphasized the nature of the attorney-client relationship: “Clients are not the ‘possession’ of anyone, but to the contrary, control who represent them.... The client’s files belong to the client, not to the attorney representing the client. The client may direct an attorney or firm to transmit the file to newly retained counsel.” Cupples, 952 S.W.2d at 234. The Court held that where an attorney withdraws from a law firm, it is incumbent on both the attorney and the law firm to “inform firm clients of any material change in representation and to obtain the clients’ informed direction as to how the client wishes its work to be handled.” Id. at 236. Additionally, the withdrawing attorney and the law firm have a mutual duty toward each other to act in good faith in winding up the firm’s business and to act in a professional and competent manner in handling the clients’ files in accordance with the clients’ directions. Id.

The Ellerby holding — fees from pending contingent-fee contracts are assets of the dissolved partnership — on the other hand, was based upon the premise that the withdrawing partner “was not entitled to take any action with respect to the [partnership’s] unfinished business leading to purely personal gain, such as having the client discharge the partnership and hire him individually.” Ellerby, 92 Ill.Dec. 602, 485 N.E.2d at 416; see Thompson v. Hiter, 356 Ill.App.3d 574, 292 Ill.Dec. 362, 826 N.E.2d 503, 514 (2005) (recognizing this premise but refusing to extend it to a joint venture on a single case). This premise, however, is undermined by Cupples, which requires both the law firm and the withdrawing partner to advise the client of this material change in representation and to obtain the client’s informed direction as to how the client desires to be represented from that point forward. Cupples, 952 S.W.2d at 234. Under Missouri law, the decision as to whether the contingent-fee contract remains an asset of the dissolved partnership is solely the decision of the informed client who has the free choice to further engage the services of the former partners, the withdrawing partner — either individually or as a partner in a new partnership — or an entirely different attorney or law firm.

Given these legal principles, the trial court’s reliance upon the “contract approach” in Ellerby was misplaced. Consistent with Plaza Shoe Store, Inc. and Cupples, we hold that if a law firm is retained by a client on a contingent-fee basis and the client elects to hire a different law firm after the first firm dissolves and before judgment or a settlement has been reached on his or her case, the dissolved law firm is only entitled to recover the reasonable value of the services it provided. This amount cannot exceed the original contracted fee and is payable only upon the occurrence of the contingency. The contingent fee achieved from eventual judgment or settlement is not an asset of the dissolved firm. In the present case, therefore, we conclude that Parker’s former partners should be able to recover only their share of the reasonable value of the legal services the partnership provided to Yates before the partnership dissolved on December 31, 2004.

Following Cupples, if the dissolution is caused by an attorney’s withdrawal and that attorney has represented the client while at the law firm, both the law firm and departing attorney have a duty to communicate the change in circumstances to the client. The primary purpose of the communication is to “assist these clients in determining whether their legal work should remain with the law firm, be transferred to the departing attorney, or be transferred elsewhere.” Cupples, 952 S.W.2d at 235. Here, Parker notified Yates in a letter that she was leaving the Welman firm, and Yates chose to keep his case with Parker and transfer his file to her new law firm with which he thereafter entered into a contingent-fee agreement.

The trial court’s determination that “contingent fee cases pending at the time of dissolution continue to be partnership business after dissolution, and fees from those cases are assets of the partnership!,]” as applied to this particular set of facts, is a misdeclaration of the law, and the trial court’s judgment awarding the entire contingent fee in the Yates case to the former partners is a misapplication of the law. Clients are free to discharge the law firm or attorney who represents them at any time and hire new counsel; requiring them to pay a double contingent fee would hinder this freedom. Plaza Shoe Store, Inc., 636 S.W.2d at 58. Similarly, the trial court’s limited view of the limited compensation available to the withdrawing partner for services rendered to client after withdrawal, should the client choose to have the withdrawing partner continue to represent him or her, would unduly impinge upon the client’s perceived freedom to change attorneys without cause and could have a “ ‘chilling effect’ ” upon the choice of that option by the client. See id. (quoting Rosenberg v. Levin, 409 So.2d 1016, 1021 (Fla.1982)).

Further, the trial court erroneously determined that a withdrawing partner is not entitled to have the “client discharge the partnership and hire the partner individually.” This statement contradicts the fundamental right of clients to freely choose their counsel. See Cupples, 952 S.W.2d at 234. It also is diametrically opposed to the holding in Cupples that upon proper notice the client is free to “remain with the law firm, be transferred to the departing attorney, or be transferred elsewhere.” Id. at 235. Clients are not the “property of the attorney or law firm who represents their interests; clients are free to discharge their attorney at any time, for whatever reason. Id. at 234. If a client terminates a contingent-fee contract with a law firm without cause before the contingency occurs, the law firm can recover only the reasonable value of its services to the client. See Plaza Shoe Store, Inc., 636 S.W.2d at 60. We see no reason why this rule should not apply where the client’s termination is triggered by the law firm’s dissolution.

Parker’s former partners believe that Plaza Shoe Store, Inc. is not on point and has no precedential value for this decision because it does not relate to the dissolution, wind-up, and termination of a law partnership. It is true that Plaza Shoe Store, Inc. does not specifically deal with partnership dissolution, and the trial court was correct to rely on Missouri’s Uniform Partnership Law (“UPL”) in orchestrating the wind-up and termination of the dissolved partnership. The UPL, however, does not substantively resolve the issue as to which party is entitled to the contingent fee from Yates’s settlement. That issue is determined by the principles enunciated in Plaza Shoe Store, Inc. and Cup-pies, as discussed supra. Yates’s execution of a contingent-fee agreement with the new law firm terminated the contingent-fee agreement with the dissolved law firm, leaving it with only a claim for the reasonable value of its services rendered before such termination. That claim, not the terminated contingent-fee agreement, is the asset of the dissolved partnership involved in the wind-up of its affairs and the partnership’s termination in accordance with the procedures in the UPL.

Decision

The trial court’s judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

SCOTT, C.J., and RAHMEYER, J., concur.

      . References to rules are to Missouri Court Rules (2010), unless otherwise indicated.

      . Counsel for the former partners conceded at oral argument that Parker’s letter to Yates complied with all ethical requirements as set forth in Cupples.

      . The UPL is located in Chapter 358 of the Missouri Revised Statutes.


source: Caselaw Access Project

author: KURT S. ODENWALD, Judge.

license: Public Domain

text:
    Gerald Travis GRUBBS, Jr., Respondent, v. STANDARD INSURANCE COMPANY, Appellant.
    No. ED 94568.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Nov. 30, 2010.

      Richard J. Pautler, Thompson Coburn LLP, St. Louis, MO, for Appellant.
    Kenneth A. Seufert, Law Office of Seu-fert & Dudley, P.C., Farmington, MO, for Respondent.
   KURT S. ODENWALD, Judge.

Introduction

Plaintiff Gerald Grubbs, Jr. (Claimant) filed a declaratory judgment action against Defendant Standard Insurance Company (Standard) seeking a determination of benefits coverage under a group long-term disability policy. In particular, Claimant sought a ruling that Standard was not entitled to offset Claimant’s disability benefits by the amount Claimant received in settlement of his workers’ compensation claim. Standard appeals the trial court’s summary judgment order in which the trial court concluded that Standard may not offset Claimant’s long-term disability benefits by the amount of the compromise settlement reached by the parties in Claimant’s workers’ compensation claim. Because the express provisions of Standard’s group disability policy allow a set off of any amount received by Claimant for lost wages under the workers’ compensation laws, we reverse the trial court’s judgment.

Factual and Procedural Background

Claimant, an employee of the State of Missouri (State) and a member of the Missouri State Employees Retirement System (MOSERS), was insured by a group long-term disability insurance policy (Policy) issued by Standard. Standard determined that Claimant was disabled and entitled to disability benefits under the Policy, and has paid Claimant benefits since March 2004.

After Standard began paying Claimant’s disability benefits under the Policy, Claimant filed a claim for permanent partial disability under the Missouri Workers’ Compensation Act, Section 287.010 et seq., RSMo 2000. Claimant filed the workers’ compensation claim as a result of an injury he sustained in the course of his employment in December 2003. Claimant subsequently settled his workers’ compensation claim. Under the terms of the settlement, Claimant’s employer agreed to pay him a lump sum of $24,165.93, which reflected a 35 percent partial disability of Claimant’s left shoulder. The Second Injury Fund agreed to pay Claimant a lump sum of $60,000. These amounts were subject to reduction by attorney fees and out-of-pocket expenses in an aggregate amount of $24,136.92. The parties agreed that the net payment to Claimant for the settlement of his workers’ compensation claim was equivalent to $144.30 per month to Claimant for the remainder of his life. Claimant agreed to accept these sums in full settlement of all claims stemming from the injury arising out of Claimant’s employment. Claimant, his employer, and the Second Injury Fund entered into a Stipulation for Compromise Settlement stating the terms of the settlement agreement. The parties expressly stipulated that no portion of the settlement amount was attributable to rehabilitation expenses, death benefits, burial expenses, or medical expenses.

After Claimant settled his workers’ compensation claim, Standard determined that pursuant to the terms of that settlement, Claimant received the equivalent of $144.30 per month under a workers’ compensation law for lost wages. Standard further concluded that Claimant’s settlement of his workers’ compensation claim was “deductible income” as defined in the Policy. Thus, Standard deducted $144.30 from its monthly payment of disability benefits to Claimant. Claimant then filed his motion for declaratory judgment seeking to prohibit the offset.

By agreement, the parties stipulated to the facts of the case and filed cross motions for summary judgment. The Joint Stipulation of Facts provides that the Policy defines the benefit payable to Claimant as “60% of [your] pre-disability earnings reduced by deductible income.” The Policy defines “deductible income,” to include:

Any amount you receive or are eligible to receive for lost wages because of your disability arising out of or in the course of employment with the Employer, including amounts for partial or total disability, whether permanent, temporary, or vocational, under any of the following:
a. A workers’ compensation law;

The Policy then provides as an “Exception to Deductible Income” any amount paid under a Workers’ Compensation Act or similar law for benefits other than lost wages.

The trial court granted Claimant’s motion for summary judgment and denied Standard’s motion for summary judgment finding that Standard was precluded from offsetting Claimant’s long-term disability benefits by the amount attributable to the Stipulation for Compromise Settlement, specifically $144.30 per month, past, present, or future. As grounds for its ruling, the trial court found that: (1) the lump sum payment to Claimant was consideration for Claimant’s compromise of litigation, specifically claims for permanent disability and future medical treatment; (2) lost wages in the context of the workers’ compensation law only applies to compensation paid to the employee for temporary total disability benefits as provided by Section 287.160 and 287.170, and as total disability as defined by Section 287.020.7, and specifically, compensation for lost wages while the employee is unable to work while going through the healing process; (3) the compensation received by Claimant from the employer for the permanent disability to Claimant’s left shoulder as a result of his work-related accident on December 9, 2008, was not the same as “lost wages;” (4) the compensation received by Claimant from the Second Injury Fund for the permanent disability attributed to Claimant’s pre-existing medical conditions was not the same as “lost wages;” and (5) Standard’s group long-term disability insurance policy is ambiguous and must be construed in favor of coverage for Claimant.

This appeal follows.

Point on Appeal

In its sole point on appeal, Standard claims that the trial court erred in denying its motion for summary judgment and granting summary judgment for Claimant because under the terms of Standard’s group long-term disability insurance policy, Standard was entitled to offset any amount Claimant received in settlement of his workers’ compensation claim for lost wages against the benefits otherwise payable to him under the terms of that policy. Standard asserts that Claimant’s settlement of his claim for permanent partial disability under Missouri’s workers’ compensation laws was a recovery of “lost wages” within the meaning of the policy, thereby allowing Standard to offset the workers’ compensation settlement from the benefits recoverable by Claimant under the Policy.

Standard of Review

The standard of review for an appeal from summary judgment is essentially de novo. Am. Family Mut. Ins. Co. v. St. Clair, 295 S.W.3d 586, 591 (Mo.App. E.D.2009), citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment will be upheld on appeal if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Id. Summary judgment is particularly appropriate when construction of a contract is at issue and the contract is unambiguous on its face. Lupo v. Shelter Mut. Ins. Co., 70 S.W.3d 16, 18-19 (Mo.App. E.D.2002).

Discussion

The appeal before us presents no disputed issue of material fact. The salient issue presented is whether Claimant’s workers’ compensation settlement was a recovery of lost wages as provided under the Policy or whether the settlement was for something other than lost wages, thereby removing the settlement from the set off provisions of the Policy. The Policy does not define the term “lost wages.” Claimant argues the absence of a statutory definition renders the terms of the Policy ambiguous, and therefore not subject to resolution by summary judgment. Standard posits that the Policy is unambiguous despite the lack of guidance from an internal definition because settled Missouri case law recognizes Claimant’s workers’ compensation settlement as a recovery of lost wages. Specifically, Standard notes that, under Missouri law, workers’ compensation payments are divided into two categories, wage-loss payments based on the concept of disability, and payments of hospital and medical expenses occasioned by any work-connected injury, regardless of wage loss or disability. Sheldon v. Bd. of Trs. of the Police Ret. Sys., 779 S.W.2d 553, 556 (Mo. banc 1989). Standard then argues that because the parties expressly stipulated that the workers’ compensation settlement specifically excluded any amount attributable to rehabilitation expenses, death benefits, burial expenses, or medical expenses, the settlement represented a recovery for Claimant’s lost wages. We agree.

I. The Policy is Not Ambiguous

As we construe the Policy granting the disability benefit payable to Claimant from Standard, we are mindful that insurance policies are contracts; thus, the rules of contract construction apply. Lupo, 70 S.W.3d at 19. The words of a policy are given them ordinary meaning unless it is obvious that a technical meaning was intended. Krombach v. Mayflower Ins. Co. Ltd., 785 S.W.2d 728, 731 (Mo.App. E.D.1990). Courts cannot create an ambiguity to enforce a particular construction. Rodriguez v. Gen. Accident Ins. Co. of Am., 808 S.W.2d 379, 382 (Mo. banc 1991). Moreover, where no ambiguity exists in the contract, the court enforces the policy as written. Peters v. Employers Mut. Cas. Co., 853 S.W.2d 300, 302 (Mo. banc 1993).

The issue of whether a contract is ambiguous is a question of law. Id. The Missouri test for ambiguity is clear. The policy must be read as a whole to determine the parties’ intent. Oak River Ins. Co. v. Truitt, 390 F.3d 554, 557 (8th Cir.2004), citing Kyte v. Am. Family Mut. Ins. Co., 92 S.W.3d 295, 298-99 (Mo.App. W.D.2002). A contract is ambiguous only if reasonable people may fairly and honestly differ in their construction of the terms because the terms are susceptible to more than one meaning. Lupo, 70 S.W.3d at 19. A contract is not ambiguous merely because the parties disagree over its meaning. Id. Evidence of how the contract was understood or acted upon by the parties is only used when the contract or a contract term is unclear. Nickles v. Auntie Margaret Daycare Corp., 829 S.W.2d 614, 616 (Mo.App. E.D.1992).

Ambiguous language is construed against the insurer. Peters, 853 S.W.2d at 302. Likewise, so is limiting language. Chase Resorts, Inc. v. Safety Mut. Cas. Corp., 869 S.W.2d 145, 150 (Mo.App. E.D.1993). If an ambiguity exists, the policy language will be interpreted as understood by the lay person who purchased it. Oak River Ins. Co., 390 F.3d at 558. Courts should not adopt an interpretation neutralizing a policy provision if another interpretation gives it effect. Id.

Standard argues that the Policy is not ambiguous because the Policy clearly provides for a setoff for workers’ compensation benefits, unless the benefits paid are not for lost wages.

Because the term “lost wages” is not defined by the Policy, Claimant asserts the term must be given its ordinary meaning. The ordinary meaning of “lost wages,” Claimant contends, is not the “technical, philosophical or scientific meanings of terms, nor a restrictive meaning acquired in legal usage.” Burns v. Smith, 303 S.W.3d 505, 511 (Mo. banc 2010). Claimant suggests the “ordinary meaning” of the term by referring to the Memam Webster online dictionary, which defines “lost” as “taken away or beyond reach or attainment” and “wage” as “a payment usually of money for labor or services usually according to contract and on an hourly, daily, or piecework basis — often used in plural.” Merriam Webster, available at http://www. merriam-webster.com. Taken together, we find that the ordinary meaning of the term “lost wages” applies to payments Claimant would have received, but which have been taken away or are no longer attainable due to his injury. Even without a definition of “lost wages” contained with the policy, when we apply the ordinary meaning of the term, the Policy states that Claimant’s disability benefit may be reduced by any amount Claimant receives under the worker’s compensation law to compensate Claimant for payments that have been taken away or are no longer attainable due to his injury. We hold that applying the “ordinary meaning” of the term “lost wages” as found in Merriam Webster is wholly consistent with the term “lost wages” as used in the policy. Accordingly, we hold the Policy to be unambiguous despite the absence of a definition for the term “lost wages.”

II. The Stipulation for Compromise Settlement was for lost wages.

Having determined “lost wages” as used in the Policy is consistent with the simple and objective standard for an ordinary person of average understanding, we next consider whether the Stipulation for Compromise Settlement provided for payment of Claimant’s lost wages, or constituted a payment to Claimant for something other than lost wages. Standard argues that the terms of the Stipulation for Compromise Settlement for his workers’ compensation claim, when reviewed under Missouri law regarding workers’ compensation benefits, mandate a finding that the settlement constituted payment for “lost wages” and thus, Standard’s offset was proper.

In the Stipulation for Compromise Settlement, Employer and Claimant agreed:

6. That there are dispute(s) between the Employee and the Employer/Insurer as to the extent and nature of permanent partial disability and future medical care.
7. That there are dispute(s) between the Employee and the Second Injury Fund as to the nature and extent of permanent partial disability, permanent total disability and the liability of the Second Injury Fund. That the alleged pre-existing disability and percentage are as to BAW (diabetes, anxiety/depression, cardiac), and right shoulder.
8. That because of the dispute(s) it is agreed by the parties to enter into a compromise lump sum settlement under Section 287.390 RSMo.

We note that as part of the joint summary judgment submission made to the trial court, Claimant acknowledged and expressly agreed that no portion of the settlement amount was a payment for rehabilitation expenses, death benefits, burial expenses, or medical expenses. Given this agreement by the parties, we know what the settlement payment did not represent. Acknowledging these parameters, the question before us is whether the settlement amount represents payment for anything other than lost wages. If not, the trial court erred in granting summary judgment in favor of Claimant. In resolving this appeal, we are guided by the workers’ compensation statutes and the clear interpretation of those statutes by Missouri courts.

We begin our worker’s compensation analysis with Section 287.190, which provides payment for permanent partial disability under the statutory scheme. Section 287.190 provides a computation by which the payment from an employer to an employee for a work-related injury causing a permanent partial disability is to be determined. The statute specifies that the compensation to be paid is determined by a schedule of losses for specific injuries. The schedule multiplies the employee’s “weekly earnings” or “weekly wage” by a pre-determined number of weeks depending on the severity of the injury. Section 287.190. Although the statute does not explicitly state that the compensation paid pursuant to its terms is to compensate the employee for “lost wages,” the plain language of the statute leaves no doubt that the compensation paid under the statute is properly considered payment for the injured employee’s lost wages.

Claimant argues and the trial court found that the lump sum payment made to Claimant was not for lost wages, but represented consideration for the parties’ compromise of litigation, specifically Claimant’s claims for permanent disability and future medical treatment. The trial court further found that “lost wages” is not equivalent to “compensation” paid for a permanent disability under the workers’ compensation law. We disagree.

The dominant theme of Claimant’s argument to the trial court and on appeal is that an actual loss of earnings is not an essential element to a claim of permanent partial disability, and therefore, a recovery for a permanent partial disability does not equate to a recovery for lost wages. Citing Seeley v. Anchor Fence, 96 S.W.3d 809, 819 (Mo.App. S.D.2002), and Wiele v. Nat’l Super Markets, Inc., 948 S.W.2d 142, 148 (Mo.App. E.D.1997) (overruled on other grounds), Claimant asserts that an employee is compensated for a permanent partial disability based on a schedule of losses that does not require an actual loss of earnings, and that the Second Injury Fund liability stems from the “synergistic effect of the disability caused by the primary injury combined with disabilities from the pre-existing medical conditions,” which encompasses more than lost earnings.

Although the Seeley court stated that an actual loss of earnings is not an essential element of a claim for permanent partial disability, the court expressly stated that permanent partial disability benefits were meant “to compensate an injured party for lost earnings.” Seeley, 96 S.W.3d at 819. Thus, a claimant may indeed return to work, as the Seeley court acknowledged, but the claimant’s injury impairs his “efficiency in the ordinary pursuits of life,” and therefore the award compensates him for earnings he would have attained, had he been without injury. See id. Claimant suggests that Standard mistakenly equates the term “lost wages” with the term “loss of earning capacity” as used by the courts. We are not persuaded and find no distinction between these terms. In this context, the difference is a matter of semantics, nothing more.

Claimant contends that an actual loss of earnings is not an essential element of a claim for permanent partial disability under Wiele, 948 S.W.2d at 148. While Claimant correctly quotes Wiele, he misconstrues the holding in Wiele by failing to address the quote in context. Wiele addressed, among other issues, the percentage applied to the claimant’s permanent partial disability. The Wiele court considered the level of the employee’s lost earnings and ability to continue working in determining the appropriateness of the Commissioner’s award. Id. Thus, the award reflected lost wages because the award was not as large as it would have been, had the claimant been unable to return to work. Analogizing Wiele to the analysis employed in Seeley, the award for partial permanent disability compensated the Wiele claimant for the injury that 'impaired his “efficiency in the ordinary pursuits of life,” including “lost earnings.”

Claimant also avers that his recovery for permanent total disability encompasses more that lost earnings. Section 287.200 addresses the amount to be paid on a workers’ compensation claim for a permanent total disability. Like the recovery for a permanent partial disability, the statutory scheme for compensating a permanent total disability is also based upon the weekly compensation paid to the injured worker. Notably, Section 287.200.3 allows for the suspension of the permanent total disability award whenever an injured worker is restored to his regular work by the use of glasses, prosthetics, appliances or physical rehabilitation. The fact that a permanent total disability award may be suspended upon an employee’s return to work underscores the statutory scheme of equating the disability award to a worker’s lost earnings, and nothing more.

We find the Missouri Supreme Court opinion in Sheldon v. Board of Trustees of Police Retirement System, 779 S.W.2d at 555-56, provides appropriate guidance in this matter. As noted in Sheldon, workers’ compensation benefits for physical injury, such as the benefits Claimant received here, are divided into only two categories: wage-loss payments based on the concept of disability, and payment of hospital and medical expenses from a work-connected injury regardless of wage loss or disability. Id. Claimant has not provided any judicial authority to support its contention that a workers’ compensation award can be characterized as anything other than wage loss payments or payments for hospital and medical expenses, nor have we found any such authority.

We note that this Court previously has found that permanent partial disability benefits are meant to compensate an injured employee for his lost wages. Hankins Const. Co. v. Missouri Ins. Guar. Ass’n, 724 S.W.2d 583, 587 (Mo.App. E.D.1986) (overruled on other grounds). In Hankins, where the Missouri Insurance Guaranty Association argued that the loss of earning capacity is conclusively presumed and the amount of an award for permanent partial disability is determined by reference to a schedule of losses, this Court noted:

the reason for [Section] 287.190’s presumption is that a permanent injury will in most cases affect earning capacity. The reason for the award of permanent partial disability benefits is to compensate an injured party for lost earnings. The use of the schedule is only for administrative convenience. It simply removes the need to try the issue of what the effect on earning capacity is for each Workers’ Compensation claimant, an administrative nightmare in a statutory claims procedure which was intended to be streamlined.

Id.

This “presumption” that a permanent pai’tial disability will result in a loss of wages in an amount computed according to the statutory schedule eliminates the need to prove actual losses. See, e.g., Komosa v. Monsanto Chem. Co., 317 S.W.2d 396, 400 (Mo. banc 1958). We decline to follow Claimant’s argument that this presumption undermines the principle stated in Sheldon that workers’ compensation awards represent either wage-loss payments based on the concept of disability or the payment of hospital and medical expenses from a work-connected injury.

Because the parties here have expressly agreed that the amount paid to Claimant pursuant to the Stipulation for Compromise Settlement was not for medical expenses, we find under Sheldon, the workers’ compensation compromise payment must have been wage-loss payments, or “lost wages.”

We hold that the Stipulation for Compromise Settlement entered into for a lump sum workers’ compensation award to Claimant from Standard, and not for medical expenses, was an award for “lost wages.” Because “lost wages” constitutes deductible income under the Policy provided by Standard, and because the Stipulation for Compromise Settlement was a lump sum payment of lost wages, Standard properly offset the amount Claimant received in the Stipulation for Compromise Settlement from Claimant’s long-term disability benefits. We find that the trial court improperly granted Claimant’s summary judgment motion in Claimant’s declaratory judgment action.

Conclusion

The judgment of the trial court is reversed.

ROY L. RICHTER, C.J., and GARY M. GAERTNER, JR., J., Concur.

      . Unless otherwise noted, all further statutory references are to RSMo 2000.


author: PER CURIAM.

text:
    George R. LANNING, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94174.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 7, 2010.
    Edward S. Thompson, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Richard A. Starnes, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

George R. Lanning (“Movant”) appeals from the denial of his Rule 29.15 motion for post-conviction relief without an evi-dentiary hearing. Movant asserts the motion court clearly erred in denying his Rule 29.15 motion without an evidentiary hearing because he alleged facts not conclusively refuted by the record which, if proven, showed his trial counsel was ineffective for failing (1) to impeach the victim’s mother’s testimony, (2) to object to Movant’s leg restraint in the courtroom, (3) to object to the courtroom arrangement, and (4) to call Deputy Eric Schlueter to testify.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. The motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 29.15(k). Ai opinion reciting the detailed facts and restating principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


author: LAWRENCE E. MOONEY, Judge.

text:
    In the Interest of: J.M.
    No. ED 94515.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 21, 2010.

      Kathryn L. Pierce, St. Louis, MO, for appellant.
    Brian P. Seltzer, Clayton, MO, Richard J. Childress, St. Louis, MO, for respondents.
    Michael E. Myers, St. Louis, MO, Guardian Ad Litem.
   LAWRENCE E. MOONEY, Judge.

On October 20, 2009, D.M., an 18-year-old mother who was under the jurisdiction of the family court, appeared pro se for a hearing for a periodic review of her case. The trial court ordered that Mother’s 22-month-old child be taken into protective custody due to “numerous neglectful acts.” On January 15, 2010, the trial court conducted a hearing on whether Mother had been neglectful. After this hearing, which we shall later recount in detail, the trial court concluded that Mother was guilty of a pattern of neglectful behavior.

Initially, we address the juvenile officer’s timely motion -to supplement the legal file. The proposed supplementary material includes the court minutes and documents from Mother’s own juvenile case, and three exhibits admitted at the child’s adjudication and disposition hearings. Counsel for the juvenile officer admits that he neither asked the family court to take judicial notice of the files purportedly containing these documents nor did he proffer the majority of these documents for admission into evidence. The only documents in the juvenile officer’s proposed supplemental legal file that were admitted into evidence in the child’s case are letters and reports admitted as the guardian ad litem’s exhibit 1 and the juvenile officer’s exhibits 1 and 2.

Rule 81.12(f) permits filing a supplement to the record on appeal when “anything material is omitted from the record on appeal.” Documents not considered by the trial court and not made part of the record below, however, cannot be introduced into the record on appeal, Winston v. Dir. of Revenue, 137 S.W.3d 502, 505 (Mo.App. E.D.2004), and we cannot consider them, Southwestern Bell Media, Inc. v. Ross, 794 S.W.2d 706, 708 (Mo.App. E.D.1990). Furthermore, the trial court’s mere knowledge that a document or other evidence exists is insufficient to allow introduction of such evidence for the first time on appeal. Marc’s Restaurant, Inc. v. CBS, Inc., 730 S.W.2d 582, 584 (Mo.App. E.D.1987).

The legislature has declared that one or more divisions in certain circuits, including St. Louis County, shall be designated as “family courts.” Section 487.010.1 RSMo. (2000). The family court shall have exclusive original jurisdiction to hear and determine juvenile proceedings. Section 487.080. Missouri’s unified family-court system seeks to create a single court with comprehensive authority over all cases involving children and their families. In re S.M.H., 160 S.W.3d 355, 361 (Mo. banc 2005)(4-3 decision). To the extent possible, one specially-trained judge is to address the legal and accompanying emotional and social issues challenging each family in order to achieve a more efficient and compassionate system of one judge for one family. Id.

As a general rule, a court will take judicial notice of its own records. State v. Pennick, 364 S.W.2d 556, 559 (Mo.1963). Under certain circumstances, a court may take judicial notice of its own record in other cases; however, when the record in another case forms an essential element of a party’s claim or defense, then the record itself must be introduced in evidence, absent an admission of its contents by the opposing party. Id. (quoting Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274, 279 (Mo.App.St.L.Dist.1935)); Meiners Co. v. Clayton Greens Nursing Ctr., Inc., 645 S.W.2d 722, 724 (Mo.App. E.D.1982). And under circumstances where a trial court, on its own motion, may take judicial notice of its records in another case, in the event that it does so, the court should disclose on the record the precise matters so considered. Pennick, 364 S.W.2d at 559.

The family court’s unified approach of one judge for one family may indeed call for greater use of judicial notice. But the record before us does not indicate that the judge took judicial notice of either Mother’s case file or the child’s. Nor was any evidence from Mother’s case proffered or admitted into evidence in the child’s hearing. Further, Mother’s attorney expressly articulated the need for a clear record in each of the two cases during the adjudication hearing on the child’s case. Therefore, we largely deny the juvenile officer’s motion to supplement the legal file with materials outside the record in the child’s case. We grant the motion only with regard to those documents that were admitted into evidence at the child’s January 15, 2010 hearing, specifically, the guardian ad litem’s exhibit 1 and the juvenile officer’s exhibits 1 and 2.

We now turn to the ultimate question in this appeal: whether sufficient evidence supported the family court’s finding that Mother neglected her child, thus warranting the court’s taking jurisdiction over the child and removing him from Mother’s custody. Removal of a child from a parent’s custody implicates the fundamental right of parents to rear their children free from government interference. In re C.A.D., 995 S.W.2d 21, 27 (Mo.App. W.D.1999). A parent’s right to rear her child is a fundamental liberty interest protected by the Constitution’s guarantee of due process. In re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004). A parent’s liberty interest in the care, custody, and control of her child is perhaps the oldest of the fundamental liberty interests recognized by the U.S. Supreme Court. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)(plurality opinion). This interest does not evaporate simply because a parent has not been a model parent, or even because she has lost temporary custody of her child to the State. 160 S.W.3d at 372 (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)).

We review the court’s judgment wherein it found “a pattern of neglectful behavior,” took jurisdiction over the child, and awarded custody of the child to the Children’s Division. Our standard of review for decisions in juvenile proceedings is the same as for any court-tried civil case. C.A.D., 995 S.W.2d at 29. We shall affirm the trial court’s judgment unless there is no substantial evidence to support it, the decision is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In reviewing the sufficiency of the evidence, we consider the facts and all reasonable inferences in the light most favorable to the family court’s order. C.A.D., 995 S.W.2d at 29.

The juvenile officer’s petition, filed the day after the court ordered the child into protective custody, charged that Mother failed to provide necessary care and custody for the child because, from July 19, 2008 through September 20, 2009, Mother “established a continuous pattern of neglectful behavior toward the [child] on numerous occasions, placing the [child] at risk of harm.” The juvenile officer amended the petition to add that Mother’s pattern of neglectful behavior included the following: (a) Mother left her court-ordered placement with the child, without permission, from approximately October 9 through October 12, 2009, and their whereabouts were unknown to the Children’s Division; (b) Mother failed to properly supervise the child on several occasions; and (c) Mother left her court-ordered placement with the child, without permission, from approximately July 18 through July 20, 2008, and their whereabouts were unknown to the Children’s Division.

The trial court found by “clear, cogent and convincing evidence” that the amended allegations of the petition were true, except for those alleging Mother’s failure to supervise the child. The court expressly found no evidence related to the allegations regarding failure to supervise. The family court took jurisdiction over the child, and placed him in the custody of the Children’s Division for suitable foster-care placement.

Section 211.031.1 RSMo. (Supp. 2009) provides that:

[T]he juvenile court or the family court ... shall have exclusive original jurisdiction in proceedings:
(1) Involving any child ... who is alleged to be in need of care and treatment because:
(a) The parents ... neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary for his or her well-being; ...
(b) The child ... is otherwise without proper care, custody or support; ...

To assert jurisdiction under section 211.031.1(1), the juvenile or family court must find clear and convincing evidence that the child needs care because the parent has neglected to provide the care necessary for the child’s well-being. In re G.C., 50 S.W.3d 408, 410 (Mo.App. E.D.2001). “[E]vidence is clear and convincing when it ‘instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder’s mind is left with an abiding conviction that the evidence is true.’ ” Id. at 419 (Teitelman, J., concurring)(quoting In re T.S., 925 S.W.2d 486, 488 (Mo.App. E.D.1996)). Furthermore, “substantial evidence,” as used in Murphy v. Carron, means clear, cogent, and convincing evidence when that standard of proof applies. Id. (Teitelman, J., concurring)(quoting In re O’Brien, 600 S.W.2d 695, 698 (Mo.App. W.D.1980)).

Section 210.110(12) RSMo. (Supp.2009) defines “neglect” as the “failure to provide, by those responsible for the care, custody, and control of the child, the proper or necessary support, education as required by law, nutrition or medical, surgical, or any other care necessary for the child’s well-being[.]” Thus, the juvenile officer had the burden to prove by clear and convincing evidence that Mother failed to provide care necessary for her child’s well-being. The juvenile officer failed to meet this burden.

Five witnesses testified at the adjudication and disposition hearing: Mother’s therapist; a house parent with Mother’s residential placement; the house supervisor with Mother’s residential placement; Mother’s ease manager; and a deputy juvenile officer. The first three witnesses testified that they had not observed any interactions between Mother and the child that gave them reasonable cause to suspect child abuse or neglect. Multiple witnesses testified that Mother loved the child, and that Mother and the child had bonded, had a good relationship, and were close.

The therapist in Mother’s case testified that she saw Mother from December 2008 to October 2009. The therapist’s primary role was to work with Mother and her mother, the child’s maternal grandmother, on the issues that brought Mother into foster care. The therapist testified that “[tjhere were issues [with Mother’s parenting] but not in my personal opinion of being a mandated reporter that would require a hotline” report prior to the October 2009 hearing, when the court removed the child from Mother’s custody. Initially, the therapist testified that Mother said she left her placement in the middle of the night to be with a hospitalized friend, and that she was not with the maternal grandmother. Later, however, the therapist testified that Mother was vague about where she had been and with whom. The therapist was unable to ascertain anything further about the whereabouts of Mother and the child, except “when she was with her mother, which I can verify.”

A house parent with Almost Home Teen Shelter — the home where Mother and her child lived — then testified. The house parent stated that she read that Mother had left with the child at midnight, and was gone the entire weekend, but the house parent did not observe this personally. She testified that she had no concerns about the child having suffered injury or about his well-being when Mother returned from her unauthorized absence with the child. The house parent stated that Mother told her that Mother and the child visited Mother’s “guy friends” and the maternal grandmother.

The house supervisor with Almost Home testified briefly about Mother’s use of inappropriate language and failure to supervise the child in accordance with Almost Home rules.

Mother’s foster-care case manager with Good Shepherd, an agency that contracts with the Children’s Division for foster-care services, also testified. She had been Mother’s case manager since July 2008. The case manager explained that the “main issue” concerning Mother’s parenting while she lived at Almost Home “was when she left her eourt[-]ordered placement on October 12th for two days with [the child].” The case manager stated she was informed that Mother had “left at midnight with a car full of men. She did not sign out and nobody knew where she was.” According to the case manager, when questioned about her whereabouts, Mother replied that the child was with her and was fine, and that she had stayed with friends during her absence from Almost Home. She stated that Mother refused to provide more details.

The case manager went on to explain that she was upset with Mother for failing to comply with the court order in her own case. On cross-examination, the case manager confirmed that it was hoped that the child’s removal would motivate Mother to do what she needed to do.

Q. That is [the child] being removed from [Mother’s] custody, the hope was that she would start doing what she needed to do?
A. Correct.

And later on redirect:

Q. What was the precipitating event that caused [the child] to be removed from [Mother’s] custody?
A. Just her not making progress with her own case. And it was ordered that [the child] come into protective custody.
Q. And up to that time, you had not taken any steps to remove [the child] from [Mother’s] custody?
A. Correct.

The juvenile officer proffered a report prepared by the case manager, and the family court admitted it into evidence. The report states that “[Mother] has not completed any of her services in her own case including GED, employment, therapy, and following the rules of her placement. She has displayed this pattern of behavior the past few months that led to the trial court ordering Protective Custody over [the child] at [Mother’s] court hearing on 10-20-09.”

Finally, a deputy juvenile officer testified. She stated Mother had told her that, while Mother was away from her placement in July 2008, Mother left the child for one night in the care of a female friend who has children. The deputy juvenile officer confirmed that neither the Children’s Division nor the juvenile officer would have “approved” the place where Mother left the child in July 2008. On cross-examination, she confirmed that at the time Mother left her placement in July 2008, the child was neither in care nor under any court order, and that the rules applied to Mother.

After hearing the evidence, the court expressly found that the allegations concerning Mother’s failure to supervise the child were not proved. The court found that the other two allegations were true in that Mother left her placement with the child without permission in July 2008 and October 2009. The court then stated:

But the bottom line is, the evidence that I’ve heard really boils down to whether or not paragraph A [the October 2009 absence] and paragraph C [the July 2008 absence] alone are enough to establish a pattern of neglectful behavior. I believe that even though we’re not talking about the fact that [the child] was ordered to be in Almost Home, and that there was a court order that directed [Mjother in that regard to do anything as it relates to her child, the fact that on two different occasions that [Mother] left both of these placements, at least according to the evidence that I’ve heard up to this point, that because of the fact that [Mother] left these placements without telling anybody where she was, without letting anybody know where this child was, is a pattern of neglectful behavior that I believe has been established.

Emphases added.

We are mindful of our standard of review to consider the evidence and all reasonable inferences in the light most favorable to the judgment, and to give due regard to the opportunity of the family court to judge the witnesses’ credibility. The family court, however, made clear that it relied only on Mother’s two unauthorized absences from her own foster-care placement, wherein she took her child with her, to find that Mother neglected her child. This is not evidence of neglect. Furthermore, the court expressly found that the allegations that Mother failed to supervise her child were not proved. The statute requires a deprivation of care necessary for the child’s well-being. Section 210.110(12) RSMo. (Supp.2009). We have considered all of the incidents and circumstances to which the witnesses testified and the exhibits admitted into evidence. We can find no deprivation of care. Because we find no evidence of neglect, we need not consider whether evidence of two incidents occurring fifteen months apart could constitute clear and convincing evidence of a pattern of neglect.

We reverse the family court’s judgment and remand the cause, ordering that J.M. be returned to Mother’s custody.

SHERRI B. SULLIVAN, P.J., and CLIFFORD H. AHRENS, J., concur.

      . The juvenile officer also seeks to supplement the legal file with duplicates of these same documents from Mother’s case that were attached to reports prepared by the juvenile officer and filed with the court in the child’s case, but these documents were not admitted into evidence in the child’s case.

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

      . Likewise, we need not consider the lawfulness of the court’s original taking of the child into protective custody and the asserted violations of Mother’s rights to due process of law. Given our resolution of the appeal, these issues are moot.


text:
    Orlando JONES, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 94554.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 28, 2010.
    Timothy Forneris, Assistant Public Defender, St. Louis, MO, for appellant.
    Chris Foster, Attorney General, James B. Farnsworth, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Movant, Orlando Jones, appeals from the judgment denying his motion for post-conviction relief under Rule 24.035 without an evidentiary hearing. The findings and conclusions of the motion court are not clearly erroneous, and an extended opinion would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision and affirming the judgment pursuant to Rule 84.16(b).


author: KURT S. ODENWALD, Presiding Judge.

text:
    MARTHA’S HANDS, LLC, Appellant, v. Steven ROTHMAN, Respondent.
    No. ED 94341.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 28, 2010.

      Michael D. Quinlan, Quinlan Law Firm, St. Louis, MO, for Appellant.
    William Higley, The Higley Law Group, LLC, St. Louis, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Steven Rothman (Steven) signed an agreement with Martha’s Hands, LLC (Martha’s Hands) for provision of home health care services for his father, Ronald Rothman (Ronald). After Ronald’s death, Steven and his sister Robin Prywitch (Robin), paid two-thirds of the outstanding balance due Martha’s Hands for its services. Although one-third of the balance remained unpaid, Steven and Robin claimed this portion of the bill was the responsibility of their half-sister, Courtney Rothman (Courtney). Martha’s Hands filed suit against Steven alleging breach of contract, seeking payment for the one-third remaining balance, interest accrued on the balance, litigation costs, and attorney’s fees. Shortly prior to trial Courtney paid the remaining one-third of the balance, and the case proceeded to a bench trial on the issues of interest, costs, and attorney’s fees. The trial court ruled in favor of Steven, and against Martha’s Hands. Martha’s Hands appeals, claiming the trial court’s rulings are against the weight of the evidence. We reverse the trial court’s ruling on the denial of a portion of the interest sought by Martha’s Hands and the denial of costs and attorney’s fees. We remand to the trial court for a determination of the amount of costs and attorney’s fees and for a determination of liability under Steven’s third-party claim against Courtney. We affirm as to the trial court’s denial of a portion of the interest sought by Martha’s Hands.

Background

The following facts, unless otherwise noted, were not disputed at trial. Martha’s Hands entered into a Private Duty Home Health Services Agreement (the Agreement) whereby Martha’s Hands was to provide private duty health care services to Ronald. While Steven disputes he was a party to the Agreement, Steven was named as, and signed as, “Responsible Party” on the Agreement. Steven also was named as the “Person Responsible for Bill” on the client payment information portion of the Agreement, and also signed that form as the “Responsible Party.”

The client payment information form executed with the Agreement provided that:

A delinquent charge of 1½ % per month will be charged on all overdue accounts. Services may be terminated if account is more than 30 days past due. If this account is collected by a collection agency or an attorney by suit or otherwise, the undersigned below agrees to pay all collection and attorney’s fees.

Martha’s Hands provided home health care services for Ronald until his death on September 5, 2007. After Ronald’s death, Steven contacted Martha’s Hands to obtain a bill for the amount owed.

As of November 1, 2007, Martha’s Hands was owed $27,597.28 for services provided to Ronald. On November 2, 2007, Martha’s Hands received two separate checks for $9,199.09 each, one check from Steven and one check from his sister Robin. These payments satisfied two-thirds of the amount owed, leaving a $9,199.10 outstanding balance. Steven and Robin contended the remaining balance was the responsibility of their half-sister, Courtney.

In order to collect the remaining $9,199.10 balance, Martha’s Hands filed suit in January 2009, against Steven, as the responsible party to the Agreement. In its petition, Martha’s Hands sought to recover as damages the balance due, plus interest, costs of collection, and attorney’s fees. Steven filed a counterclaim against Martha’s Hands, listing several allegations of misconduct by employees of Martha’s Hands. Steven also filed a third-party petition against Courtney, seeking contribution and indemnification.

On November 29, 2009, just days before trial, Courtney delivered a check for the remaining balance to Martha’s Hands. Courtney then moved for a continuance of the December 2nd trial date. The continuance was granted and the trial was reset for January 4, 2010.

At the January 4, 2010 bench trial, the remaining issues left to be resolved by the trial court were liability for interest, costs, and attorney’s fees. Martha’s Hands presented evidence from Steven and Andrew Huber (Huber), general manager of Martha’s Hands. The trial court also heard evidence regarding Steven’s counterclaim against Martha’s Hands and his third-party petition against Courtney. At the close of Steven’s evidence in his counterclaim, Martha’s Hands moved for a dismissal of the counterclaim, which the trial court granted.

The trial court entered the following judgment on January 28, 2010:

The Court finds [Martha’s Hands] has not proven by a preponderance of the evidence the allegations in the petition with regards to the accrual of interest. At the time of trial the parties agreed the principal sum contained in the petition had been paid to [Martha’s Hands]. At the time of trial the only monetary amounts in controversy under the petition were the accrual of interest, court costs and attorney’s fees. Therefore, the Court enters its judgment in favor of [Steven] and against [Martha’s Hands].

In its judgment, the trial court also noted that it did not reach the issue of Steven’s third-party claim because the trial court did not find Steven liable for any damages. The tidal court also reaffirmed the dismissal of Steven’s counterclaim and ordered the parties responsible for their own attorney’s fees and costs.

Martha’s Hands filed a Notice of Appeal and this appeal follows.

Points on Appeal

Martha’s Hands presents three points on appeal. In its first point, Martha’s Hands claims the trial court erred in failing to enter judgment in its favor on its breach of contract claim. Second, Martha’s Hands alleges the trial court erred in finding that it failed to prove its interest damages. Third, Martha’s Hands claims the trial court erred in failing to award it damages for collection expenses and attorney’s fees.

Standard of Review

We review the trial court’s judgment under the well-established principles set forth by the Missouri Supreme Court in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). According to Murphy, an appellate court will sustain the judgment of the trial court, unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. “Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Id.

Discussion

As an initial matter, the trial court’s judgment here presents a special challenge on appeal as it contains no specific findings of fact or conclusions of law. Instead, the trial court simply stated that Martha’s Hands failed to prove its allegations regarding interest by a preponderance of the evidence, and then entered judgment in favor of Steven. The judgment fails to specifically address Martha’s Hands’s claim for breach of contract or its contract-based demand for costs and attorney’s fees. While this simjole judgment is legally permissible, it makes review especially challenging.

Typically on appellate review, this Court defers to the trial court’s specific findings of fact, however here the trial court did not enter any findings of fact. In bench tried cases such as this, Rule 73.01 mandates that “[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” While we therefore review any factual issues in accordance with the trial court’s conclusion, a vast majority of the facts in this case were undisputed. See Delgado v. Mitchell, 55 S.W.3d 508, 512 (Mo.App. S.D.2001).

Our review of the record, viewing the facts in accordance with the trial court’s judgment, shows that a portion of the trial court’s ruling is clearly against the weight of the evidence. First, it is clear from the record that any judgment denying Martha’s Hands’s claim for breach of contract or its demand for costs and attorney’s fees is against the weight of the evidence. In addition, the trial court’s ruling on Martha’s Hands’s claims for interest owed under the Agreement is also against the weight of the evidence with regard to one of the claims. While evidence supports the trial court’s denial of one of Martha Hands’s claims for interest, a separate undisputed calculation of interest owed to Martha Hands was admitted into evidence, and thus the denial of this claim for interest was against the weight of the evidence.

I. Breach of Contract

In its initial point on appeal, Martha’s Hands claims the trial court erred in failing to enter judgment in its favor on its claim for breach of contract. In making this argument, Martha’s Hands alleges that Steven signed the Agreement as the “Responsible Party,” thereby agreeing “to pay all charges billed for services provided,” services were provided for which Steven failed to pay, and Martha’s Hands suffered damages accordingly. Our review of the record shows these allegations are supported by undisputed evidence. Accordingly, the trial court’s judgment is against the weight of the evidence on the claim for breach of contract.

The essential elements of a breach of contract action include: (1) the existence and terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the contract; (3) breach of the contract by the defendant; and (4) damages suffered by the plaintiff. Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. banc 2010). The undisputed evidence presented at trial supports each of these elements.

Evidence of the existence and terms of the Agreement was presented both by admission of the Agreement into evidence and through Steven’s testimony. The written Agreement was entered into evidence as “Plaintiffs Exhibit 1.” The Agreement contained Steven’s signature above the line for “Signature of Responsible Party.” Also, “Steven Rothman/son” was written above the line for “Print Name of Responsible Party/Relationship.” The third page of the Agreement contained client payment information which listed Steven as the “Person Responsible for Bill” and where Steven signed as “Signature of Responsible Party.” The Agreement contained the entire terms of the contract. In addition to the written Agreement that was admitted into evidence at trial, Steven testified at trial that he contracted with Martha’s Hands, although he alleged he entered into the Agreement along with his father. Steven acknowledged at trial that he signed in all the places on the Agreement where his signature was located. Although Steven claims to have signed the Agreement on behalf of his father, the terms of the Agreement are unambiguous and clear. Nowhere on the face of the Agreement does Steven indicate that he is signing the Agreement “for” Ronald or otherwise indicate he is not the responsible party. To the contrary, Steven knowingly signed his name as the “Responsible Party.” The undisputed evidence presented at trial established the existence and terms of the contract.

The second element, that Martha’s Hands performed pursuant to the contact, was also undisputed at trial. Steven testified at trial that Martha’s Hands provided services to him and his father. Steven did not dispute that Martha’s Hands was owed approximately $27,600 under the Agreement after his father’s death. Steven also confirmed that he was not disputing that the services reflected in the invoices billed to Steven were provided by Martha’s Hands.

Regarding the third element, breach of contract by the defendant, the evidence was undisputed that at least one-third of the amount owed to Martha’s Hands under the Agreement was not paid until November 29, 2009, more than two years after Martha’s Hands billed Steven for the services provided. The evidence was undisputed that the substantial delay in payment for these services constituted a breach of the Agreement.

Finally, with regard to damages, evidence was presented that Martha’s Hands was not paid the total amount owed it until more than two years had passed from the date of Ronald’s death, or the last date of service. Important to our analysis of damages are the provisions of the Agreement that provide for interest to be charged on all overdue accounts, and for the payment of collection and attorney’s fees should the account be collected by an attorney, by suit or otherwise. Clear and undisputed evidence was presented at trial of these damages.

The undisputed evidence at trial established each of the four essential elements to prevail on a claim for breach of contract. The trial court’s ruling to the contrary is against the weight of the evidence. We therefore reverse the trial court’s judgment with regard to Martha’s Hands’s claim for breach of contract, and remand this issue to the trial court for the entry of a judgment in accordance with this opinion.

Martha’s Hand’s first point on appeal is granted.

II. Interest Calculations

In its second point on appeal, Martha’s Hands claims the trial court erred in finding that Martha’s Hands failed to prove its interest damages under the Agreement because this finding is against the weight of the evidence. Martha’s Hands argues that testimony regarding the amount of interest was introduced without objection, that no contrary evidence was adduced with regard to the interest, and that the undisputed evidence before the trial court was independently verifiable by mathematical calculations. We note from the record that Martha’s Hands introduced evidence of distinct calculations for two separate periods for which it is claiming interest. We agree that the trial court’s judgment was against the weight of the evidence with regard to one of Martha’s Hands’s claims of interest, but affirm the trial court’s ruling with regard to Martha’s Hands’s second claim of interest.

A party claiming damages for breach of contract bears the burden of proving the existence and amount of damages with reasonable certainty. Delgado, 55 S.W.3d at 512. Not only is proof required of actual facts presenting a basis for a rational estimate of damages, without resorting to speculation, but the cause of the damage must also be proven with reasonable certainty. Id.

Although the petition states only that Martha Hands seeks to recover interest on the amounts owed under the Agreement, the evidence at trial was not disputed that Martha’s Hands sought to recover interest for two distinct periods of time. At trial, Martha’s Hands presented evidence of two separate interest calculations. The “first interest” was calculated on the initial overdue balance of approximately $26, 597.28, two-thirds of which was paid by Steven and Robin on November 2, 2007. This interest was calculated from the date of the individual invoices for services provided through only November 1, 2007. The “second interest” for which Martha’s Hands sought recovery was interest on the remaining $9,199.10 balance from November 2, 2007 through November 29, 2009, when the final one-third of the principal was paid. We hold that the trial court did not err in denying recovery of the first interest. However, the trial court’s judgment denying the award of the second interest claim to Martha’s Hands was error as such judgment was clearly against the weight of the evidence.

A. “First Interest”

Martha’s Hands claims it is owed $1,132.66 in interest calculated on the full outstanding balance of $27,597.28 owed as of November 1, 2007. At trial, the testimony regarding this interest calculation was confusing, misleading, and at times incorrect. From the evidence introduced at trial, it is clear that the amount of interest owed to Martha’s Hands for this period of time was not proven with reasonable certainty. Accordingly, the evidence supports the trial court’s ruling that Martha’s Hands did not prove by a preponderance of the evidence the interest due under this calculation.

Huber testified at trial that the interest owed on the outstanding balance, prior to the payments made by Steven and Robin on November 2, 2007, was $1,132.66. Huber testified that he calculated the interest owed on this outstanding balance by looking at each of the eight invoices and calculating the interest from the date of the invoice to November 1, 2007. Huber testified that calculating interest in this manner would lead to the $1,132.66 figure. Several challenges to this calculation support the trial court’s denial of this portion of Martha’s Hands’s interest claim.

First, Huber testified that interest was calculated based on the $27,597.28 past due amount reflected in the invoices. However, the invoices presented by Martha’s Hands and Huber do not add up to $27,597.28, but instead reflect a total of $46,748.36 in past due invoices. This discrepancy in the outstanding amount owed leads to confusion and inconsistency with regard to this interest calculation. No explanation was presented at trial through either Huber or any other witness for Martha’s Hands to explain this discrepancy. Huber’s testimony that the outstanding amount of $27,597.28 was obtained from the invoices is not supported by any substantial evidence or the record.

Second, calculating the interest in the manner described by Huber at trial does not result in the interest amount claimed by Martha’s Hands. Huber testified that the interest was calculated based on the invoices alone. However, performing the calculations as Huber testified does not result in an interest calculation of $1,132.66. We are left to speculate how Martha’s Hands determined the amount of interest owed, something we will not do. The “first interest” alleged by Huber and Martha’s Hands is not verifiable by the evidence presented by Martha’s Hands at trial because Huber’s testimony that the $1,132.66 interest due was calculated based on the invoices is simply not supported by the record.

Significant confusion exists as to the manner in which Martha’s Hands calculated the interest owed on the outstanding balance up to November 2, 2007. We hold that the trial court’s ruling was supported by the record and not against the weight of the evidence with regard to the “first interest” claimed by Martha’s Hands. Martha’s Hands’s second point on appeal is denied, and the trial court’s judgment affirmed as to the claim for “first interest” in the amount of $1,132.66.

B. Second Interest

On the other hand, the evidence presented by Martha’s Hands at trial as to the calculation of interest on the outstanding balance from November 2, 2007 through November 29, 2009, was clear and unequivocal. The undisputed evidence admitted at trial proved that Martha’s Hands was owed $3,449.67 in interest on the remaining $9,199.10 balance under the Agreement.

Huber testified at trial that Steven owed $3,449.67 in interest on the outstanding balance of $9,199.10. This interest claim was calculated from November 1, 2007, when the first two-thirds payments were received from Steven and Robin, until November 29, 2009, when the remaining balance was paid. Interest was calculated on the outstanding balance, and continued to accrue interest at the rate of 1½ percent per month for twenty-five months.

Steven does not dispute that a $9,199.10 balance was owed to Martha’s Hands as of November 1, 2007 under the Agreement. Nor does Steven dispute that this balance remained unpaid until November 29, 2009. Martha’s Hands presented evidence of a straightforward interest calculation to the trial court, by simply taking the amount owed ($9,199.10), multiplied by the months past due (25), multiplied by the monthly interest rate (1 ½%). This simple mathematical calculation results in an interest amount due of $3,449.67.

Steven did not present any evidence to dispute, negate, or otherwise challenge any of the evidence with regard to this “second interest” claim. As such, the trial court’s finding that Martha’s Hands did not prove its claim for this “second interest” by a preponderance of the evidence is against the weight of the evidence. We reverse the trial court’s decision with regard to this “second interest” and hold that Roth-man is liable to Martha’s Hands under the Agreement for interest in the amount of $3,449.67.

Martha’s Hands second point is affirmed in part and reversed in part.

III. Costs and Attorneys Fees

In its third point on appeal, Martha’s Hands claims the trial court erred in failing to award it damages for collection costs and attorney’s fees. We agree and find that the trial court’s failure to award costs and attorney’s fees was against the weight of the evidence.

Huber testified at trial that Martha’s Hands incurred litigation expenses of a $424.50 deposition cost and $35 filing fee. Huber also testified that Martha’s Hands’s liability for attorney’s fees under the fee agreement with its attorney was one-third of the total recovery. Huber confirmed on cross-examination that Martha’s Hands was requesting as damages attorney’s fees based on one-third of $14,240.92, which is the total of the $9,199.10 remaining principal paid after filing of the lawsuit by an attorney, interest, deposition cost, and filing fee. No conflicting evidence was presented.

While typically a party to litigation is responsible for paying its own legal fees, an exception exists when a contract between the litigating parties provides for payment of attorney’s fees. Mihlfeld & Assoc. Inc. v. Bishop & Bishop, LLC, 295 S.W.3d 163, 174 (Mo.App. S.D.2009). “When a party requests attorney fees under a provision of a contract, the trial court must comply with the terms set forth in that contract.” Id.; see also Simpson v. Simpson, 295 S.W.3d 199, 210 (Mo.App. W.D.2009) (“If a contract provides for the payment of attorney’s fees in the enforcement of a contract provision, the trial court must award them to the prevailing party.” (internal quotations and citations omitted)). “Although the trial court may use its discretion to determine the amount to award in attorney fees, where a party is found to have breached the contract, the contractual provision for attorney fee requires the award of attorney fees.” Mihlfeld & Assoc., Inc., 295 S.W.3d at 174. “An award in some amount is required by the contract as a matter of law and is not a matter within the trial court’s discretion.” Id.

The Agreement signed by Steven expressly provides for attorney fees. The client payment information page of the Agreement stated that, “If this account is collected by a collection agent or an attorney by suit or otherwise, the undersigned below agrees to pay all collection and attorney fees.” Steven signed on the line for “Signature of Responsible Party,” below the attorney fee language.

It was undisputed at trial that $9,199.10 remained due and owing to Martha’s Hands under the Agreement as of January 2009, the date Martha’s Hands filed suit. Steven does not dispute that this amount continued to be unpaid until November 29, 2009, more than ten months after the lawsuit was filed. While the outstanding balance may not have been paid pursuant to an award or judgment, or as part of a court order, the overwhelming weight of the evidence in the record before us clearly shows that the outstanding balance owed to Martha’s Hands was collected by “an attorney by suit or otherwise.” Thus, according to the express provisions of the Agreement, Martha’s Hands is owed “all collection and attorney fees.”

The trial court’s failure to make a specific finding with regard to Martha’s Hands’s demand for attorney’s fees, and its judgment finding both parties responsible for their own costs and fees is against the weight of the evidence. This Court therefore reverses the trial eoui't’s findings with regard to an award of costs and attorney’s fees and remands this matter to the trial court for a determination of those amounts.

IV. Steven’s Claims

Steven did not file a separate notice of appeal with this Court, but he presents additional claims in his brief that are not responsive to the appeal brought by Martha’s Hands. Generally, when only one party appeals from a judgment, review is limited to the contentions made by him, and allegations of error raised by the respondent will not be considered. Parker v. Bruner, 692 S.W.2d 379, 383 (Mo.App. S.D.1985). As Steven failed to present these issues in a cross-appeal, we do not address them here.

Conclusion

The judgment of the trial court is affirmed with regard to the denial of recovery for Martha’s Hands for the “first interest.” We reverse the trial court’s judgment denying Martha’s Hands’s claim for breach of contract, denying Martha’s Hands’s claim for the “second interest,” and denying Martha’s Hands’s recovery of costs and attorney’s fees. We remand this matter to the trial court for a determination of the amount owed by Steven to Martha’s Hands for costs and attorneys fees and for the entry of orders consistent with this opinion.

Because Steven alleges Courtney is liable to him for damages assessed against him under the Agreement by virtue of his third-party claim, we further remand this claim to the trial court for a determination of Courtney’s liability to Steven for damages under Steven’s third-party claim.

ROBERT G. DOWD, JR., and NANNETTE A. BAKER, JJ., Concur.

      . Meaning no disrespect to the parties, we refer to the Rothmans by their first names for simplicity and to avoid unnecessary confusion.

      . While this calculation of interest (principal x months x interest rate) was presented by Huber, this calculation is only used for non-compounding, or simple, interest. Had Martha's Hands wished to claim compounding interest on the principal, this calculation would be incorrect, resulting in an underpayment to Martha’s Hands. Because this mathematical calculation results in a lower amount payable to Martha's Hands, we will accept the calculation presented by Martha's Hands.


author: NANNETTE A. BAKER, Judge.

text:
    ST. LOUIS COUNTY, Respondent, v. Sandra HIMES, Appellant.
    No. ED 94374.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 28, 2010.

      Sandra Himes, St. Louis, MO, pro se.
    Victor Melenbrink, Clayton, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Introduction

Sandra Himes (“Appellant”) was convicted in the St. Louis County Circuit Court, Municipal Division, of violating Section 607.140 of St. Louis County Revised Ordinances for failing to have an agreement in effect with a waste collection service for the collection of waste generated at her home. Appellant claims the trial court erred in finding her in violation of Section 607.140 because she had an agreement in effect with General Gasket Corporation (“GGC”). The agreement with GGC allowed Appellant to dispose of waste generated at her home by taking it to GGC, which had an agreement with a waste collection service. Appellant also claims the trial court erred in not finding that she complied with Section 607.140 by complying with Section 607.100 and Section 607.120. We affirm.

Factual and Procedural History

On May 29, 2009, Appellant was issued a citation for violating Section 607.140 of St. Louis County Revised Ordinances. Section 607.140 provides:

If waste collection service is reasonably available for a premise where waste is generated, an agreement shall be in effect for the collection of waste generated on the premises with a waste collection service having waste collection vehicles licensed by the Director for the collection, transportation, and disposal of waste. It shall be the responsibility of the property owner and the person generating the waste to assure that an agreement for the collection of waste is in effect.

Appellant is the owner and a resident of the property located at 9572 General Lee Drive. Allied Waste is the only waste collection service licensed by St. Louis County to provide waste collection services to Appellant’s residence. When she received the citation, Appellant did not have an agreement with Allied Waste for the collection, transportation, and disposal of waste generated at her home.

At some point before May 29, 2009, Appellant entered into an agreement with GGC which allowed her to deposit waste generated at her residence into the waste container located on the premises of GGC. GGC had a valid agreement with a waste collection service for the collection of the waste in that container. Appellant produced copies of both agreements at trial.

After a bench trial, Appellant was found to be in violation of Section 607.140. In its decision, the trial court did not issue any findings of fact or conclusions of law. Appellant was fined $50 and costs. This pro se appeal follows.

Standard of Review

Appellant alleges the trial court erred in its interpretation and application of Section 607.140. Statutory interpretation is an issue of law; therefore, no deference is due to the trial court’s judgment and we review the issue de novo. Bolt v. Giordano, 310 S.W.3d 237, 242 (Mo.App. E.D.2010). See also White v. Tariq, 299 S.W.3d 1, 3 (Mo.App. E.D.2009) (Matters of statutory interpretation and whether a statute applies to a given set of facts are reviewed de novo).

Discussion

Appellant raises nine points in this appeal, most of which fail to substantially comply with the briefing requirements set forth in Rule 84.04. Although Appellant is a pro se litigant, she is held to the same standards as attorneys and must comply with the Supreme Court’s procedural rules. Manning v. Wal-Mart Associates, 284 S.W.3d 678, 680 (Mo.App. S.D.2009). Despite Appellant’s failure to adhere to the briefing requirements, we will review her claim for the two issues which we are able to glean from her brief.

In the first point we can discern from Appellant’s brief, Appellant appears to claim the trial court erred in interpreting Section 607.140 because it found that Appellant did not satisfy Section 607.140 when she entered into an agreement with GGC. Under the agreement, Appellant was allowed to deposit waste generated at her residence into GGC’s waste container for collection by a waste collection service, pursuant to an agreement between GGC and a waste collection service. The Court found that this was a violation of Section 607.140.

The primary rule of statutory interpretation is to give effect to the legislative intent as reflected in the plain language of the statute at issue. Parktown Imports, Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 673 (Mo. banc 2009). “When the language of a statute is clear, we presume the legislature intended what it plainly and unambiguously said.” Michel v. Michel, 94 S.W.3d 485, 488 (Mo.App. S.D.2003). See also MC Dev. Co., LLC v. Central R-3 School Dist. of St. Francois County., 299 S.W.3d 600, 605 n. 2 (Mo.2009) (If a statute is clear, there is no need to apply any rules of statutory construction).

Section 607.140 is clear in what it requires. Where waste collection service is reasonably available, (1) an agreement shall be in effect for the collection of waste generated on the premises; (2) the agreement must be with a waste collection service having waste collection vehicles licensed by the Director for the collection, transportation, and disposal of waste; and (3)the property owner and the person generating the waste are responsible for assuring an agreement is in effect.

It is undisputed that Appellant is the owner and a resident of a home located in an area where waste collection service was reasonably available. Therefore, it was Appellant’s responsibility to have an agreement in effect for the collection of waste generated on the premises and that agreement should have been with a waste collection service. Appellant is correct in her assertion that Section 607.140 does not require her, personally, to be a party to an agreement with a waste collection service, however, Section 607.140 does require Appellant to assure that an agreement with a waste collection service is in effect for the collection of waste generated at her home. On May 29, 2009, there was no such agreement in effect.

Appellant did have an agreement in effect regarding the disposal of waste generated at her premises, but that agreement was with GGC and GGC is not a waste collection service. Therefore, Appellant’s agreement with GGC does not satisfy the plain and unambiguous language of Section 607.140 and the trial court did not err in finding that Appellant was in violation of Section 607.140. Appellant’s first point is denied.

In Appellant’s second discernible point, she claims the trial court erred in not finding that she complied with Section 607.140 by complying with Section 607.100 and/or Section 607.120. We disagree.

In arguing that Section 607.140 is satisfied through compliance with Section 607.100 or Section 607.120, Appellant essentially asks this court to find that Section 607.100 and Section 607.120 create an exception to the requirement set forth in Section 607.140. We find nothing in the ordinance that warrants such a finding.

Section 607.100 provides:

Waste Not to Be Deposited in Unauthorized Container. — No person shall deposit waste in any waste container other than a waste container on the premises where the waste is generated without the consent of the owner of such waste container.

Section 607.120 provides in pertinent part:

Placement of Waste Containers and Bulky Non-Containerized Waste. — 1. Residential waste and/or recovered material containers and bulky/non-containerized waste shall be stored upon the premises where the waste was generated, unless written permission for the storage on other premises is obtained from a person having authority to grant such permission.

Section 607.100, as indicated by its title, pertains only to the unauthorized placement of waste into a container owned by someone other than the person placing waste into the container. This section requires a person to obtain the permission of the owner of a waste container before depositing waste into that container; it does not relieve a person of the obligation set forth in Section 607.140.

Section 607.120, as indicated by its title, pertains to the placement of waste containers and bulky non-containerized waste. This section requires a person to store a waste container or bulky non-containerized waste on the premises where the waste is generated, unless permission is obtained to allow the container or bulky non-containerized waste to be stored on other premises. This section does not relieve a person from the obligation set forth in Section 607.140.

Section 607.140 is clear in its requirements and neither Section 607.100 nor Section 607.120 contains language creating an exception to the requirement of Section 607.140. We will not “engraft on the [ordinance] an exception which does not appear in explicit words or by implication from other language in the [ordinance].” Rohner v. Long, 57 S.W.3d 920, 923 (Mo.App. S.D.2001). In Rohner, the Southern District found that the statute at issue in that case provided “a bright line, mandatory rule and [made] no distinction” in its requirements. Id. The court noted that “[t]he legislature could easily have made an exception” to the requirements of the statute and since no such exception was made, the court presumed the legislature meant only what it said. Id.

In the present case, Section 607.140 creates “a bright line, mandatory rule” and neither Section 607.100 nor Section 607.120 makes a distinction or exception to the requirements of Section 607.140. Id. The Council could have easily made an exception to Section 607.140, however, it did not; therefore we will presume the Council meant only what it said. Id. This Court cannot supply that which the Council has, either deliberately, or inadvertently, or through lack of foresight, omitted from the controlling ordinance. St. Louis Police Officers Ass’n v. Board of Police Com’rs of City of St. Louis, 259 S.W.3d 526, 530 (Mo. banc 2008). To hold that Section 607.100 or Section 607.120 creates an exception to the requirements of Section 607.140 would require this court to add words that do not exist in the ordinance. Id. This, we decline to do.

Accordingly, we find the trial court did not err in finding Appellant in violation of Section 607.140 because Appellant did not assure that an agreement was in effect with a waste collection service for the collection of waste generated at her residence and because neither Section 607.100 nor Section 607.120 provides an exception to the requirements of Section 607.140.

Conclusion

For the above stated reasons, the judgment of the trial court is affirmed.

ROBERT G. DOWD, JR., J., and GLENN A. NORTON, J., concur.

      . All statutory references are to St. Louis County Revised Ordinances (2007)

      . The agreement between Appellant and GGC is not dated. However, Respondent does not contest that the agreement was in effect before May 29, 2009.

      . All rule references are to Mo. Sup.Ct. R. (2010), unless otherwise indicated.