author: MARK D. PFEIFFER, Judge.

text:
    Emily WEST and William Grant, Appellants, v. SHARP BONDING AGENCY, INC., Seneca Insurance Company, Inc., and Bail USA, Inc., Respondents.
    Nos. WD 71651, WD 72434.
    Missouri Court of Appeals, Western District.
    Nov. 2, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2010.

      Steve Garner and Jeff Bauer, Springfield, MO, and Daniel W. Craig, Kansas City, MO, for Appellants.
    Michael P. Healy and Michael J. 'Fleming, Kansas City, MO, for Respondent Sharp Bonding Agency, Inc.
    Patrick K. McMonigle and Molly Barta-los, Kansas City, MO, and Richard Morgan, Miami, FL, for Respondents Seneca Insurance Co., Inc., and Bail USA, Inc.
    Before Division I: JAMES M. SMART, JR., Presiding Judge, and MARK D. PFEIFFER and CYNTHIA L. MARTIN, Judges.
   MARK D. PFEIFFER, Judge.

Appellants, Emily West and William Grant (West and Grant), appeal the Circuit Court of Jackson County’s (“trial court”) judgment granting summary judgment in favor of Respondents, Seneca Insurance Company, Inc. (“Seneca”), Bail USA, Inc. (“Bail USA”), and Sharp Bonding Agency, Inc. (“Sharp Bonding”). The trial court granted summary judgment after finding no agency relationship existed between Seneca/Bail USA and Sharp Bonding regarding the facts of this case, thereby preventing vicarious liability from imputing to Seneca/Bail USA with respect to the conduct of Sharp Bonding. On appeal, West and Grant argue that the trial court erred in granting summary judgment because sufficient evidence was introduced to create a genuine issue of material fact as to whether an agency relationship existed between Seneca/Bail USA and Sharp Bonding on the facts of this case. We agree and therefore reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

The underlying claim at issue involves the tragic death of Tamar Grant. On June 13, 2002, Sharp Bonding employed Michael Iiams, Michael Raymond, and Raymond Brooks, (“the bounty hunters”) to apprehend Anthony West, Tamar’s brother, for failure to appear for a municipal traffic ticket. The bounty hunters went to the home of Emily West, Anthony and Ta-mar’s mother, to recover Anthony. During the confrontation, the bounty hunters suffocated and killed Tamar Grant.

On July 13, 2007, Emily West and William Grant, Tamar’s father, brought a wrongful death action against the bounty hunters, Carol Sharp in her individual capacity, Sharp Bonding, and Seneca/Bail USA. West and Grant claimed that Seneca/Bail USA was jointly and severally liable for the torts committed by the other defendants based on a principal-agent relationship between Seneca/Bail USA and Sharp Bonding. The referenced principal-agent relationship was created by a 1998 written contract titled “Bail Bond Agent Contract” (the “Bail Bond Agent Contract”) in which Seneca/Bail USA appointed Sharp Bonding as its agent for the purpose of soliciting and executing bail bonds in Kansas and Missouri.

On September 20, 2008, Sharp Bonding filed a motion for partial summary judgment on behalf of Seneca/Bail USA claiming that Sharp Bonding and its employees were not agents or partners of Seneca/Bail USA as it related to the facts of the case. Thereafter, Seneca/Bail USA filed a motion for summary judgment arguing that, under the facts of the case, no agency relationship existed between Sharp Bonding and Seneca/Bail USA, and therefore, Seneca/Bail USA could not be vicariously liable for any acts of Sharp Bonding’s employees that led to the death of Tamar Grant.

On September 2, 2009, after a hearing on the motions, the trial court granted summary judgment in favor of Seneca/Bail USA and partial summary judgment in favor of Sharp Bonding, finding no agency relationship existed between the two defendants regarding the underlying claim. West and Grant timely appealed.

Standard of Review

Our review of a grant of summary judgment is “essentially de novo.” ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially.” Id. “The propriety of summary judgment is purely an issue of law.” Id. “As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment.” Id.

When considering an appeal from the grant of summary judgment, we review the record in the light most favorable to the party against whom judgment was entered and “accord the non-movant the benefit of all reasonable inferences from the record.” Id. Accordingly, summary judgment will only be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 380; see also Rule 74.04(c).

In order to prove that a genuine issue exists, West and Grant must demonstrate that the record contains competent evidence of “two plausible, but contradictory, accounts of the essential facts.” ITT Commercial Fin. Corp., 854 S.W.2d at 382. Furthermore, “ ‘[i]f movant requires an inference to establish his right to judgment as a matter of law, and the [summary judgment record] reasonably supports any inference other than (or in addition to) the movant’s inference, a genuine dispute exists,’ and thus, the movant is not entitled to summary judgment.” Firestone v. Van-Holt, 186 S.W.3d 319, 323 (Mo.App. W.D.2005) (quoting ITT Commercial Fin. Corp., 854 S.W.2d at 382).

Analysis

Whether an agency relationship exists is generally a factual question for the jury. Johnson v. Bi-State Dev. Agency, 793 S.W.2d 864, 867 (Mo. banc 1990) (superseded on other grounds by statute, § 537.600, as recognized in State ex rel. Metropolitan St. Louis Sewer Dist. v. Sanders, 807 S.W.2d 87 (Mo. banc 1991)). However, “this relationship is a question of law for the court to determine when the material facts are not in dispute, and ‘only one reasonable conclusion can be drawn from the material facts.’ ” Ritter v. BJC Barnes Jewish Christian Health Sys., 987 S.W.2d 377, 384 (Mo.App. E.D.1999) (quoting Johnson, 793 S.W.2d at 867). Consequently, we must determine whether there is a genuine issue of material fact as to whether an agency relationship exists between Seneca/Bail USA and Sharp Bonding with regard to the underlying cause of action.

Agency

Common law agency is the fiduciary relationship resulting from “the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control.” State ex rel. Ford Motor Co. v. Bacon, 63 S.W.3d 641, 642 (Mo. banc 2002) (quoting from Restatement (Second) of Agency § 1 (1958)). However, “[a]n agency relationship may ... exist even where the parties did not intend to create the legal relationship or [intend] to subject themselves to the liabilities that the law imposes as a result.” Bach v. Winfield-Foley Fire Prot. Dist., 257 S.W.3d 605, 608 (Mo. banc 2008) (citing Leidy v. Taliaferro, 260 S.W.2d 504, 505 (Mo.1953)). Generally, all that is required to create an agency relationship is that: (1) the agent holds the power to alter legal relations between the principal and third parties; (2) the agent is a fiduciary with respect to matters within the scope of agency; and (3) the principal has the right to control the conduct of the agent with respect to matters entrusted to the agent. Ford Motor Co., 63 S.W.3d at 642; State ex rel. Elson v. Koehr, 856 S.W.2d 57, 60 (Mo. banc 1993); River’s Bend Red-E-Mix, Inc. v. Parade Park Homes, Inc., 919 S.W.2d 1, 4 (Mo.App. W.D.1996). Accordingly, the determinative issue for this court is whether a genuine issue of material fact exists as to whether Sharp Bonding’s issuance of the property bail bond, which ultimately led to the death of Tamar Grant, was within the scope and course of its agency relationship with Seneca/Bail USA.

Were this issue submitted to a jury, the jury would be instructed on common law agency via the use of Missouri Approved Instructions (“MAI”) 13.06. Not so coincidentally, MAI 13.06 states that acts are within the “scope and course of agency" if:

1. they [are] performed by [Sharp Bonding] to serve the business interests of [Seneca/Bail USA] according to an express or implied agreement • with [Seneca/Bail USA], and
2. [Seneca/Bail USA] either controlled or ha[s] the right to control the physical conduct of [Sharp Bonding].

MAI 13.06 [2002] (emphasis added).

While both elements of agency are in dispute, the primary controversy involves the right to control. West and Grant argue that the Bail Bond Agent Contract grants Seneca/Bail USA the right to control every aspect of Sharp Bonding’s business, and this right sufficiently establishes an agency relationship. In contrast, Sene-ea/Bail USA and Sharp Bonding argue no agency relationship exists because Seneca/Bail USA exercises no actual control over Sharp Bonding with regard to property bonds. The trial court agreed with Seneca/Bail USA and Sharp Bonding, finding no agency relationship existed because Seneca/Bail USA did not exercise actual control over Sharp Bonding’s property bond business.

To support their position, Seneca/Bail USA and Sharp Bonding primarily rely on two cases, which the trial court also relied upon: Ritter v. BJC Barnes Jewish Christian Health Systems, 987 S.W.2d 377 (Mo.App. E.D.1999), and Hefner v. Dausmann, 996 S.W.2d 660 (Mo.App. S.D.1999). Both Ritter and Hefner involved the issue of whether a parent medical corporate entity was liable for the allegedly negligent medical care provided to patients of its subsidiary medical corporate entity by its subsidiary medical corporate entity. Ritter, 987 S.W.2d at 384-87; Hefner, 996 S.W.2d at 664-67. Both of these cases reference control that is “actual, participatory and total” in the context of the type of control necessary to pierce the corporate veil between a parent corporation and its subsidiary, not common law agency. Ritter, 987 S.W.2d at 384-85; Hefner, 996 S.W.2d at 664-65. West and Grant, however, are not seeking to pierce the corporate veil between Sharp Bonding and Seneca/Bail USA; rather, West and Grant seek to establish vicarious liability based upon the right of control held by Seneca/Bail USA over Sharp Bonding under common law agency standards.

Seneca/Bail USA and Sharp Bonding have confused the standard for parent/subsidiary liability under the “actual, participatory and total control” standard for piercing the corporate veil with the standard for establishing common law agency. Here, the question presented is not one of piercing the corporate veil because Seneca/Bail USA and Sharp Bonding are not in the same corporate chain. Instead, Seneca/Bail USA and Sharp Bonding executed a contract appointing Sharp Bonding as Seneca/Bail USA’s exclusive agent. Accordingly, general agency principles must be applied.

Likewise, when the trial court expressly found that no agency relationship existed because Seneca/Bail USA exercised no actual control over Sharp Bonding, the trial court erroneously applied the law regarding the elements of common law agency. Under Missouri agency law, the right to control, rather than the actual exertion of control, is sufficient to permit vicarious liability to attach. Bach, 257 S.W.3d at 608; Hodges v. City of St. Louis, 217 S.W.3d 278, 282 (Mo. banc 2007) (Price, J., concurring in part) (the right to control is the “principal consideration” in determining whether an agency relationship exists); Bost v. Clark, 116 S.W.3d 667, 676 (Mo.App. W.D.2003) (the touchstone in establishing agency is whether the party sought to be held liable has the right to control the conduct of another); Ascoli v. Hinck, 256 S.W.3d 592, 594 (Mo.App. W.D.2008) (the party resisting summary judgment is not required to show actual control, but instead only the right to control).

Evidence of Agency Relationship

As mentioned above, because this is an appeal from a grant of summary judgment, we need not defer to the trial court’s findings. Accordingly, when considering whether Sharp Bonding’s acts were within its scope and course of agency with Seneca/Bail USA, we look to see whether Sharp Bonding issued the property bond in question to serve the business interests of Seneca/Bail USA according to an express or implied agreement and whether Seneca/Bail USA exercised actual control over or had the right to control Sharp Bonding’s property bond business. When viewing the facts in the light most favorable to West and Grant, we find that the record contains competent evidence of “two plausible, but contradictory, accounts of the essential facts,” establishing a genuine issue as to the existence of an agency relationship between Seneca/Bail USA and Sharp Bonding. This evidence includes, but is not limited to: (1) the express terms of the Bail Bond Agent Contract; (2) testimony as to the understanding of obligations under the Bail Bond Agent Contract; and (3) the actual conduct of Seneca/Bail USA and Sharp Bonding.

a. Bail Bond Agent Contract

While this is not a breach of contract case, nor even a dispute between the two parties to the contract, Seneea/Bail USA and Sharp Bonding, the Bail Bond Agent Contract is relevant to understanding the scope of the relationship between Seneca/Bail USA and Sharp Bonding. In review of the Bail Bond Agent Contract, we find that, consistent throughout the Bail Bond Agent Contract, the terms refer only to bonds or bail bonds. In pertinent part, the Bail Bond Agent Contract states:

[Seneca/Bail USA] appoints [Sharp Bonding] as an Agent of [Seneca/Bail USA] in the State of Kansas & Missouri for the sole purpose of soliciting and executing bail bonds .... [Sharp Bonding] shall solicit and execute bonds solely in the name of [Seneca/Bail USA] and in the state(s) designated. [Sharp Bonding] shall not solicit or execute bail bonds in the name of any other surety without prior written approval of [Seneca/Bail USA].

(Emphasis added.)

The Bail Bond Agent Contract does not differentiate between surety bonds and property bonds and, in fact, expressly prohibits Sharp Bonding from issuing bonds in the name of any surety besides Seneca/Bail USA without prior written approval of Seneca/Bail USA.

b. Testimony as to Understanding of Obligations

While the terms of the Bail Bond Agent Contract may be sufficient by themselves for a jury to reasonably conclude that Sharp Bonding is an agent of Seneca/Bail USA for all bail bonding purposes, a jury could reasonably conclude that the testimony of Sharp Bonding and Seneca/Bail USA’s representatives further support such a conclusion. In her deposition, Carol Sharp stated:

• Sharp Bonding never obtained written approval from Seneca/Bail USA which would have allowed Sharp Bonding to write bonds using another surety.
• “Anyone who writes a bond is a surety.”
• Seneca/Bail USA has “the right to control every aspect ” of Sharp Bonding’s business.

In her deposition, Cheryl Burns stated:

• Seneca/Bail USA never gave prior written approval for Sharp Bonding to write bail bonds for any other surety.
• Sharp Bonding gave up the right to control all aspects of its bonding business to Seneca/Bail USA.

c. Actual Conduct

The trial court found that Sharp Bonding and Seneca/Bail USA had “confirmed among themselves that property bonds were not subject to the [Bail Bond Agent Contract’s] provisions and all parties performed in a manner consistent with this interpretation of the agreement’s scope.” While this interpretation of the facts is relevant to the trial court’s conclusion that Seneca/Bail USA did not exercise actual authority over Sharp Bonding as it relates to property bonds, this interpretation (1) deprives the non-movant of the benefit of all reasonable inferences relating to the facts surrounding Seneca/Bail USA’s right to control Sharp Bonding; and (2) constitutes the trial court’s use of extrinsic evidence to interpret the meaning of the Bail Bond Agent Contract. We address these issues in reverse order.

Use of Extrinsic Evidence to Interpret the Bail Bond Agent Contract

Because the issue of whether an agency relationship exists so heavily relies on the Bail Bond Agent Contract, Seneca/Bail USA’s and Sharp Bonding’s understanding of it, and Seneca/Bail USA’s and Sharp Bonding’s actions under it, we briefly discuss the principles of contract interpretation and the trial court’s use of extrinsic evidence.

“‘The cardinal rule in the interpretation of a contract is to ascertain the intention of the parties and to give effect to that intention.’ ” Vest v. Kansas City Homes, L.L.C., 288 S.W.3d 304, 310 (Mo.App. W.D.2009) (quoting J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973)). The intent of the parties must be determined based on the contract alone unless the contract is ambiguous. Ethridge v. Tier-One Bank, 226 S.W.3d 127, 131 (Mo. banc 2007). Furthermore, “[w]here a written contract is unambiguous and complete on its face, parol evidence may not be introduced to vary or contradict the terms of the agreement.” Helterbrand v. Five Star Mobile Home Sales, Inc., 48 S.W.3d 649, 658 (Mo.App. W.D.2001). See also Devino v. Starks, 132 S.W.3d 307, 313 n. 6 (Mo.App. W.D.2004) (“[W]here the language of a contract is clear and unambiguous, evidence related to the parties’ subsequent actions” may not be considered.) Where the contract is ambiguous, however, “ ‘the intent of the parties must be established by extrinsic evidence and so a question of fact arises as to the intent of the parties to its meaning.’” Maritz Holdings, Inc. v. Fed. Ins. Co., 298 S.W.3d 92, 101 (Mo.App. E.D.2009) (quoting Chadwick v. Chadwick, 260 S.W.3d 421, 425 (Mo.App. S.D.2008)). Further, “[w]hen considering an oral [agreement], ascertainment of its terms, if they are in dispute, is a question of fact for the jury.” Envtl. Waste Mgmt., Inc. v. Industr. Excavating & Equip., Inc., 981 S.W.2d 607, 611 (Mo.App. W.D.1998). Summary judgment, therefore, “is only appropriate in contract cases where there is no ambiguity and the apparent meaning of the terms can be determined within the four corners of the document.” Maritz Holdings, Inc., 298 S.W.3d at 101.

A contract is ambiguous, and in need of a court’s interpretation, “ ‘if its terms are susceptible to honest and fair differences.’ ” Ethridge, 226 S.W.3d at 131 (citation omitted). “ ‘An ambiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the language in the [contract].’ ” Vest, 288 S.W.3d at 310 (quoting Gulf Ins. Co. v. Noble Broad., 936 S.W.2d 810, 814 (Mo. banc 1997)). “In determining whether a contract is ambiguous, the trial court must consider the whole document and the natural and ordinary meaning of the language.” Maritz Holdings, 298 S.W.3d at 99 (citing Teets v. Am. Family Mut. Ins. Co., 272 S.W.3d 455, 462 (Mo.App. E.D.2008)). Upon a finding of ambiguity, extrinsic evidence may be used to ascertain the intent of the parties as to the apparent meaning of the contract terms. Chadwick, 260 S.W.3d at 425. However, when ambiguity is found, it becomes the jury’s responsibility to ascertain the intent of the parties and summary judgment is inappropriate. Maritz Holdings, 298 S.W.3d at 101.

The trial court expressly grounded its opinion on extrinsic evidence of the oral understanding between Seneca/Bail USA and Sharp Bonding pertaining to the parties’ interpretation of the Bail Bond Agent Contract. The trial court relied on this extrinsic evidence to supplement the actual contractual language, finding: “Sharp Bonding is authorized to solicit and execute surety bail bonds for which Bail USA/Seneca act as sureties — all as governed by the terms of the January 2, 1998 agreement.” (Emphasis added.) As illustrated above, the language of the Bail Bond Agent Contract does not differentiate between surety bonds and property bonds.

This court, however, need not address the issue of whether the Bail Bond Agent Contract was ambiguous because, regardless of whether the contract was actually ambiguous or not, the trial court’s use of extrinsic evidence shows that, at least in the trial court’s mind, there was some ambiguity. The result of this contractual ambiguity is that the. agency issue remains for determination by the fact finder, and the grant of summary judgment is improper. See Maritz, 298 S.W.3d at 101 (“Where, as here, the contract is ambiguous, the intent of the parties must be established by extrinsic evidence and so a question of fact arises as to the intent of the parties to its meaning; thus, it is error to grant summary judgment. In fact, where the parties disagree on the meaning and effect of the contract, and parol evidence is required, a motion for summary judgment based on interpretation of the contract should be denied.”) (internal citations and quotation marks omitted).

Genuine Issue of Material Fact

Giving the non-movants the benefit of all reasonable inferences from the record:

a. Scope and Course of Agency — Prong 1

A jury could reasonably conclude that Sharp Bonding’s acts were performed to serve the business interests of Seneca/Bail USA. Pursuant to the Bail Bond Agent Contract, Sharp Bonding was permitted to solicit and execute bail bonds solely in the name of Seneca/Bail USA. Furthermore, the Bail Bond Agent Contract mandates Seneca/Bail USA receive 18% of every bail bond premium collected — with no distinction made between types of bail bonds in which Sharp Bonding is obligated to pay under.

A jury could reasonably infer that Seneca/Bail USA benefitted through its exclusive relationship with Sharp Bonding and the bail bond premiums Sharp Bonding paid to Seneca/Bail USA pursuant to the Bail. Bond Agent Contract. Because there are competing inferences from the Bail Bond Agent Contract, it is the jury’s responsibility, not the trial court’s, to evaluate which inference is more credible.

b. . Scope and Course of Agency — Prong 2

While Seneca/Bail USA and Sharp Bonding argue they do not have an agency relationship with each other as to the issuance of property bonds, West and Grant argue that the Bail Bond Agent Contract grants Seneca/Bail USA the right to control every aspect of Sharp Bonding’s business, including property bonds. Seneca/Bail USA claims the Bail Bond Agent Contract expressly states that Seneca/Bail USA has no involvement in Sharp Bonding’s apprehension of bond fugitives, which they argue removes any right of control Seneca/Bail USA has over Sharp Bonding. However, other provisions of the Bail Bond Agent Contract contradict this provision and detail Seneca/Bail USA’s exclusive right of control over Sharp Bonding, bolstering West and Grant’s argument. In sum, the Bail Bond Agent Contract supports two plausible but competing inferences, from which a jury might reasonably conclude that Sharp Bonding is an agent of Seneca/Bail USA regarding all bail bonds issued by Sharp Bonding, including the property bail bond in question.

Conclusion

There remain genuine issues of material fact as to whether an agency relationship existed between Seneca/Bail USA and Sharp Bonding with regard to the property bond in question. Because this is an appeal from the grant of summary judgment and the record must be reviewed in the light most favorable to West and Grant (i.e. the parties against whom judgment was entered), summary judgment is improper. The trial court’s judgment in favor of Respondents, Seneca/Bail USA and Sharp Bonding, is, therefore, reversed and remanded for further proceedings consistent with this opinion.

JAMES M. SMART, JR., Presiding Judge, and CYNTHIA L. MARTIN, Judge, concur.

      . Collectively, we will refer to these parties as "Serieca/Bail USA” throughout this opinion. Bail USA is Seneca’s Managing General Agent.

      . We express no opinion as to the status, existence, or validity of any agency relationship between Seneca/Bail USA and Sharp Bonding, regarding the underlying claim, other than that this remains a genuine issue of fact on the present state of the record before this court.

      . Michael Iiams was convicted of involuntary manslaughter for his role in killing Tamar.

      . Only the claims against Sharp Bonding and Seneca/Bail USA are relevant to this appeal.

      . We have a duty to determine sua sponte whether we have jurisdiction to review an appeal. See Fischer v. City of Washington, 55 S.W.3d 372, 377 (Mo.App. E.D.2001). We acquire jurisdiction to review a case upon the issuance of a "final judgment” from a court below. Section 512.020(5); Rule 74.01. Asa general rule, for the purpose of appeal, a judgment must dispose of all parties and all issues in the case and leave nothing for future determination. Goodson v. Nat'l Sports & Recreation, Inc., 136 S.W.3d 98, 99 (Mo.App. E.D.2004). If the trial court’s judgment is not final, we lack authority to consider the appeal and must dismiss the appeal. Fischer, 55 S.W.3d at 377. Rule 74.01(b) provides an exception to this general rule by permitting the trial court to designate as final a judgment "as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay." However, the trial court’s certification of a judgment as final is not conclusive because we must independently determine if such judgment actually qualifies as a final judgment. Fischer, 55 S.W.3d at 377. In doing so, we look to the judgment's content, substance, and effect. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). “When the trial court resolves all issues and leaves open no remedies as to one of several defendants, the court may certify its judgment as final for purposes of appeal with regard to that defendant." Crossman v. Yacubovich, 290 S.W.3d 775, 778 n. 3 (Mo.App. E.D.2009). The trial court’s September 2, 2009 grant of summary judgment to Seneca/Bail USA and partial grant of summary judgment to Sharp Bonding resolved all claims pending against either Seneca or Bail USA or both. Pursuant to Rule 74.01(b), the trial court expressly found that there was no just reason for delay and, therefore, certified the judgment as final for purposes of appeal. Consequently, we are vested with the authority to review the substantive nature of the present appeal.

      . All rule references are to Missouri Rules of Civil Procedure 2010, unless otherwise indicated.

      . Not so coincidentally, the alternative argument in Ritter was that the parent medical corporate entity should be vicariously liable for the acts of its subsidiary medical corporate entity under general agency principles, and when addressing that topic, the Ritter court repeated the principle of law that we reiterate today: " 'The touchstone is whether the party sought to be held liable has the control or right to control the conduct of another in the performance of an act.' " Ritter, 987 S.W.2d at 385 (emphasis added) (quoting J.M. v. Shell Oil Co., 922 S.W.2d 759, 764 (Mo. banc 1996)). And, not so coincidentally, in both Ritter and Hefner, the opinions focused on the fact that the parent medical corporate entity did not possess “control or right to control [the] medical care of patients” at the subsidiary medical corporate entity. Id.; Hefner, 996 S.W.2d at 666 (emphasis added).

      . See the Restatement (Second) of Agency, in which the following discussion is found in the Reporter's Notes at this section: "It is useful to distinguish situations in which liability is imposed on a parent [corporation] because of the existence of the agency relation, in our common-law understanding of that relation, from cases in which the corporate veil of the subsidiary is pierced for other reasons of policy. Unfortunately, however, the courts have not always observed the distinction between these two separate bases for parent’s [corporation] liability. When liability is fastened upon the parent [corporation] it is said that the subsidiary [corporation] is a ‘mere agent.’ The result has been a weakening and muddying of the term ‘agent’.... ” Restatement (Second) of Agency § 14M (1958), superseded by Restatement (Third) of Agency (2006).

      . While West and Grant are not parties to the Bail Bond Agent Contract, they are entitled to question the instrument and/or dispute the status of the parties created by the contract terms. See Brenner v. Socony Vacuum Oil Co., 236 Mo.App. 524, 158 S.W.2d 171, 175 (1942) ("[W]here the suit is not between the parties to the contract a third party can question the instrument, itself, and dispute the status it apparently creates and show that as a matter of fact the status was otherwise.”) (quoting Greene et ux. v. Spinning, 48 S.W.2d 51, 57 (Mo.App.1931)).

      . A "bail bond " is "a bond for a specified monetary amount which is executed by the defendant and a qualified licensee ... and which is issued to a court or authorized officer as security for the subsequent court appearance of the defendant upon the defendant’s release from actual custody pending the appearance.” Section 374.700(2).

      . Bail USA’s President and Seneca/Bail USA’s designated corporate representative.

      . Furthermore, the use of this extrinsic evidence arguably contradicts the express language of the Bail Bond Agent Contract. In pertinent part, the Bail Bond Agent Contract states:
      Each of the parties hereto acknowledges that this Agreement expresses his or its entire understanding; that there have been no representations made by any party hereto except as set forth herein; that this Agreement shall not be subject to change or modification except by execution of another instrument in writing subscribed to by each of the parties hereto....
      The express language prohibits any modification of the Bail Bond Agent Contract unless it is made in writing and signed by all parties. . However, perhaps only by coincidence, the parties to the contract now claim to have an oral understanding of the Bail Bond Agent Contract that modifies its terms — that is, that where the Bail Bond Agent Contract refers to “bail bonds,” the parties only intend for the Bail Bond Agent Contract to cover "surety bail bonds” and not "property bail bonds.” The trial court’s reliance on this oral understanding testified to by the parties to the Bail Bond Agent Contract further demonstrates the need for a jury to determine the credibility of the parties’ testimony regarding the terms of the Bail Bond Agent Contract and whether, in fact, the contracting parties did or did not modify the interpretation of the terms of the Bail Bond Agent Contract prior to issuance of the property bond in question.

      . Furthermore, case law rejects Seneca/Bail USA's argument that a statement in the contract which tries to disclaim liability will somehow bind an injured third party. Seneca/Bail USA argues that the provision in the Bail Bond Agent Contract disclaiming liability for bounty hunting removes any possibility of vicarious liability imputing to Seneca/Bail USA for Sharp Bonding’s acts:
      By execution of the [Bail Bond Agent Contract] by [Sharp Bonding], [Sharp Bonding] acknowledges and assumes full liability and provides [Seneca/Bail USA] with complete indemnification for all employees, agents, and independent contractors with whom [Sharp Bonding] may contract to assist [Sharp Bonding] in [its] bail bond business.
      However, contractual language attempting to limit liability cannot trump the actual reservations of the right to control found elsewhere in the contract. See, e.g., Five Star Quality Care-MO, L.L.C. v. Lawson, 283 S.W.3d 811, 815 (Mo.App. W.D.2009) (citing H.B. Oppenheimer & Co. v. Prudential Ins. Co. of Am., 876 S.W.2d 629, 632 (Mo.App. W.D.1994)); see also, Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 858-59 (8th Cir.2010) (decided under Missouri law). Moreover, when a contract appears to be contradictory, a factual question arises as to whether the right of control exists, thereby making summary judgment inappropriate. J.M. v. Shell Oil Co., 922 S.W.2d 759, 764 (Mo. banc 1996).

      . We express no opinion as to which of the competing inferences is most plausible. That determination is for a jury to make at a later date.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Judy RUARK, Appellant, v. Alva RUARK, Respondent.
    No. WD 71621.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2010.
    Kenneth C. Hensley and Wyatt Z. Roberts, Raymore, MO, for appellant.
    William W. Bird, St. Joseph, MO, for respondent.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, GARY D. WITT, Judge and KEITH MARQUART, Special Judge.
   ORDER

PER CURIAM:

Judy Ruark appeals the judgment of the trial court that, inter alia, dissolved her marriage to Alva Ruark and divided their marital and non-marital assets.

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


text:
    STATE of Missouri, Respondent, v. Jawanza BROWN, Appellant.
    No. WD 71079.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2010.

      S. Kate Webber, for appellant.
    Daniel N. McPherson, for respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, ALOK AHUJA, Judge and KAREN KING MITCHELL, Judge.
   ORDER

PER CURIAM:

Jawanza Brown appeals from his convictions by jury of two counts of Class A felony assault in the first degree, § 565.050, and two counts of armed criminal action, § 571.015. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 80.25(b).


text:
    Alvin DUDLEY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71417.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2010.
    Susan L. Hogan, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Jamie P. Rasmussen, Jefferson City, MO, for respondent.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Avin Dudley appeals the motion court’s denial of his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Dudley claims that the trial court erred in denying an evidentiary hearing, because he alleged facts which if true would entitle him to relief. Dudley maintains that he received ineffective assistance of counsel because his trial counsel failed to call an alibi witness at trial. We affirm. Rule 84.16(b).


text:
    James DUDLEY and Jennifer Ersery, Appellants, v. SOUTHERN UNION COMPANY, Respondent.
    No. WD 71981.
    Missouri Court of Appeals, Western District.
    Nov. 16, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2010.

      James Dudley, pro se.
    Jennifer Ersery, pro se.
    Martin M. Montemore, Kansas City, MO, for respondent.
    Division One: JAMES M. SMART, JR., P.J., MARK PFEIFFER, and CYNTHIA L. MARTIN, JJ.
   PER CURIAM:

James Dudley and Jennifer Ersery appeal the summary judgment in favor of Missouri Gas Energy. The appellants raise multiple points on appeal. The appeal is dismissed.

Facts

Given our analysis, we will not present a lengthy recitation of facts. This appeal pertains to a billing dispute between the appellants and Missouri Gas Energy (MGE). James Dudley brought two Public Service Commission complaints, alleging wrongful termination of service and wrongful transfer of a tenant’s bill to a residential account. The Public Service Commission determined that MGE did not violate tariffs or rules in discontinuing service. It further determined that MGE was not authorized to transfer the tenant’s bill to the residential account. The Commission ordered that the tenant’s bill be removed from the residential accoimt. Dudley was unsatisfied, because he' believed the termination of service was due to the wrongful transfer of account. MGE ceased collection efforts as to the tenant’s bill.

Dudley and Jennifer Ersery filed a lawsuit against MGE alleging damages related to the termination of service. The suit also alleged damage to Dudley’s credit as a result of the wrongful transfer. The trial court dismissed the petition with prejudice.

On appeal, this court held that Dudley could not claim damages as to the termination of service, but he could amend the petition to state a claim based on the wrongful transfer as to any damages flowing from the transfer. This court remanded to let Dudley proceed as to the wrongful transfer. Dudley v. Southern Union Co., 261 S.W.3d 598 (Mo.App.2008).

On remand, MGE moved for summary judgment. The trial court noted that Dudley failed to comply with Rule 74.04 in his responses. The court also said Ersery failed to sign the responses filed by Dudley, resulting in her admission of the facts. The trial court granted summary judgment in favor of MGE. It said that Dudley admits he never applied for credit during the relevant time frame and was never denied credit. MGE never reported Dudley’s alleged debt to a credit bureau. The trial court found that Dudley cannot prove damages.

Dudley appeals to this court.

Analysis

We first consider whether the appeal is properly before us. MGE argues that the appeal was not timely filed. “A notice of appeal must be filed no later than ten days after the judgment or order being appealed becomes final.” Berger v. Cameron Mut. Ins. Co., 173 S.W.3d 639, 640 (Mo. banc 2005) (citing Rule 81.04(a)). “A judgment becomes final thirty days after its entry unless an authorized after-trial motion is timely filed.” Id. (citing Rule 81.05(a)(1)). “If an authorized after-trial motion is timely filed, a judgment becomes final at the earlier of the following: (a) ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled; or (b) If all motions have been ruled, then the date of ruling of the last motion to be ruled or thirty days after entry of judgment, whichever is later.” Id. (citing Rule 81.05(a)(2)).

Summary judgment in favor of MGE was entered on October 29, 2009. A post-judgment motion to amend or alter the judgment was filed on November 9, 2009. The court denied that motion on December 15, 2009. Thus, the judgment became final on December 15, 2009. The appeal in the current case was filed on January 15, 2010, well beyond the ten-day window. The appeal was not timely filed, and we lack authority to proceed.

“Rule 81.07(a) establishes a process for obtaining a special order permitting a late notice of appeal.” Id. It allows a party to file the motion within six months from the date of the final judgment. Id. That six-month time period cannot be enlarged. Id. Our record shows that Dudley and Ersery did not timely request permission to file their appeal out of time. We have no choice but to dismiss the appeal.

Conclusion

The appeal is dismissed for lack of a timely notice of appeal. See Hamm v. Crawford, 281 S.W.3d 923, 924 (Mo.App.2009).


author: GLENN A. NORTON, Judge.

text:
    Ellen F. JENNINGS, Respondent, v. Luther E. JENNINGS, Appellant.
    No. ED 93601.
    Missouri Court of Appeals, Eastern District, Northern Division.
    Dec. 7, 2010.

      Bruce E. McGuire, Bowling Green, MO, for Appellant.
    Malaine P. Hagermeier, Bowling Green, MO, for Respondent.
    Before ROY L. RICHTER, C.J., CLIFFORD H. AHRENS, J., and GLENN A. NORTON, J.
   OPINION

GLENN A. NORTON, Judge.

Luther E. Jennings (“Husband”) appeals the judgment dissolving his marriage to Ellen F. Jennings (‘"Wife”). We affirm.

I. BACKGROUND

The trial court entered judgment dissolving the marriage of Husband and Wife. The court divided marital property and awarded Wife the marital residence and a portion of the value of a Ford Mustang as her separate property. Proceeds from the sale of Wife’s 202 acre farm, which she owned before the marriage, were used to pay off the loan on the marital residence. In addition, the parties used a portion of the proceeds from the sale of Wife’s farm to purchase a Chevrolet Impala, which was ultimately traded in as a $10,000.00 down payment on the Ford Mustang. Husband now appeals the trial court’s judgment.

II. DISCUSSION

A. Standard of Review

Each of Husband’s three points on appeal concern allegations of error in the trial court’s division of property. In a dissolution case, 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 applies the law. Workman v. Workman, 293 S.W.3d 89, 95 (Mo.App. E.D.2009).

When reviewing the trial court’s division of property, we give deference to the trial court, which has extensive discretion. Id. at 95. We will not reverse a trial court’s determination in this regard unless the division of property is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion. Id. “It is not per se an abuse of discretion if the trial court awards one party a considerably higher percentage of the marital property than it awarded the other party.” Id. at 96.

B. Division of Property was not Abuse of Discretion

In point one on appeal, Husband claims the trial court improperly applied the source of funds rule and based upon this theory mischaracterized the marital residence and a portion of the value of the 2006 Ford Mustang (“the vehicle”) owned by the parties as Wife’s separate property. The source of funds theory dictates that the character of property will be determined by the source of funds financing the purchase. Hoffmann v. Hoffmann, 676 S.W.2d 817, 824 (Mo. banc 1984). According to Husband, the marital residence and the vehicle were clearly jointly titled property purchased by the parties during the marriage with marital funds. Point two on appeal makes essentially the same claim regarding the improper classification of the residence and the vehicle as separate property based upon the fact that even assuming the residence and the vehicle were Wife’s separate property initially, they were transmuted into joint assets by her actions.

Husband’s argument concerning the characterization of the residence and the vehicle as Wife’s separate property may have some merit. Wife used both the rental income and the sale proceeds from the 202 acre farm she owned prior to the marriage to contribute to the purchase of the marital residence and the vehicle. However, the residence and the vehicle were ultimately titled in both parties’ names, and the residence was also partially paid for with marital funds. Based on these facts, it appears as though the trial court’s classification of the residence and the vehicle as Wife’s separate property may have been erroneous. “Regardless, error in classifying property as marital or non-marital does not require reversal unless it materially affects the merits of the action.” Patterson v. Patterson, 207 S.W.3d 179, 189 (Mo.App. S.D.2006). We will reverse for such error only if it causes the division of property to be so unduly weighted in favor of one party to amount to an abuse of discretion. Id.

Assuming the marital residence and the portion of the value of the vehicle should have been classified as marital property, we consider whether the division of property was so unduly weighted in favor of one party to amount to an abuse of discretion. In this case, Wife did ultimately receive a significantly greater percentage of the marital property than Husband when including the marital residence and the portion of the value of the vehicle. However, if the trial court awards one party a significantly higher percentage of marital property, it is not an abuse of discretion per se. Workman, 293 S.W.3d at 96. Instead, the division of property must only be fair and equitable given the particular circumstances of the case. Id. Pursuant to section 452.330.1 RSMo 2000, the trial court must consider “all relevant factors” when dividing marital property and debt,, including the contribution of each spouse to the acquisition of the property. Disparity in the division of marital property is appropriate if any of the relevant factors justify the unequal division. Workman, 293 S.W.3d at 96.

In this case, Wife’s contribution to the acquisition of the marital residence and the vehicle, as well as other marital property justified the disparity in the division of property. Wife was awarded the full value of the marital residence, as well as a portion of the value of the vehicle, among other marital property. It is undisputed that Wife used a portion of the proceeds from the sale of her 202 acre farm, which was acquired before the marriage, to pay off the mortgage on the marital residence. At the time the outstanding balance of the loan was approximately $104,000.00. In addition, a portion of the proceeds from the sale of Wife’s farm was used to purchase a Chevrolet Impala, which was ultimately traded in as a $10,000.00 down payment on the Ford Mustang. Moreover, throughout the marriage the parties used the proceeds from the sale of Wife’s farm to make investments and they placed a large amount of the proceeds in a savings account, which was used by both Husband and Wife. They also purchased motorcycles with the money. The record also reflects that Wife made roughly $20,000.00 more per year in income than Husband during their marriage. Considering the significant contribution Wife made to the acquisition of most of the marital property through the use of proceeds from the sale of her separate property, and through the use of her higher income, the disparity in the division of property in this case was justified. Therefore, the trial court did not abuse its discretion. Points one and two on appeal are denied.

C. Husband’s Separate Property

In point three on appeal, Husband claims if the court properly applied the source of funds rule, it should have traced back Husband’s separate assets as the source of funds used to finance marital property, including a $75,000.00 “gift” given to him by Wife as well as the proceeds from the sale of his mobile home owned before the marriage. Husband’s arguments are without merit.

With respect to the alleged “gift” of $75,000.00, Husband claims Wife gave him this money when he told her that is what it would take for him to leave the marriage. Wife testified she did not recall the circumstances surrounding the check written to Husband for $75,000.00; however, she believed it was to be used to open an account with Edward Jones. She did not recall offering Husband money to leave the marriage. “We defer to the superior ability of the trial court to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles not revealed in the transcript.” Workman, 293 S.W.3d at 95. Here, it is clear the trial court considered the testimony of both parties and concluded the check written to Husband for $75,000.00 was not a “gift.” This conclusion was supported by the record, and therefore, the trial court did not err in failing to set aside the $75,000.00 as Husband’s separate property.

Husband also claims he should have been awarded the $5,000.00 from the proceeds of the sale of his mobile home as separate property. Husband acknowledges the proceeds were commingled with marital assets, but he argues the court should have traced back the $5,000.00 as his separate property. We disagree. As noted above, the erroneous classification of property will not be considered grounds for reversal unless it materially affects the merits of the action. Patterson, 207 S.W.3d at 189. We will reverse for such error only if it causes the division of property to be so unduly weighted in favor of one party to amount to an abuse of discretion. Id. As previously discussed, the court considered the contributions of each party to the acquisition of marital property in dividing the property. In light of Wife’s contribution to the acquisition of marital property, the trial court did not abuse its discretion in failing to set aside $5,000.00 to Husband and in awarding Wife a larger portion of the property. Point three on appeal is denied.

III. CONCLUSION

The judgment is affirmed.

ROY L. RICHTER, C.J. and CLIFFORD H. AHRENS, J„ concur.


author: JEFFREY W. BATES, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Esther E. WADLEY, Defendant-Appellant.
    No. SD 29749.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 10, 2010.

      Donald R. Cooley, Springfield, MO, for Appellant.
    Chris Koster, Atty. Gen., Jayne T. Woods, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   JEFFREY W. BATES, Presiding Judge.

A jury convicted Esther Wadley (Defendant) of conspiracy to commit first-degree murder. See § 564.016. On appeal, Defendant presents three points of alleged error. Finding no merit in any of these points, we affirm.

Point I — Sufficiency of the Evidence

Defendant’s first point challenges the sufficiency of the evidence to support her conviction. We view the evidence and all reasonable inferences derived therefrom in the light most favorable to the verdict; all contrary evidence and inferences are disregarded. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). ‘We defer to the jurors’ superior position to weigh and value the evidence, determine the witnesses’ credibility and resolve any inconsistencies in their testimony.” State v. Lopez-McCurdy, 266 S.W.3d 874, 876 (Mo.App.2008). Viewed from this perspective, the following evidence was adduced at trial.

Defendant married Joshua Millager (Millager) in October 1996 while she was a medical student completing an internship. During the marriage, they had one child. Their daughter, Crystal Millager (Crystal), was born in 1997. After Defendant completed her medical residency, the couple moved to Barry County, Missouri. Defendant practiced family medicine at a small clinic in Aurora. In 2000, Defendant moved her clinic to Republic. Defendant’s marriage deteriorated, and she separated from Millager in December 2002. Defendant filed a dissolution petition in Barry County. The couple went through protracted litigation for the next two years. In December 2004, the court entered a judgment that dissolved the marriage and awarded sole physical and legal custody of Crystal to Millager. Defendant was awarded visitation, which she exercised. She was upset about the custody arrangement.

In April 2006, Millager was dating Cris-sy Phillips (Crissy). She had a son named Dustin Phillips (Dustin). Crystal and Dustin attended a bible study program at a church in Aurora. The children received awards during a ceremony at the church on April 27th. Defendant attended the event and took a number of photographs. One photograph was a picture of Millager and Crystal. Another photograph was a picture of Millager, Crystal, Crissy and Dustin.

Paul Bell (Bell), who at one time had lived in Tennessee, had moved to Marion-ville in 2001 after he became disabled. He began receiving treatment from Defendant at her medical clinic in Republic. Bell was a patient of Defendant until she closed her practice in May 2003. During that time, Bell had approximately 35 office visits with Defendant. They had a typical doctor-patient relationship.

Bell frequented the Christian Service Center (the Center) in Aurora to get help with groceries. On October 9, 2007, Bell was at the Center when he saw Defendant. They spoke to each other for a few minutes. During this conversation, Defendant asked Bell if she could hire him to murder her ex-husband, Millager. On direct examination, Bell described the conversation this way:

Q. What was the reason you were going down there to talk?
A. She was wanting to discuss a situation that she wanted to check with me about having done.
Q. And what was that situation?
A. It was called murder for hire.
Q. When was that brought up? When was the first time that was brought up, murder for hire?
A. On the 9th.
Q. Did she tell you who she wanted murdered?
A. Yes, sir.
Q. Who was that?
A. It was her ex-husband.

On October 11th, Bell and Defendant met at the Center. She gave her cell phone number to Bell so he could contact her. Defendant then drove Bell to a downtown café to talk about Millager’s murder. On direct examination, Bell described the meeting in this way:

Q. What was the nature of that conversation that you had down there at the café?
A. The nature of it was just to see if she was honestly serious about what she was telling us she wanted done to her ex-husband.
Q. Did you say that — did you tell her you could help her out?
A. Yes, I did.
Q. What did you tell her you could do?
A. I just told her I knew somebody that done things like that.
Q. Okay. Did you tell her where that person lived or—
A. Well, I just said I had a buddy—
Q. Okay.
A. —down south.

Bell estimated that it would take $200 in expense money for him to speak to his buddy. After Bell did so, he would let Defendant know and set up a meeting between her and his buddy. The meeting between Defendant and Bell lasted 30-45 minutes. Defendant drove Bell back to the Center and dropped him off. They planned to get together later that day. Bell gave Defendant directions to a store near his house where they would meet.

Defendant arrived at the store around 5:30 p.m. and followed Bell to his house. Defendant began talking with Bell and his wife, Theresa Bell (Theresa). Defendant wanted to regain custody of her daughter. During that conversation, Defendant handed Bell an envelope containing a piece of paper and two color photographs. Millager’s full name, address, place of employment, date of birth, social security number and description of his vehicle had been handwritten on the piece of paper. The first photograph was a picture of Millager and Crystal that Defendant had taken at the Aurora church on April 27th. The second photograph was a picture of Millager, Crystal, Crissy and Dustin that Defendant had taken at the Aurora church on April 27th. When Bell removed this photograph from the envelope, Defendant pointed to Millager and said he was her ex-husband. Defendant explained what she wanted Bell to do:

Q. Okay. And when you say that she talked to you about her husband, what did she say? Or ex-husband. What did she say?
A. She said that’s the — that’s the gentleman that she wants put away. Now, that is what she told me.
Q. Okay. Did she say what she meant by put away?
A. Yeah. She wants him dead.
Q. Okay.
A. Point blank, that’s how she said it to me. Wants him dead.

Defendant seemed “sincere” and “[m]ost definitely” wanted Millager killed. Defendant wanted the murder to take place as quickly as it could be done. She wanted it to look like a burglary that had gone bad. She gave Bell instructions about taking various items of value in the house like jewelry and weapons. To make sure that Defendant and Crystal were not around when Millager was killed, Defendant said that she wanted the murder committed on a weekend when she had custody of Crystal. That way, “[Defendant] would have enough people to know where they were in case something was said.” Defendant promised Bell money if Millager were killed. Defendant told Bell that “when it was said and done the person would be well taken care of.” Defendant also mentioned that Crissy and Dustin might be present at the house with Millager. Defendant said “it would be a shame if something happened to all of them, wouldn’t it?” Defendant stayed at Bell’s house until 11:00 p.m. talking about what was going to be done.

The next day, Bell was planning to leave town. Defendant told Bell to go to the Center to pick up $200 that she had left there for him. This was “expense money for [Bell] to go find a hit man[.]” Bell went to the Center and picked up two $100 bills. Initially, Bell did try to hire a hit man. He called a friend and asked him to do it, but that person declined. Bell then had a change of heart and called the F.B.I. That agency contacted local law enforcement.

On October 17th, Sgt. James Musche of the Missouri Highway Patrol came to Bell’s home to interview him. Bell reported that he had been approached by Defendant to find someone to kill Millager for her. Bell agreed to cooperate in the investigation. He gave Sgt. Musche the two photographs and the piece of paper Defendant had left there. While Sgt. Musche was there, Bell called Defendant to see whether she still wanted to go through with the murder. Bell asked Defendant if she still wanted Millager “put away.” Defendant said she did. She agreed to meet with Bell’s buddy.

On October 18th, Bell called Defendant. The purpose of this call was to attempt to introduce Defendant to an undercover officer posing as the “hit man” Defendant has asked Bell to find. This telephone conversation was recorded. Bell told Defendant that his buddy wanted to meet her that afternoon. Defendant was reluctant to do so and said, “I thought the whole thing was that I’m not supposed to know anything.” Bell said his buddy wanted Defendant to give him a little money up front “to get this over with.” The following conversation then occurred:

Bell: Oh, okay. But no, you just, you just tell me if you wanna think it over and meet me some time tomorrow or do you want to meet him today and, and us get everything together and go from there ‘cause you know you have your kid tomorrow, evening.
Wadley: Yeah I know I’ll have her.
Bell: And you’ll have her this weekend.
Wadley: Um huh, yeah, she’s all excited ... to see her mommy.
Bell: Yeah, I guess she’ll be glad to see her momma. I mean that’s up to you now. You know what you wanna do.
Wadley: Yeah, I know what I want. The problem is that I don’t trust anyone with anything anymore.
Bell: Well I need to let him know Doc, ‘cause, you know — I can’t just keep him hanging out.
Wadley: It was already discussed.
Bell: No, what I’m saying is do ya, ah are you are you dead serious about it? And if so, we need to get together, get this down pat and over with.
Wadley: Okay, where do you want to meet?

Defendant agreed to meet Bell and his “buddy” at Sutherland’s lumber yard in Aurora.

Bell then met with Sgt. Musche and his fellow officers, Sgt. Mike Rogers and Sgt. Roger Renken. Bell surrendered the two $100 bills he had picked up at the Center. He had thrown away the envelope in which the bills had been placed. The plan was for Bell, Theresa and Sgt. Rogers to go to Sutherland’s and call Defendant to see whether she would come there to meet them. Sgt. Rogers would pose as the “hit man.” Sgt. Renken and Sgt. Musche would observe events and try to record them from a surveillance van.

Bell and Theresa drove to Sutherland’s in their Camry. When they arrived, Sgt. Rogers got into the Camry with them. Bell and Sgt. Rogers were in the front seats; Theresa was sitting in one of the back seats. Sgt. Rogers had with him the two color photographs and the piece of paper that Defendant had given to Bell. When Defendant arrived, she parked her car and got into the back seat of the Camry. Sgt. Rogers showed the two photographs and the piece of paper to Defendant and asked her what she wanted done. Defendant said she wanted Millager killed. Defendant also said Bell knew what she wanted done. She explained that she wanted it to look like a particular movie that she had seen on television. When Sgt. Rogers asked Defendant for money, Defendant responded by saying “when it is all said and done he knows that it will be tooken [sic] good care of.” She got out of the Camry and returned to her vehicle. Sgt. Rogers followed her, and the two talked for a few minutes. Bell was not able to hear what was being said. Bell and Theresa left while Defendant and Sgt. Rogers were still talking.

Defendant was arrested on December 3, 2007. In relevant part, the first amended information alleged that Defendant committed the class B felony of conspiracy because Defendant, “with the purpose of promoting and facilitating the offense of murder in the first degree, agreed with Paul Bell and Theresa Bell to hire a person to murder Joshua Millager, and in furtherance of the conspiracy, [Defendant, provided two hundred dollars to Paul Bell for the purposes of paying expenses related to hiring a person to kill Joshua Millager.”

After the State rested, Defendant filed a motion for judgment of acquittal at the close of the State’s evidence. That motion was denied. Defendant rested without presenting any evidence. Defendant’s motion for judgment of acquittal at the close of all of the evidence also was overruled.

In Defendant’s first point on appeal, she contends the trial court erred in denying her motions for judgments of acquittal. In a jury-tried case, an appellate court reviews a trial court’s ruling on a motion for judgment of acquittal to determine whether the State made a submissi-ble case. This requirement is satisfied if a reasonable juror could find each element of the crime beyond a reasonable doubt. State v. Rousan, 961 S.W.2d 831, 841 (Mo. banc 1998); State v. Jeffries, 272 S.W.3d 883, 883 (Mo.App.2008). Defendant was charged with conspiracy to commit murder in violation of § 564.016. In relevant part, this statute states:

1. A person is guilty of conspiracy with another person or persons to commit an offense if, with the purpose of promoting or facilitating its commission he agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such offense.
4. No person may be convicted of conspiracy to commit an offense unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.

§ 564.016. Thus, a person is guilty of conspiracy to commit an offense if: (1) he or she has the purpose to promote or facilitate the commission of the offense; (2) he or she agrees with one or more persons that they or one of them will engage in conduct which constitutes the offense; and (3) at least one member of the conspiracy commits an overt act in pursuance of the agreement. State v. Madewell, 846 S.W.2d 208, 209 (Mo.App.1993). The State presented substantial evidence from which a reasonable juror could find each element beyond a reasonable doubt.

First, the State presented substantial evidence that it was Defendant’s purpose to promote or facilitate the death of her ex-husband, Millager. When Defendant and Bell met by chance at the Center, Defendant said that she wanted Millager murdered. During the meeting at Bell’s home, Defendant said that she wanted Mil-lager dead. Defendant proposed a plan for how the murder should be committed. She furnished Bell with specific information that could be used to identify Millager. She promised that she would take good care of the person who committed the murder. When Defendant was in the Camry, she again said that she wanted Millager killed.

Second, the State presented substantial evidence that it was Defendant’s intent that Bell and the “hit man” — whom Sgt. Rogers pretended to be — engage in conduct which constituted the offense of murder. During the meeting at the café, Bell said he knew someone who might commit the murder. Bell estimated that it would take $200 in expense money to contact that person. During the meeting at Bell’s home, Defendant provided Bell with photographs of Millager and detailed personal information about him. She provided Bell with instructions on valuables that could be taken from Millager’s house to make the murder appear to have been a burglary gone awry. Before Bell left town, Defendant gave him the $200 as expense money to go find a hit man. When Bell called Defendant on October 17th to see if she still wanted to go through with the murder, Defendant said she did. She agreed to meet with the “hit man.” While Defendant was in the Camry, she again stated that she wanted Millager killed. She told Sgt. Rogers, who was posing as the “hit man,” that she wanted the murder committed in the same way as a movie she had seen on television. When Sgt. Rogers asked for money, Defendant replied that she would take good care of him when everything was done.

Third, the State presented substantial evidence that Defendant committed at least three overt acts in furtherance of the conspiracy. The first overt act was giving Bell photographs and other specific identifying information about Millager. The second overt act was giving Bell $200 as expense money to find a hit man. The third overt act was meeting Sgt. Rogers, who was posing as the “hit man.”

Defendant argues, however, that the State’s evidence was insufficient because there was no evidence of any agreement between Defendant and Bell to murder Millager. As support for that argument, Defendant relies upon testimony by Bell that he never intended to actually be involved in Millager’s murder. This argument is misdirected because it is only necessary for Defendant to have had the

subjective intent that Millager be murdered in order for the crime of conspiracy to occur. Bishop v. State, 969 S.W.2d 366, 369 (Mo.App.1998). “The subjective intent of the other individual, the person with whom the defendant is alleged to have conspired, is irrelevant.” State v. Hlavaty, 871 S.W.2d 600, 605 (Mo.App.1994). Our conspiracy statute adopted a unilateral theory of conspiracy. State v. Welty, 729 S.W.2d 594, 596 (Mo.App.1987). Thus, it was not necessary for the State to present evidence that Bell, Theresa or Sgt. Rogers actually shared Defendant’s intention that Millager be murdered in order for Defendant to be convicted of conspiracy. State v. Simpson, 779 S.W.2d 274, 281 (Mo.App.1989); State v. Hohensee, 650 S.W.2d 268, 275-76 (Mo.App.1982).

Defendant also argues that the State’s evidence was insufficient because there was no evidence of any agreement between Defendant and Theresa to murder Millager. This argument fails for the same reasons set forth above. In addition, “[a] defendant charged with conspiring' with others may be convicted on proof of conspiracy with any of the others and without proof all participated in the conspiracy.” State v. Ray, 768 S.W.2d 119, 122 (Mo.App.1988). Point I is denied.

Point II — Allegedly Improper Rebuttal Argument

Defendant’s second point challenges an allegedly improper rebuttal argument by the State. The following facts are relevant to this point.

During Defendant’s closing argument, her counsel attacked Bell’s credibility. Counsel argued that:

This man, who [you are] going to be asked to believe beyond a reasonable doubt, that this woman committed what he says to be one of the most heinous offenses that we have in criminal law, is a man who sat right in front of you, and we will go through them, on more than three to five occasions looked you square in the face and lied.

Counsel then reviewed the evidence upon which he relied to make this argument. Later, counsel returned to this argument and said it was “a travesty to think that this lady is sitting in this courtroom based on the word of a — of a professed perjurer trying to ask you to find her guilty of something beyond a reasonable doubt.” Counsel argued that “Paul Bell, the one and only person, with these tape recordings that don’t say anything, is here today, inconsequentially, amazingly enough, the only source of information that they are asking you to find a lady guilty of conspiracy to commit murder.” Toward the end of the argument, counsel described Bell as “one person who is unequivocally a liar....”

During the State’s rebuttal argument, the prosecutor disputed defense counsel’s argument that Bell was lying:

I submit to you there are things in this case that confirm Paul Bell. [Defense counsel] wants you to believe Paul Bell is a liar. Why would Paul Bell come in and tell these stories, and get involved in this criminal case, and be subjected to cross-examination, and be called a liar? He has taken an oath. He may not remember everything that happened on October the 9th, specifically, and he may have been stupid enough to go ahead and throw away the envelope. He is not a police officer. He wasn’t even sure what he was going to do at that time. Maybe he thought he was never going to get' the $200.00, but when it showed up he certainly didn’t look a gift horse in the mouth. He took it, and I think at some point you’ve got to believe that Paul started thinking, that conscience that comes on in the back of each one of our heads, that little voice that we hear.... And Paul Bell had that conscience. Thank God he did.

The prosecutor then recounted evidence which, in his view, supported Bell’s testimony. At the conclusion of the rebuttal argument, the prosecutor stated:

Justice needs to be done here, ladies and gentlemen. Justice for [Millager], who could have just as easily been dead today, whose daughter could just as easily have lost her father last year if it wasn’t for this man right here. And [defense counsel] can call him a liar, and he can try to discredit Paul Bell, but I would take a hundred of Paul Bell’s [sic] tomorrow, who had the conscience to come in here and say, no, I am not going to do this, than to have one of this lady right here.

Defense counsel objected that this was “blatant personalization” about what the prosecutor would think or do and requested a mistrial. The court overruled the objection and denied the request for a mistrial.

In Defendant’s second point, she contends the trial court erred by overruling the objection and denying the request for a mistrial. We review the trial court’s ruling on an objection to closing argument for abuse of discretion. State v. Burton, 219 S.W.3d 778, 781 (Mo.App.2007). A trial court abuses its discretion when its ruling is clearly against the logic of circumstances before it and when the ruling is so arbitrary as to shock this Court’s sense of justice and indicate a lack of careful consideration. State v. Wheeler, 219 S.W.3d 811, 815 (Mo.App.2007). An appellate court will reverse a conviction “only if the challenged comments had a decisive effect on the jury verdict, meaning that there is a reasonable probability that, in the absence of the comments, the verdict would have been different.” State v. Smith, 32 S.W.3d 532, 552 (Mo. banc 2000). The burden is on the defendant to demonstrate the decisive effect of the comments. State v. Miller, 226 S.W.3d 262, 266 (Mo.App.2007); State v. Vanlue, 216 S.W.3d 729, 734 (Mo.App.2007).

We also review a trial court’s refusal to grant a mistrial for abuse of discretion. State v. Norman, 243 S.W.3d 466, 472 (Mo.App.2007). “This is because the trial court has observed the complained of incident that precipitated the request for a mistrial and is in a better position than is the appellate court to determine what prejudicial effect, if any, the incident had on the jury.” Wheeler, 219 S.W.3d at 815. A mistrial is a drastic remedy, appropriate only in extraordinary circumstances where prejudice cannot be removed otherwise. Id.

Defendant argues that the prosecutor’s comments implied personal knowledge outside of the record. We disagree. The record reveals that the prosecutor’s rebuttal argument was intended to respond to defense counsel’s assertions that Bell was a liar. The prosecutor argued that Bell decided to contact police, and thereby attempt to stop Defendant from having Millager murdered, because Bell was motivated to do so by his conscience. This argument was a reasonable inference that the jurors could draw from Bell’s testimony that he initially tried to hire a hit man, but he then had a change of heart and contacted law enforcement. A prosecutor has the right to comment on a witness’ credibility from the State’s viewpoint. State v. Wright, 216 S.W.3d 196, 201 (Mo.App.2007). “Vouching occurs when a prosecutor implies that he or she has facts establishing the veracity of a state’s witness that are not before the jury for their consideration.” Glover v. State, 225 S.W.3d 425, 430 (Mo. banc 2007). “Stating that a witness is telling the truth does not constitute vouching as long as the prosecutor does not imply that the statement is based on evidence not before the jury.” Id. Nothing in the record before us supports Defendant’s assertion that the prosecutor’s rebuttal argument implied knowledge of facts not before the jury. The prosecutor simply argued that a person motivated to act by conscience was worthy of belief. In sum, the trial court did not abuse its discretion in overruling the objection and denying the request for a mistrial. Point II is denied.

Point III — Refusal to Give a Noh-m-MAI-CR Jury Instruction

Defendant’s third point challenges the trial court’s decision not to give a not-in-MAI-CR instruction tendered by Defendant. The following facts are relevant to this point.

During the instruction conference, the State offered Instruction No. 5. This instruction, which was the verdict director for the conspiracy charge, stated:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about October 18, 2007, in the County of Lawrence, State of Missouri, the defendant agreed with Paul Bell and Theresa Bell that one or more of them would engage in conduct consisting of murder of Joshua Millager, and
Second, that defendant so agreed with the purpose of facilitating that offense, and
Third, that in furtherance of that agreement the defendant thereafter engaged in the following act: provided to Paul Bell $200.00 in cash for purpose of paying expenses for hiring a person to kill Joshua Millager;
then you will find the defendant guilty of conspiracy to commit murder in the first degree.
A person commits the offense of murder in the first degree when she knowingly causes the death of another person after deliberation upon the matter.
The following terms used in this instruction are defined as follows:
Deliberation — which means cool reflection upon the matter for any length of time no matter how brief.
Purpose — a person acts purposely, or with purpose, with respect to the person’s conduct or to a result thereof when it is his or her conscious object to engage in that conduct or to cause that result.

This instruction was based upon pattern instruction MAI-CR 3d 304.10. Paragraph third had been modified at defense counsel’s request. Defendant had no objection to Instruction No. 5. Defense counsel offered the following not-in-MAI-CR instruction, which was marked by the trial court as “Instruction No. A” (Instruction A):

If you find that the defendant conspired to commit the charged offense of Conspiracy to Commit First Degree Murder, but prevented the accomplishment of the objective of the conspiracy under circumstances manifesting a renunciation of defendants [sic] criminal purpose, you must find defendant not guilty.

The court refused to give this instruction.

Defendant’s third point contends the trial court erred in refusing Instruction A. Defendant argues that this instruction should have been given to submit the defense of renunciation to the jury, as authorized by § 564.016.5(1). We disagree.

MAI-CR 3d 304.10 is the pattern MAI-CR instruction for submitting a charge of conspiracy to commit an offense. Notes on Use 5 states:

Section 564.016.5 provides for the defense of renunciation. The “burden of injecting the issue” of the defense of renunciation is on the defendant. Whenever there is evidence supporting this defense, upon written request in proper form by either party or on the Court’s own motion, a paragraph submitting the defense will be added to the verdict director as follows: Add the word “,and” to the last numbered paragraph of the verdict director and then insert the following:
(Third) (Fourth) ([next numbered paragraph ]), that defendant did not prevent the commission of [name of offense and its object ] under circumstances indicating he had renounced any criminal purpose to commit the offense.
For a discussion of the defense of renunciation and other provisions of the conspiracy statute, see the comment under Section 9.020 of the Proposed Criminal Code of Missouri (1973), reprinted with Section 564.016, VAMS. Note in particular the distinction between the doctrines of renunciation and withdrawal.

MAI-CR 3d 304.10, Notes on Use 5. Rule 28.02(c) states that “[w]henever there is an MAI-CR instruction or verdict form applicable under the law and Notes On Use, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other instruction or verdict form.” Id. In order for the defense of renunciation to be properly submitted to the jury, Instruction No. 5 would have to have been modified in the manner required by MAI-CR 3d 304.10, Notes on Use 5. Because Instruction A did not follow the requirements of the applicable MAI-CR instruction, the trial court did not err in refusing it. See State v. Greer, 879 S.W.2d 683, 685 (Mo.App.1994) (holding that a trial court did not err in refusing to give a not-in-MAI-CR instruction which failed to follow the applicable MAI-CR instruction for submitting the defense of duress). Point III is denied.

The judgment of the trial court is affirmed.

BARNEY and BURRELL, JJ., Concur.

      . All references to statutes are to RSMo (2000). All references to rules are to Missouri Court Rules (2010).

      . Because several witnesses share the same surnames, we refer to them by their first names for purposes of clarity.

      . Due to technical difficulties, none of the officers were able to make any audio or video recordings of what transpired at the lumber yard.

      . This subsection of the statute states: "No one shall be convicted of conspiracy if, after conspiring to commit the offense, he prevented the accomplishment of the objectives of the conspiracy under circumstances manifesting a renunciation of his criminal purpose.”


author: DAVID R. FARMER, J.,

text:
    Frank GARRETT, et al. v. CITY OF MEMPHIS et al.
    Court of Appeals of Tennessee, at Memphis.
    Feb. 24, 2010 Session.
    March 29, 2010.
    Application for Permission to Appeal Denied by Supreme Court Oct. 16, 2010.

      David M. Sullivan, Memphis, Tennessee, for the appellants, Frank Garrett, Raymond Hopkins and William Walsh.
    Louis P. Britt, III and P. Daniel Riederer, Memphis, Tennessee, for the appellee, City of Memphis.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the Court,

in which HOLLY M. KIRBY, J. and J. STEVEN STAFFORD, J., joined.

This appeal concerns the discretion of the Memphis Police Department to fill vacant civil service positions -with temporary, “acting” personnel prior to the expiration of an active promotion roster. The trial court concluded the Memphis City Charter does not mandate permanent promotion of the next eligible employee from an active promotion roster simply because a vacancy exists. The court further concluded that no charter provision or city ordinance prohibits the use of acting appointments; rather, the proof showed that the use of officers in an acting capacity is a longstanding policy within the police department and every other division of city government. As a result, the court held that the department did not violate civil service laws when it declined to permanently promote the plaintiffs. Finding no error in the decision below, we affirm.

I. Background and Procedural History

The plaintiffs/appellants, Frank Garrett, Raymond Hopkins, and William Walsh (“officers”), are current and former majors in the Memphis Police Department (“MPD”). In 2005, the officers participated in competitive testing for promotion to the civil service rank of inspector (now “lieutenant colonel”). The resulting promotion roster, which was effective from September 2005 to September 2008, ranked the officers nineteenth, twentieth, and twenty-sixth out of forty participants. Over the next three years, the MPD promoted the first seventeen majors on the promotion roster to the rank of lieutenant colonel, with the final permanent promotion occurring in February 2008. At that time, the officers were among the next persons eligible to receive permanent promotion to lieutenant colonel.

In March 2008, the director of the MPD, Larry Godwin, decided to assign temporary, “acting” personnel to four vacant lieutenant colonel positions. The police director initially selected four majors, including Frank Garrett and William Walsh, to serve as acting lieutenant colonels. In April 2008, the director selected three additional majors to serve in an acting capacity. Thereafter, the director decided to rotate majors as acting lieutenant colonels on a six-month basis in order to provide a greater number of persons with experience managing a precinct and to boost department morale. Thirteen different majors served as acting lieutenant colonels from March 2008 until the expiration of the promotion roster in September 2008.

This appeal arises out of a lawsuit alleging that the director circumvented the officers’ right to promotion to the rank of lieutenant colonel through the appointment of acting personnel. The officers asserted that the failure to permanently promote them prior to the expiration of the September 2005 promotion roster violated the City’s civil service laws as well as the age discrimination, race discrimination, and retaliation provisions of the Tennessee Human Rights Act. Their complaint and amended complaint sought temporary and permanent injunctions requiring the City to promote them to lieutenant colonel with full pay and benefits, compensatory damages, actual damages, back pay, attorney’s fees, and court costs. The trial court granted the officers’ request for a temporary injunction in part, enjoining the MPD from using majors who were not qualified for permanent promotion as acting lieutenant colonels unless no more persons from the promotion roster were available to serve in a temporary capacity.

The parties proceeded to trial in January 2009. Following a bench trial, the court entered judgment in favor of the City on all issues. The court found that the City did not discriminate or retaliate against the officers on any of the alleged bases. The court further found that the Memphis City Charter did not require the police director to permanently promote the officers. The court explained that the charter only requires that, if promotions are made to civil service positions, the resulting promotions comply with its provisions. The charter, however, did not require promotions to vacant positions or prohibit the use of officers in an acting capacity. Because city policy authorized the use of acting personnel, the court found no error in the decision not to further promote from the September 2005 promotion roster. The court later rejected the officers’ post-trial motions and this appeal ensued.

II. Issues Presented

The officers present the following issues, as we perceive them, for review:

(1) Whether civil service laws providing a right to undergo competitive testing for permanent promotions eliminate the discretion of a city personnel director to temporarily fill vacant positions with acting personnel.
(2) Whether the officers had a right to permanent promotion that the City defeated or obstructed.
(3) Whether the City impermissibly discriminated against the officers in promotion on the basis of nonmerit factors.

The officers did not appeal the court’s ruling in favor of the City on their age discrimination, race discrimination, and retaliation claims.

III. Standard of Review

Our review of the trial court’s decision is conducted pursuant to Rule 13(d) of the Tennessee Rules of Appellate Procedure. Under Rule 18(d), we review de novo the judgment of a trial court in a bench trial, according a presumption of correctness to the factual findings of the court below. Tenn. R.App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993) (citation omitted). We will not disturb a trial court’s findings of fact unless a preponderance of the evidence is to the contrary. Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn.2000) (citation omitted). Our review is de novo with no presumption of correctness if the trial court does not produce findings of fact. Archer v. Archer, 907 S.W.2d 412, 416 (Tenn.Ct.App.1995) (citations omitted). Questions of law are similarly reviewed de novo with no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000) (citation omitted).

IY. Analysis

At the heart of this appeal lies the question of whether the appointment of temporary, acting personnel deprived the officers of a right to permanent promotion under the City’s civil service laws. Construction of a city charter and city ordinances, similar to statutory construction, is a question of law. See Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802 (Tenn.2000) (citations omitted). Our principal goal in statutory construction is to give effect to the intent of the legislature. Hawks v. City of Westmoreland, 960 S.W.2d 10, 16 (Tenn.1997). “Legislative intent or purpose is to be ascertained primarily from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language.” Carson Creek Vacation Resorts, Inc. v. State, Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn.1993) (citation omitted). It is not within the province of the courts to alter or amend a statute. Gleaves, 15 S.W.3d at 803 (Tenn.2000) (citations omitted). Similarly, the judiciary should not substitute its own policy judgment for that of the legislature. Id. (citation omitted). It is our duty to interpret and enforce the enactment as written. Id. (citation omitted).

The officers cite two provisions as requiring their permanent promotions to lieutenant colonel. Memphis City Charter section 250.1 provides:

All applicants for employment in positions protected by this article shall be subjected to competitive job-related examinations under such rules and regulations as may be adopted by the Director of Personnel. The examinations to be provided for shall be of a practical nature and relate to such matters as will fairly test the relative competency of the applicant to discharge the duties of the particular position.

Memphis City Ordinance section 3-8-4 similarly provides:

A. All applicants for employment in positions protected by Sections 3-8-2 through 3-8-6 shall be subjected to competitive job-related examinations under such rules and regulations as may be adopted by the director of personnel.
B. The examinations to be provided for shall be of a practical nature and relate to such matters as will fairly test the relative competency of the applicant to discharge the duties of the particular position. No question in any examination shall relate to political or religious opinions or affiliations. The examination shall be conducted and controlled by the director of personnel.

The officers would have this Court read these provisions as prohibiting the appointment of acting personnel and requiring the permanent promotion of the next eligible civil service employee whenever a personnel director intends, even if only temporarily, to fill a vacant position.

We find nothing in either provision to support the officers’ position. Memphis City Charter section 250.1 and Memphis City Ordinance section 8-8-4 do little more than provide civil service personnel with the right to undergo competitive testing to qualify for promotion. Current practice suggests that civil service personnel also have a right, or- at the very least an expectation, to receive permanent promotion in the rank-order of an active promotion roster. But nothing in the language of these provisions mandates permanent promotion to a vacant position. And nothing in the language of these provisions forbids the assignment of temporary, acting personnel. Absent a civil service law to the contrary, these decisions are within the discretion of the director. See Tusant v. City of Memphis, 56 S.W.3d 10, 20 (Tenn.Ct.App.2001). The City is free to enact civil service laws that require mandatory promotion on a permanent basis if it so chooses. See Morristown Firefighters Ass’n v. City of Morristown, No. E2000-01942-COA-R3-CV, 2001 WL 274114, at *5 (Tenn.Ct.App. Mar. 20, 2001) (citing Blair v. State ex rel. Watts, 555 S.W.2d 709, 712 (Tenn.1977)) (explaining that municipalities must strictly adhere to the mandates of applicable civil service legislation when selecting personnel for civil service positions). Adoption of the officers’ position, however, would effectively rewrite the City’s civil service laws to prohibit the appointment of acting personnel and to mandate permanent promotion as the only means by which to fill an operational void, which is not the duty of this Court.

The officers next submit that the City defeated or obstructed their right to permanent promotion by appointing officers to serve in an acting capacity. Memphis City Ordinance section 3-8-5 provides, in pertinent part:

No person shall wilfully or corruptly, by himself or herself or in cooperation with any other person:
A. Defeat, deceive or obstruct any person in respect to his or her rights in relation to any examination or appointment in the classified serviced]

We are unable, however, to conclude that the City’s civil service laws provided the officers with a right to permanent promotion. Under the facts, the director afforded the officers the only right to which they were entitled: the right to undergo competitive, job-related testing. Thus, we find no violation of section 3-8-5.

Finally, the officers argue that the director discriminated against them on the basis of nonmerit factors. Memphis City Charter section 249 provides, in pertinent part:

There shall be no discrimination in the City employment of personnel because of religion, race, sex, creed, political affiliation, or other nonmerit factors, nor shall there be any discrimination in the promotion or demotion of City employees because of religion, race, sex, creed, political affiliation, or other nonmerit factors.

Memphis City Ordinance section 3-8-6 similarly provides:

There shall be no discrimination in the city employment of personnel because of religion, race, sex, creed, political affiliation or other nonmerit factors, nor shall there be any discrimination in the promotion or demotion of city employees because of religion, race, sex, creed, political affiliation or other nonmerit factors.

These provisions, however, apply to decisions to employ, promote, or demote. Neither provision pertains to the discretionary decision to fill a position permanently or temporarily. Naturally, the consideration of whether to make a permanent or temporary appointment must account for various nonmerit factors, including the best interests of the department and the citizens of Memphis. The officers’ argument on this issue is without merit.

In conclusion, the officers have failed to demonstrate that the director of the MPD violated the City’s charter or ordinances when he declined to make additional permanent promotions from the September 2005 promotion roster. The director clearly complied with provisions in the City’s charter and ordinances concerning the competitive testing of civil service employees. Further, the director made all permanent promotions pursuant to the rank-order in the active promotion roster. Nothing, however, required the director to make a permanent promotion to every position vacated before the promotion roster expired. City policy instead permitted the director, in his discretion, to make temporary, acting appointments to meet the needs of the department. At no point were the officers entitled to receive permanent promotions. Even if City policy did not permit the use of acting personnel, nothing in the City’s civil service laws required the director to promote the officers. The trial court’s decision is affirmed.

V. Conclusion

For the foregoing reasons, we affirm decision of the trial court. Costs of this appeal are taxed to the appellants, Frank Garrett, Raymond Hopkins, and William Walsh, and their surety for which execution may issue if necessary.

      . The candidates ranked twenty-first through twenty-fifth on the promotion roster had previously retired or received appointment to a higher non-civil service rank.

      . Lorene Essex, director of human resources for the City of Memphis, explained that a civil service employee appointed to serve in an "acting” capacity is permitted to serve temporarily at a higher rank. Acting personnel receive a temporary pay increase pursuant to the City's "Employees in an Acting Capacity” policy, but serve at the sole discretion of the personnel director and may be removed for any reason. The use of personnel in an acting capacity, which is common in all divisions of Memphis’ city government, allows a personnel director greater discretion in filling an operational void. For example, three of the first seven majors selected to serve in an acting capacity in this case were not eligible for permanent promotion to lieutenant colonel and were not on the active promotion roster. Director Essex testified that the use of civil service personnel in an acting capacity is valid even when there is an active promotion roster.