author: ROBERT G. DOWD, JR, Judge.

text:
    Jean L. GUFFEY, Appellant, v. CENTER FOR WOMEN IN TRANSITION, INC. and Division of Employment Security, Respondents.
    No. ED 93570.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 20, 2010.

      Jean L. Guffey, Pacific, MO, pro se.
    Kate M. Heideman, St. Louis, MO, Jeannie D. Mitchell, Jefferson City, MO, for respondent.
   ROBERT G. DOWD, JR, Judge.

Jean Leslie Guffey (“Claimant”) appeals from the decision of the Labor and Industrial Relations Commission (“the Commission”) finding Claimant was disqualified from receiving unemployment compensation. Claimant argues the Commission erred in determining she voluntarily terminated her employment because there was insufficient evidence to support the fact that Claimant voluntarily terminated her employment on December 4, 2008. We reverse and remand.

Claimant was employed by the Center for Women in Transition (“CWIT”) until December 4, 2008. Claimant was the development director and had worked at CWIT for five and one-half years. Claimant reported to Nancy Kelley (“Kelley”), who, as executive director, also was a member of the board of directors (“the board”). On December 2, 2008, the board voted to eliminate Claimant’s position. Kelley was charged with the responsibility of notifying Claimant. Before Kelley could notify Claimant, a board member informed Claimant that her position would be eliminated by the end of the week.

Claimant subsequently called Kelley and stated “I understand that my time of employment has just about come to an end here.” Before Kelley responded, the call was interrupted. Claimant then became a disruption in the office as she told others about her termination.

Carl Beckman (“Beckman”), the director of finance and operations, called the board president to ask how to handle the situation. Beckman could not contact Kelley because she was on jury duty. Beckman told Claimant, pursuant to the board president’s instructions, that she should go home for the day. Beckman testified he did not say or imply that Claimant was fired, but only told her to go home for the day. However, Claimant gave Beckman her work credit card, keys, and cell phone. Claimant also gave another co-worker a summary of the projects she was working on. Claimant did not speak to Kelley again before leaving CWIT. Lastly, the record shows Claimant did not return to work the next day, Friday, December 5, 2008.

Claimant subsequently filed a claim for unemployment compensation. A Deputy at the Division of Employment Security determined Claimant was disqualified for benefits from December 14, 2008 because she left work with CWIT voluntarily without good cause attributable to her work on December 4, 2008. The Deputy further noted Claimant quit because her job was going to be eliminated, but she left before she was told her job was officially eliminated.

Claimant appealed the Deputy’s determination to the Appeals Tribunal, arguing that she did not voluntarily leave, but rather that she was fired. The Appeals Tribunal found Claimant’s separation from work at CWIT was “personal and voluntary and not with good cause,” affirming the Deputy’s determination.

Claimant then filed an application for review with the Commission. In her application for review, Claimant included statements from two co-workers, Mallory Rusch and Katie Boyne, regarding the ending of her employment at CWIT. The Commission found Claimant’s application for review also alleged facts that, if true, could have affected the timeliness of the application for review. The Commission then remanded the matter to the Appeals Tribunal for a new hearing and instructed the Appeals Tribunal to “fully develop the evidence regarding the allegations in the [ajpplication for [rjeview” and to “return the entire record to the Commission.”

The Appeals Tribunal held a hearing on the issue of the timeliness of Claimant’s application for review.

The Commission subsequently issued a decision finding Claimant’s application for review was timely and affirming and adopting the decision of the Appeals Tribunal, which found Claimant was not entitled to unemployment compensation. This appeal follows.

Our review in this case is governed by the provisions of Section 288.210, RSMo 2000. Clement v. Kelly Services. Inc., 277 S.W.3d 327, 329 (Mo.App. E.D.2009). Section 288.210 provides, in pertinent part:

The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

Thus, under Section 288.210, the factual findings of the Commission are conclusive if, absent fraud, they are supported by competent and substantial evidence, and review of the Commission’s decision by this court is confined to questions of law. Clement 277 S.W.3d at 329. We are not bound by the Commission’s conclusions of law or its application of law to facts, and questions of law are reviewed independently. Id.

Both of Claimant’s points on appeal assert the Commission’s decision is not supported by competent and substantial evidence. However, Claimant’s main argument is that the Commission’s decision was not suppoi’ted by competent and substantial evidence because the Appeals Tribunal failed to “develop the evidence regarding the allegations in the [a]pplieation for [r]eview.” We find this argument to be dispositive.

In her application for review, Claimant asserted that statements from two of her co-workers, Mallory Rusch and Katie Boyne, would substantiate her claim that she was terminated and did not voluntarily quit her employment. After her application for review was filed, the Commission, in a remand order, noted that Claimant had alleged facts that, if true, may bear upon the timeliness of the application for review. The Commission then ordered the ease to be remanded to the Appeals Tribunal for a new hearing. The remand order directed the Appeals Tribunal to “fully develop the evidence regarding the allegations in the [a]pplication for [rjeview.” The Appeals Tribunal was also ordered to “return the entire record to the Commission.”

In its subsequent decision, the Commission stated “the Appeals Tribunal conducted the remand hearing addressing only the issue of claimant’s timeliness in filing [her] Application for [r]eview.” However, as noted above, the Commission’s remand order stated the Appeals Tribunal was to fully develop the evidence regarding the allegations in the application for review.

The application for review included the evidence Claimant sought to have considered, which consisted of a statement by Mallory Rusch and a statement from Katie Boyne. However, there is no evidence that Appeals Tribunal “fully developed]” this evidence or that it even considered this evidence. Similarly, thé Commission did not specifically reference this evidence in its decision.

In Webb v. Labor and Indus. Relations Com’n of Missouri, Div. of Employment Sec., 674 S.W.2d 672, 673-74 (Mo.App. W.D.1984), an affidavit attached to the petition for review in the circuit court presented prima facie good cause for an appellant’s failure to appear at a hearing. The court found when an applicant’s application for review before the Commission attempted to excuse her non-appearance at the appeals hearing, it would have been appropriate for the Commission either to hear evidence on that point or to remand the same to the appeals tribunal for that purpose. Id. at 674. The court then remanded the case to the circuit court to be in turn remanded to the appeals tribunal for a hearing on the question of claimant’s good cause for her non-appearance, upon due notice to the claimant. Id.

Similarly, in this ease, the Commission remanded the matter to the Appeals Tribunal to look into both the timeliness and the allegations in the application for review. The Appeals Tribunal only looked into the timeliness of the application for review. Therefore, we must now remand the case to the Commission so that it can again remand the case to the Appeals Tribunal so that it can fully develop the evidence on the allegations in the application for review, including specifically the statements of Mallory Rusch and Katie Boyne.

Therefore, because the Commission did not have before it a complete evidentiary record, we cannot say there was sufficient competent evidence in the record to support its decision.

The decision of the Commission is reversed and remanded.

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

      . Despite Claimant’s failure to adhere to the briefing requirements set forth in Rule 84.04, we will review her claim ex gratia because we are able to glean the issues from her brief. See State v. Kalk, 299 S.W.3d 43, 49 Fn. 4 (Mo.App. E.D.2009).

      . All further statutory references are to RSMo 2000.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kenneth ROBINSON, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 93542.
    Missouri Court of Appeals, Eastern District, Division One.
    April 20, 2010.
    Scott Thompson, District Defender, St. Louis, MO, for appellant.
    Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before Kathianne KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Movant, Kenneth Robinson, appeals from the judgment denying on the merits his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Kevin HARMAN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93461.
    Missouri Court of Appeals, Eastern District, Division One.
    April 20, 2010.
    Timothy Forneris, St. Louis, MO, for appellant.

      Chris Koster, Jamie Pamela Rasmussen, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Kevin Harman (Movant) appeals from the judgment of the Circuit Court of St. Francois County denying, without an evi-dentiary hearing, his Rule 29.15 motion for post-conviction relief.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Raquel WOODS, Claimant/Appellant, v. EXPRESS SCRIPTS, INC., Employer, and Division of Employment Security, Respondent.
    No. ED 93458.
    Missouri Court of Appeals, Eastern District, Division One.
    April 20, 2010.
    Maria V. Perron, Martin L. Perron, The Perron Law Firm, P.C., St. Louis, MO, for appellant.
    Express Scripts, Inc., c/o Thomas & Thorngren Inc., Nashville, TN, for employer.
    Jeannie Desir Mitchell, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Claimant, Raquel Woods, appeals from an order of the Labor and Industrial Relations Commission affirming the decision of the Appeals Tribunal dismissing her appeal from the deputy’s determination as untimely. The order of the Labor and Industrial Relations Commission is supported by competent and substantial evidence on the whole record. A written opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.

We affirm the order of the Labor and Industrial Relations Commission pursuant to Rule 84.16(b). The Supplemental Legal File is stricken.


text:
    James HERRON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93156.
    Missouri Court of Appeals, Eastern District, Division One.
    April 20, 2010.
    Mark A. Grothoff, Columbia, MO, for appellant.
    Chris Koster, John W. Grantham, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

James Herron (“Movant”) appeals from the judgment of the motion court denying his motion for post-conviction relief under Rule 29.15 following an evidentiary hearing. Movant contends that the motion court clearly erred in denying his motion for post-conviction relief.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


author: CLIFFORD H. AHRENS, Judge.

text:
    TITLE PARTNERS AGENCY, LLC, Plaintiff/Respondent, v. Patrick DORSEY, Defendant/Appellant.
    No. ED 93161.
    Missouri Court of Appeals, Eastern District, Division One.
    April 20, 2010.

      Robert J. Maurer, Clayton, MO, for appellant.
    Roger J. Selsor, Clayton, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

Patrick Dorsey (“Dorsey”) appeals from the judgment of the trial court that awarded damages to Title Partners Agency LLC for its action for claims of unjust enrichment, fraudulent misrepresentation, and money had and received. Because there is no final, appealable judgment, we dismiss the appeal.

Dorsey was appointed the personal representative of the estate (“Estate”) of his mother, Sharon Dorsey, following her death on November 28, 2001. The will was contested by one of Dorsey’s siblings, and the will contest was not resolved until 2005 after a trial and appeal. See Dorsey v. Dorsey, 156 S.W.3d 442 (Mo.App.2005). Among the assets of the Estate was real property located at 7163 Princeton Avenue (“Property”) in St. Louis County, Missouri. Dorsey received an offer for the Property in June 2007 from Kanefield Properties, Inc., a Missouri real estate broker, which he accepted on behalf of the Estate on June 21, 2007. The sale of the Property closed on July 23, 2007. At the closing, Dorsey executed an affidavit that there were no loans or mortgages on the Property. In fact, there was an outstanding second deed of trust on the Property on which Dorsey had made several payments as personal representative of the Estate. A title search by Title Partners Agency, LLC (“Title Partners”), conducted for the buyer of the Property, did not find this second deed of trust. At the closing, no money was withheld to pay off the second deed of trust, held at the time by Wachovia Mortgage Corporation. Title Partners ultimately paid Wachovia the sum of $6,688.77 to satisfy the debt owed on the second deed of trust.

Thereafter Title Partners filed a petition, subsequently amended, against Dorsey individually and in his capacity as personal representative of the Estate, and also against the devisees of the last will and testament of Sharon Dorsey (“Devi-sees”) according to the St. Louis County Probate records. Title Partners’ amended petition asserted claims based on breach of contract, unjust enrichment, fraudulent misrepresentation, and money had and received. Apparently process was served only on Dorsey. However, Robert Maurer (“Counsel”) entered his appearance on behalf of all the defendants. Counsel filed two motions to dismiss for failure to state a claim upon which relief could be granted, which the trial court denied. Counsel thereafter filed an answer on behalf of all defendants. In January 2009, trial briefs with accompanying exhibits, as well as proposed judgments, were filed by Dorsey and by Devisees. The matter was tried in a bench trial on April 15, 2009. The trial court entered judgment in favor of Title Partners against Dorsey only, awarding Title Partners a total of $6,456.23 plus court costs.

Dorsey now appeals from this judgment.

Dorsey asserts four points of error. However, this Court must first determine, sua sponte, whether it has authority to address the merits of the appeal. Hall v. Wal-Mart Stores, Inc., 287 S.W.3d 714, 715 (Mo.App.2009); see also J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009) (addressing the distinction between jurisdiction and authority). There must be a final judgment in order for appellate review, and where the judgment that is being appealed from is not final, this Court lacks authority and must dismiss the appeal. Section 512.020 RSMo 2000; see Bannister v. Pulaski Financial Corp., 255 S.W.3d 538, 541 (Mo.App.2008). A judgment that is final and appealable disposes of all issues and all parties in the litigation, and leaves nothing for future determination. Bannister, 255 S.W.3d at 541. Any judgment as to fewer than all claims or all parties does not end the action, which makes it subject to the trial court’s revision at any time until final judgment. Rule 74.01(b); Goodson v. National Sports and Recreation, Inc., 136 S.W.3d 98, 99 (Mo.App.2004). The trial court may certify for appeal a judgment as to fewer than all parties or all claims by expressly designating that “there is no just reason for delay.” Rule 74.01(b).

In the present case, the record does not indicate that the Devisees were ever dismissed from the case. The trial court did not expressly designate in its judgment that “there is no just reason for delayf,]” and therefore its judgment is still subject to revision and is not a final, ap-pealable judgment. See Goodson, 136 S.W.3d at 99. Accordingly, the appeal must be dismissed for want of a final judgment. Id.

Appeal dismissed.

KATHIANNE KNAUP CRANE, P.J, and NANNETTE A. BAKER, J, concur.

      . Title Partners dismissed the breach of contract claim.

      . Both parties acknowledged in oral argument before this Court that claims as to the Devisees other than Dorsey had not been disposed of by the trial court.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Cortez MCDOWELL, Defendant/Appellant.
    No. ED 92715.
    Missouri Court of Appeals, Eastern District, Division One.
    April 20, 2010.

      Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for respondent.
    Christopher A. Pickett, St. Louis, MO, Gail G. Renshaw, Wood River, IL, for appellant.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Defendant, Cortez McDowell, appeals from the judgment entered upon a jury verdict finding him guilty of first-degree robbery, in violation of section 569.020 RSMo (2000). The trial court found defendant to be a prior and persistent offender and sentenced him to fifteen years imprisonment. No error of law appears and no jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the reasons for this order.

The judgment is affirmed in accordance with Rule 30.25(b).


author: PATRICIA L. COHEN, Judge.

text:
    Diallo C. DAVIDSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93050.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 20, 2010.

      Melinda K. Pendergraph, Assistant Public Defender, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Diallo Davidson (Movant) appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion. Movant first asserts that the motion court clearly erred in denying his claim, after a hearing, that trial counsel was ineffective for failing to object to Mov-ant wearing shackles during the trial without the trial court finding that Movant was a security threat. Additionally, Movant asserts that the motion court clearly erred in denying him an evidentiary hearing on his claims that trial counsel was ineffective for failing to: impeach a key State witness with documentary evidence; object to or file a motion to suppress a State witness’s identification of Movant based on a photograph of Movant published in a newspaper and failing to object to the admission of the newspaper itself; and allow Movant to testify at trial. We affirm.

Background

The evidence at Movant’s trial established the following: On January 5, 2004, Movant purchased a single pill of what he believed to be synthetic heroin. Movant tested the pill but determined that it was not actually synthetic heroin. Movant then pursued the seller and his two companions in a high-speed car chase through the City of St. Louis. Movant’s girlfriend, Hollie Pruitt, and their son were also in the car with Movant. Movant eventually cornered the three men’s car on a dead-end street. Movant pulled a gun from his waistband and shot repeatedly at the car. The seller of the pill died from a single gunshot wound to his cervical spine. Mov-ant also wounded the driver, Kevin Page. The third man fled the scene apparently unwounded.

The State charged Movant with one count of murder in the first degree, two counts of assault in the first degree, and three counts of armed criminal action. Before trial, Movant’s trial counsel filed a motion in limine to prevent the State from referencing Movant’s arrest for the murders of two other men in connection with Page’s identification of Movant as the shooter. Trial counsel expected Page to testify that he recognized Movant during the shooting because Movant had been pictured in a newspaper with the two murdered men. Page remembered the photographs because he had been friends with the two victims. The photographs had appeared in a 2002 edition of the Evening Whirl, a St. Louis “Crime Fighting Publication.” The trial court ruled that Page could refer to the photographs but not to the underlying murders.

During jury selection, the trial court discovered that the sheriff had placed leg shackles on Movant because of security concerns without the trial court’s prior approval. The restraints consisted of a leg brace underneath Movant’s clothing and leg shackles with a connecting chain on the outside of Movant’s clothing. The trial court determined that the shackles were not visible to the jury and permitted the shackles to remain on Movant. Trial counsel did not object to the shackling but moved chairs in front of counsel’s table to obscure the jury’s view of the shackles.

At trial, the State called seven witnesses including Pruitt and Page. During cross-examination, Movant’s trial counsel attempted to impeach Pruitt’s testimony by suggesting the State and police coerced Pruitt’s testimony. To that end, trial counsel introduced prior inconsistent statements from Pruitt’s pre-trial deposition. Trial counsel also cross-examined Pruitt regarding inconsistent statements made during the police investigation. Trial counsel did not confront Pruitt with the letters she wrote to Movant while Movant was in jail. Trial counsel also chose not to use jail records demonstrating, contrary to Pruitt’s pre-trial deposition testimony, that she visited Movant in jail after his arrest.

Page testified that during the car chase and shooting he recognized Movant from a picture he had seen in the Evening Whirl several years previously that showed Mov-ant with two of Page’s friends. During Page’s testimony, the State showed him the newspaper. Page identified each of the people in the picture, including Mov-ant. Over trial counsel’s objection, the State moved for admission of the newspaper, and the trial court admitted it.

After the State rested and Movant called his only witness, the trial court examined Movant regarding whether he planned to testify. The trial court told Movant that it did not intend to interfere in his decision to testify, that the decision was solely Movant’s, and that unless the trial court heard from Movant, it assumed that Movant was not going to testify. Movant acknowledged that he understood that the decision was his and that he did not intend to testify. Movant did not testify-

The jury convicted Movant of all six counts. The trial court sentenced Movant to life without parole, three consecutive life sentences and fifteen and ten years concurrent to the life sentences. At the sentencing hearing, the trial court examined Movant to determine if he received effective assistance of counsel. Movant stated only that trial counsel had failed to: (1) contact witnesses that Movant identified, and (2) introduce evidence of letters to Pruitt that suggested the State coerced her testimony. Movant did not complain that trial counsel did not allow him to testify. This Court affirmed Movant’s conviction on appeal. State v. Davidson, 242 S.W.3d 409 (Mo.App. E.D.2007).

Movant timely filed a pro se Rule 29.15 motion. Appointed counsel later amended the motion incorporating all of Movant’s pro se allegations. In his amended motion, Movant alleged fifteen separate incidents of ineffective assistance of counsel and requested an evidentiary hearing on each of the claims. The motion court granted an evidentiary hearing on three of Movant’s claims, including trial counsel’s failure to object to the shackling of Mov-ant. Trial counsel testified at the hearing, and post-conviction counsel submitted Movant’s deposition. In its judgment, the motion court denied all of Movant’s claims of ineffective assistance of counsel. This appeal followed.

Standard of Review

Our review of the motion court’s denial of a Rule 29.15 motion is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009); Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005). The motion court’s findings and conclusions are clearly erroneous only if a review of the entire record leaves this court with the definite and firm impression that a mistake has been made. Zink, 278 S.W.3d at 175. In making this determination, we presume the motion court’s findings are correct. Id.

Discussion

To prevail on a claim of ineffective assistance of counsel, a movant must show both that counsel failed to meet the standard of a reasonably competent attorney under similar circumstances and that this failure prejudiced the movant. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). However, there is a strong presumption that trial counsel acted professionally. Id.; Williams v. State, 168 S.W.3d 433, 439 (Mo. banc 2005). To establish prejudice, the movant must show that but for counsel’s deficient performance, there is a reasonable probability that the outcome of the trial would have been different. Smith v. State, 276 S.W.3d 314, 316 (Mo.App. E.D.2008). The movant must meet his or her burden by a preponderance of the evidence. Zink, 278 S.W.3d at 175. If the movant cannot show either a deficient performance or prejudice, then this Court need not consider both. Smith, 276 S.W.3d at 316.

To obtain an evidentiary hearing, a movant must show that: (1) he alleged facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the record; and (3) the matters complained of resulted in prejudice to the movant. Forrest v. State, 290 S.W.3d 704, 715-16 (Mo. banc 2009). An evidentiary hearing is not required when the record conclusively shows that a movant is not entitled to relief. Rule 29.15(h); Barnett v. State, 103 S.W.3d 765, 770 (Mo. banc 2003).

1. Shackling

In his first point on appeal, Movant argues that the motion court clearly erred in denying his claim, after a hearing, that trial counsel was ineffective because she did not object to the trial court’s failure to find that Movant posed a security risk before the sheriff shackled Movant. The Due Process Clause generally prohibits the use of visible shackles on a defendant during the guilt and sentencing phases of a trial. Deck v. Missouri, 544 U.S. 622, 629-33, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). The Supreme Court in Deck stated that “where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation.” Id. at 635, 125 S.Ct. 2007. The Fifth and Fourteenth Amendments prohibit the use of visible shackling because it “undermines the presumption of innocence and the related fairness of the factfinding process.” Id. at 630, 125 S.Ct. 2007. However, the prohibition on shackling during a trial is limited to restraints that are actually visible to the jury. Zink, 278 S.W.3d at 185-86. Visible shackles can also be used if the trial court determines, in its discretion, that there is a specific state interest, such as the potential for escape or violence, in using the restraints on the instant defendant. Deck, 544 U.S. at 629, 125 S.Ct. 2007.

During the trial, the sheriff placed restraints on Movant -without the trial court’s permission or knowledge. The restraints consisted of a leg brace underneath Mov-ant’s clothing and shaekles around his ankles with a connecting chain on the outside of Movant’s clothing. After discovering that Movant was wearing restraints, the trial court stated that the restraints were not visible to the jury. Trial counsel did not object but moved chairs in front of the defense table after expressing concern that a juror could potentially see the restraints from certain angles.

At the evidentiary hearing on this claim, trial counsel testified that the restraints were not visible to the jury and that no obvious sounds came from the shackles. In Movant’s deposition, he testified that the jury probably could not have seen the shackles and that he was not sure if the jury heard or recognized the noise of the shackles. The motion court found that the restraints were not visible to the jury and denied Movant’s claim.

The record reflects that both trial counsel and Movant established that the shackles were not actually visible to the jury. The Constitutional protections for criminal defendants discussed in Deck do not apply if the shackles were not, in fact, visible to the jury. Deck, 544 U.S. 622, 125 S.Ct. 2007; Zink, 278 S.W.3d at 185-86. Because the shackles were not actually visible, the trial court did not need to make a finding that Movant was a security risk. The motion court, therefore, did not clearly err in denying Movant’s claim because Movant failed to establish that any prejudice resulted from trial counsel’s failure to object to the shackling. Point denied.

2. Impeachment of Pruitt

In his second point on appeal, Movant argues that the motion court clearly erred in denying him a hearing on his claim that trial counsel was ineffective for failing to impeach Pruitt’s testimony with her letters and with jail records allegedly demonstrating that Pruitt had a motive to fabricate her testimony and had actually lied. Trial counsel’s decisions regarding trial strategy do not generally provide a basis for a claim of ineffective assistance of counsel. Forrest, 290 S.W.3d at 708.

Trial counsel’s decision as to the extent of the impeachment of a witness is a matter of trial strategy. White v. State, 939 S.W.2d 887, 897 (Mo. banc 1997). “In virtually every case, the extent of cross-examination must be left to the judgment of counsel.” Id. Moreover, trial counsel’s failure to impeach a witness does not alone constitute ineffective assistance of counsel. Id. To establish ineffective assistance for counsel’s failure to impeach a witness, the movant must show that the impeachment of the witness would have provided the defendant a viable defense or otherwise changed the outcome of the trial. Black v. State, 151 S.W.3d 49, 55 (Mo. banc 2004); Roberts v. State, 232 S.W.3d 581, 585 (Mo.App. E.D.2007). Impeachment testimony that negates an element of the crime for which the movant was convicted provides a viable defense. Whited v. State, 196 S.W.3d 79, 82 (Mo.App. E.D.2006).

At trial, Pruitt admitted that she had three prior convictions for drug offenses in response to questioning by Movant’s trial counsel. Trial counsel also used a prior inconsistent statement from Pruitt’s pretrial deposition to impeach her testimony. Trial counsel elicited an admission from Pruitt that she had changed her version of the events during the course of the police investigation. Pruitt admitted that she only changed her story after the police had confronted her with information they already knew about the crime.

Although the motion court did not order an evidentiary hearing on these claims, the motion court permitted Movant’s post-conviction counsel to question trial counsel about the letters during the evidentiary hearing on Movant’s other claims. Trial counsel testified that prior to trial she reviewed the letters and concluded that they did not contain any useful impeachment material. Consistent with trial counsel’s undisputed testimony, the motion court found that trial counsel made a strategic decision not to use the letters at trial. The motion court also noted that trial counsel conducted an extensive cross-examination of Pruitt regarding her prior convictions, prior inconsistent statements, and her motives to lie. Given the record, the motion court properly denied Movant a hearing on his claim that trial counsel was ineffective in failing to use Pruitt’s letters for impeachment purposes.

The motion court also properly denied without a hearing Movant’s claim of ineffective assistance based on the jail records because Movant failed to allege facts warranting relief. Forrest, 290 S.W.3d at 715-16. The jail records established that Pruitt lied during her deposition about when she had last spoken with Movant. This evidence would neither have provided Movant with a viable defense nor changed the outcome of the trial. Roberts, 232 S.W.3d at 585. Accordingly, Movant failed to plead facts entitling him to relief. Point denied.

3. Page’s Identification of Movant

In his third point on appeal, Movant claims that the motion court clearly erred in denying him a hearing on his claim that trial counsel was ineffective for failing to either file a motion to suppress or object to Page’s identification of Movant based on the photograph of Movant in the Evening Whirl. In his claim, Movant also contends that trial counsel was ineffective for her failure to object to the admission of the newspaper itself. Movant argues that because of the Evening Whirl’s reputation, any reference to Movant’s picture in the Evening Whirl was improper evidence of Movant’s prior bad acts. Movant also alleges that improper police conduct tainted Page’s identification. Movant finally argues that trial counsel should have objected to the admission of the newspaper because it improperly bolstered Page’s testimony.

As a preliminary matter, we cannot address Movant’s claim regarding trial counsel’s failure to object to Page’s identification of Movant on the basis of improper police tactics. We are unable to review claims that were not properly presented to the motion court in the Rule 29.15 motion. Goodwin v. State, 191 S.W.3d 20, 41 (Mo. banc 2006); Rhodes v. State, 157 S.W.3d 309, 315 (Mo.App. S.D.2005). In his amended Rule 29.15 motion, Movant did not allege that Page’s identification was improperly suggestive because of improper police tactics.

Generally, the State may not introduce evidence of uncharged crimes or other bad acts by the defendant to demonstrate the defendant’s predisposition to commit crimes. State v. Sheridan, 188 S.W.3d 55, 65 (Mo.App. E.D.2006). This rule prevents the State from introducing any evidence that “shows the defendant committed, was accused of, was convicted of, or definitely was associated with the crime.” Id. However, vague or speculative references to the defendant’s involvement in other crimes do not constitute evidence of the defendant’s direct association with a crime. State v. McMilian, 295 S.W.3d 537, 540 (Mo.App. W.D.2009); Sheridan, 188 S.W.3d at 65. Counsel has no duty to object to admissible evidence or make other non meritorious objections. Jackson v. State, 205 S.W.3d 282, 288 (Mo.App. E.D.2006); State v. Plummer, 860 S.W.2d 340, 353 (Mo.App. E.D.1993).

Before trial, Movant’s trial counsel filed a motion in limine to prevent the State from eliciting testimony that connected Movant to two prior murders on the grounds of relevance and unfair prejudice. Movant had been pictured in an Evening Whirl article regarding two murders for which Movant had been arrested. Movant expected that Page would testify that he recognized Movant during the shooting because of the article. The trial court ruled that the State could use the photograph as part of Page’s identification but could not mention the murders.

At trial, Page testified that he recognized Movant as the shooter because Page had seen Movant’s picture in the Evening Whirl along with two other men. In response to the State’s questioning, Page identified all of the men pictured, including Movant. The State then moved for admission of the newspaper. Movant’s trial counsel stated that she renewed his earlier objection, but the trial court admitted the evidence over Movant’s objection. After the State finished its presentation of evidence, it requested permission to pass the exhibits including the newspaper to the jury. Trial counsel objected, but the trial court allowed a copy of the photographs to be passed with the references tb the murders redacted. No evidence was introduced that directly connected Movant to the earlier murders.

The motion court properly denied Mov-ant a hearing on the grounds that the record conclusively refuted Movant’s allegations because trial counsel had filed a motion in limine, had objected at trial, and included the claimed error in Movant’s motion for new trial. The trial transcript reveals that contrary to Movant’s claims, trial counsel did, in fact, object when the State moved for admission of the newspaper.

The motion court also properly denied Movant an evidentiary hearing on his claim that trial counsel was ineffective for failing to object to evidence of prior bad acts because Movant failed to allege facts warranting relief. Forrest, 290 S.W.3d at 715-16. In the absence of a specific connection to a crime, Movant’s association with the Evening WhiRL is, if anything, merely a vague reference to criminal activity and is insufficient to connect Movant with prior bad acts. Sheridan, 188 S.W.3d at 65. Because the references to the newspaper were not evidence of prior bad acts, trial counsel cannot be held to be ineffective for failing to object. Jackson, 205 S.W.3d at 288; Plummer, 860 S.W.2d at 353. Point denied.

4. Movant’s Waiver of Right to Testify

In his final point on appeal, Mov-ant claims that the motion court clearly erred in denying him a hearing on his claim that trial counsel was ineffective for failing to allow Movant to testify. Movant alleges that trial counsel told him that he could not testify because the jury would presume he was guilty because of his shackles. Movant argues the record does not conclusively refute this allegation as the trial court’s warnings about the right to testify were ambiguous.

Criminal defendants have a fundamental right to testify in their own defense. Meuir v. State, 182 S.W.3d 788, 793 (Mo.App. S.D.2006). Only the defendant can waive the right to testify. Id. When a movant alleges ineffective assistance of counsel based on a failure to call the defendant to testify, the motion court must grant an evidentiary hearing unless the record shows that the defendant made a knowing and voluntary waiver of the right to testify. Id. However, if the defendant did in fact make a knowing and voluntary waiver, then trial counsel’s advice on whether or not to testify generally will be a matter of trial strategy. Id. Matters of trial strategy do not provide a basis for post-conviction relief. Zink, 278 S.W.3d at 176. For the trial court to grant an evi-dentiary hearing, the movant must also allege facts regarding the proposed testimony. State v. Starks, 856 S.W.2d 334, 336 (Mo. banc 1993); Allen v. State, 50 S.W.3d 323, 327 (Mo.App. W.D.2001).

After the State rested and Movant called his only witness, Movant’s trial counsel stated that she believed that Mov-ant did not want to testify. Before submitting the case to the jury, the trial court questioned Movant regarding his right to testify:

THE COURT: Mr. Davidson, it’s not my desire to interfere with any decisions you and your lawyer make, but we need to be clear on one thing. You have the right to testify or not to testify, as you alone choose. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And so unless I hear something to the contrary from you, I will assume that you and your lawyer are in agreement about whether you testify or not, okay?
THE DEFENDANT: (Nodding head affirmatively).
THE COURT: Do you understand me?
THE DEFENDANT: Yes, I understand.

After the trial court sentenced Movant, it examined Movant regarding the assistance of his counsel. During this examination, Movant did not complain about trial counsel’s failure to call him as a witness.

In his amended Rule 29.15 motion, Mov-ant claimed that trial counsel was ineffective for refusing to allow Movant to testify but did not allege any facts describing the proposed testimony. The motion court found that the trial court had informed Movant of his right to testify and that Movant “unequivocally indicated he understood his right and that he accepted trial counsel’s decision not to call him as a witness.” The motion court denied the claim without a hearing on the grounds that Movant’s claim was refuted by the record, which showed that the trial court informed Movant of his rights and Movant acquiesced in counsel’s decision not to call him as a witness.

Relying on State v. Blewett, Movant argues that the trial court’s warnings and questions were ambiguous. 853 S.W.2d 455, 460-61 (Mo.App. W.D.1993). In Blewett, the court remanded for an eviden-tiary hearing because the motion court determined that it was in the defendant’s best interests not to testify and the trial court’s questioning indicated that the defendant had not yet made a decision to testify. Id. By contrast, in this case, the trial court’s questioning showed that it believed Movant had already made a decision not to testify and that he understood his right to testify. The record conclusively refutes Movant’s allegations.

Movant also cannot show prejudice because he failed to allege facts about the content of his proposed testimony. A mere allegation of prejudice without details about the proposed testimony is insufficient to warrant an evidentiary hearing. Starks, 856 S.W.2d at 337. Accordingly, Movant failed to allege facts sufficient to show a reasonable probability that the outcome of his trial would have been different. Point denied.

Conclusion

The judgment of the motion court is affirmed.

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

      . All rule references are to Mo. Sup.Ct. R. (2009), unless otherwise indicated.


text:
    Justin DELANEY, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. ED 93657.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 20, 2010.
    Justin Delaney, St. Louis, MO, pro se.
    Shelly A. Kintzel, Department of Labor and Industrial Relations, Division of Employment Security, Jefferson City, MO, for Respondent Division of Employment Security.
    Before: KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Justin Delaney (Claimant) appeals from the decision of the Labor and Industrial Relations Commission (the Commission) finding that he voluntarily left his employment without good cause and disqualifying him from receiving unemployment benefits. Claimant argues on appeal that he did not voluntarily quit his job. We affirm the Commission’s decision.

We have reviewed the briefs of the parties and the record on appeal and find that the Commission’s decision was supported by sufficient competent evidence in the record. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

We affirm the Commission’s decision pursuant to Rule 84.16(b).


author: JOSEPH M. ELLIS, Judge.

text:
    Bruce A. DYE, Appellant, v. DEPARTMENT OF MENTAL HEALTH, State of Missouri, Respondent.
    No. WD 70567.
    Missouri Court of Appeals, Western District.
    April 20, 2010.

      Rebecca L. Kurz, for Appellant.
    Ronald Q. Smith, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge.
   JOSEPH M. ELLIS, Judge.

Bruce Dye appeals from the circuit court’s dismissal of his petition for review of a Missouri Department of Mental Health (DMH) administrative decision to place his name on its disqualification registry. Dye contends that the circuit court’s dismissal was erroneous. We agree and reverse.

In June 2007, while Dye worked at a DMH facility, he was notified that an investigation had been completed regarding alleged sexual abuse by Dye of a client at the facility. The DMH made a preliminary determination that the allegations were true and, after meeting with Dye, made a final determination to substantiate the findings of one count of sexual abuse against Dye. Dye was notified of his right to appeal the decision to a Hearings Administrator, which he did. He was also notified that if the Hearings Administrator upheld the DMH’s determination on appeal, Dye’s name would be placed on the disqualification registry pursuant to § 630.170.

Dye’s hearing was scheduled for October 23, 2007. In an August 9, 2007 letter, Dye received notiee of the hearing as well as information on how to request a continuance, should one be necessary. Dye did not attend the hearing, nor did he request a continuance prior to the hearing. Rather, on November 5, 2007, Dye’s counsel sent a letter to the Hearings Administrator stating that Dye did not attend the hearing because he was incarcerated. Dye requested a rescheduled hearing.

On November 6, 2007, the Hearings Administrator dismissed Dye’s appeal because he failed to show at the hearing. On November 8th, the Hearings Administrator wrote to Dye and notified him that due to his absence, the dismissal was warranted and was a final decision. The letter explained Dye’s appellate rights.

On December 4, 2007, Dye mailed a petition for review to the Jackson County Circuit Court. On December 5, 2007, Dye received a letter from the circuit court notifying him that his petition would not be processed until the court received his filing fee and his Circuit Court Form 4. On December 7, 2007, Dye mailed the filing fee and Form 4 to the circuit court. The petition for review was filed on December 10, 2007.

The DMH filed a motion to dismiss asserting that the trial court lacked subject matter jurisdiction over the case because (a) Dye’s petition for review was untimely filed; (b) notice of the petition for review was not properly served on the DMH as required by § 586.110.2; and (c) the petition failed to contain allegations required by § 536.140.2. In response, Dye denied all jurisdictional allegations raised by the DMH.

The circuit court sustained the DMH’s motion to dismiss and Dye filed a motion for reconsideration, which was sustained. On December 12, 2008, after the parties submitted briefs, the circuit court held a hearing on the DMH’s motion to dismiss and ultimately sustained the motion on the basis that Dye’s petition was not timely filed, which rendered the court unable to consider the petition due to lack of subject matter jurisdiction. Dye timely appealed.

In an appeal from judicial review of an administrative agency’s decision, we review the agency’s decision and not the circuit court’s judgment. Mo. Coalition for the Env’t v. Herrmann, 142 S.W.3d 700, 701 (Mo. banc 2004). However, we review the decision of the circuit court to grant a motion to dismiss de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008).

Dye contends that the circuit court erred in dismissing his petition for review for lack of subject matter jurisdiction. The DMH concedes the error in its brief. Under Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), the trial court’s dismissal based on lack of subject matter jurisdiction was incorrect and erroneous. In Webb, the Supreme Court of Missouri clarified that only personal and subject matter jurisdiction are recognized in Missouri- — not a third form of subject matter jurisdiction called “jurisdictional competence.” Id. at 251-54. Unlike subject matter jurisdiction, which derives directly from article V, section 14 of the Missouri Constitution, and states that “[t]he circuit courts shall have original jurisdiction over all cases and matters, civil and criminal,” matters of jurisdictional competence arise when there is a dispute over “whether the issue or parties affected by the court’s judgment [were] properly before it for resolution at that time.” Id. at 253, 254 (internal quotation and emphasis omitted).

The circuit court had subject matter jurisdiction over the case because it was a civil case and circuit courts have jurisdiction over all civil cases. Accordingly, the court erred in dismissing Dye’s petition for lack of subject matter jurisdiction. The DMH, nonetheless, argues that our analysis should not end there. Rather, according to the DMH, we should treat the issues raised in its motion to dismiss as matters directed to the court’s “authority to grant the relief sought in the petition.”

The issue is not quite that simple, however. The DMH’s motion to dismiss raised three separate grounds for dismissal, claiming that each deprived the circuit court of subject matter jurisdiction. First, it asserted the petition was not filed within thirty days of the notice of the Department’s final decision as required by § 536.110.1. The DMH now asserts that because of failure to timely file the petition, the court lacks statutory authority to hear the case, as opposed to lacking subject matter jurisdiction. It now makes a similar lack of statutory authority argument based on its second ground for dismissal, that Dye failed to notify the DMH or its attorney of record personally or by registered mail of his petition, in violation of the requirement of § 536.110.2. And finally, the DMH asserted that the petition did not contain allegations required by § 536.140.2, which generally states the grounds that may be encompassed in review of an administrative decision. This latter contention is not so much an assertion of lack of authority for the trial court to decide the case as it is a claim that the petition fails to state a claim upon which relief can be granted. In other words, it attacks the petition itself as lacking the necessary allegations to state a legally cognizable claim, not the court’s authority to rule or decide a case. This issue would normally be raised by a motion to dismiss. See Rule 55.27(a).

On the other hand, the first two claims raised by the DMH are matters in avoidance. They are directed to the circuit court’s statutory authority to go forward with hearing and decide the petition for review and, as such, are in the nature of affirmative defenses. See Rule 55.08; McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473, 477 (Mo. banc 2009). Affirmative defenses may be waived. McCracken, 298 S.W.3d at 477. However, Dye made no claim in the circuit court or in this appeal that the DMH has waived its statutory authority arguments. Accordingly, since these contentions could be renewed on remand in another motion to dismiss, and since they have been briefed and argued, we will address the DMH’s revised grounds for dismissal.

The DMH first contends that Dye’s petition for judicial review was untimely filed. Pursuant to § 536.110.1 RSMo 2000, “[pjroceedings for review may be instituted by filing a petition in the circuit court of the county of proper venue within thirty days after the mailing or delivery of the notice of the agency’s final decision.” The Missouri Supreme Court has interpreted § 536.110.1 to mean that the thirty-day period begins to run on the date of mailing. R.B. Indus., Inc. v. Goldberg, 601 S.W.2d 5, 6 (Mo. banc 1980).

In the case at bar, if the thirty-day period began running on November 6, 2007, the date of mailing, the petition for review must have been filed by December 6, 2007, to be timely. Dye mailed his petition to the Jackson County circuit court on December 4, 2007, and received a letter from the circuit court administrator’s office on December 5, 2007, notifying him that his pleading was received but would not be processed until the court received his filing fee and Form 4.

Prior case law has generally addressed this type of issue as a jurisdictional claim. After Webb, as noted supra, the issue is more accurately one of the circuit court’s authority to hear and decide the case. The reasoning of the prior decisions nevertheless remains valid. Because the filing of a Form 4 or payment of a filing fee alongside a petition for review is not a jurisdictional requirement, Dye’s petition was timely filed when the circuit court received his petition by December 5, 2007. See, e.g., Jameson v. State, 125 S.W.3d 885, 889 (Mo.App. E.D.2004) (“ ‘filing occurred on the date of receipt in the clerk’s office’ ”); Miller v. Varity Corp., 922 S.W.2d 821, 824 (Mo.App. E.D.1996) (motion timely filed if received within the statutory time limit, even if motion was date stamped on a later date); Lewis v. State, 845 S.W.2d 137, 138 (Mo.App. W.D.1993) (“[fjiling occurs when a document is delivered to the proper officer and lodged in his office”).

The Missouri Supreme Court has made clear that payment of a filing fee at a particular time is not a jurisdictional prerequisite. State ex. rel. JCA Architects, Inc. v. Schmidt, 751 S.W.2d 756, 757 (Mo. banc 1988). “The Circuit Court is without power to impose jurisdictional requirements in addition to those set out in the statutes.” Id. The DMH, recognizing the holding in Schmidt, attempts to argue that the circuit court lacked the authority to enter judgment because the filing fee and Form 4 were not filed at the same time as Dye’s petition. However, the Schmidt court specifically noted that courts may “imposfe] sanctions on litigants who do not comply with the statutes and rules.” Id. Here, like in Schmidt, the filing fee had been received by the circuit court prior to the court taking steps to dismiss the appeal. Id. Accordingly, the dismissal of Dye’s petition for review based on this factor was erroneous.

Moreover, although the Schmidt case dealt exclusively with the failure of a litigant to pay a filing fee along with his application for a trial de novo, the rationale of Schmidt applies equally to local circuit court rules prohibiting their civil records departments from filing pleadings absent the filing of an information sheet. Just as the statutory language conferring the right of a trial de novo does not mandate the filing of a fee, neither does § 536.110.1 mandate the filing of a Form 4. Neither a filing fee nor a Form 4 can be made a jurisdictional prerequisite or a statutory requirement by local circuit court rule. Id.; Puckett v. Swift & Co., 229 S.W.2d 713, 717 (Mo.App. W.D.1950)(“It is well settled that a circuit court does not have the power to adopt a rule of practice which deprives a litigant of a right given it by law, or which grants that right upon terms more onerous than those fixed by law.”).

Accordingly, the circuit court erred in dismissing Dye’s petition for review on the grounds that it was untimely filed.

The DMH’s second ground for dismissal was that Dye’s method of serving the DMH with a copy of the petition for review, by facsimile, was improper. As noted previously, the DMH now contends this deprived the circuit court of authority to hear and decide the case. The DMH asserts that § 536.110.2 requires that the adverse party or its attorney of record be served either personally or by registered mail. Section 536.110.2 provides:

No summons shall issue in such ease, but copies of the petition shall be delivered to the agency and to each party of record in the proceedings before the agency or to his attorney of record, or shall be mailed to the agency and to such party or his said attorney by registered mail, and proof of such delivery or mailing shall be filed in the case.

The DMH contends that this provision precludes facsimile notice and that Missouri courts have already interpreted the statute to require personal delivery or delivery by registered mail. We disagree.

The cases cited to by the DMH are not on point. Henderson v. Lombardi, 77 S.W.3d 109, 112 (Mo.App. W.D.2002), and State ex rel. Henze v. Wetzel, 754 S.W.2d 888, 895-96 (Mo.App. E.D.1988), involved the issue of who must be provided with notice of a petition for review under § 536.110. In discussing that issue, the Henderson court stated that “ ‘it is jurisdictional that the agency and each party of record be notified personally or by registered mail of the petition for review filed by an aggrieved party.’ ” 77 S.W.3d at 112 (quoting Wetzel, 754 S.W.2d at 895). However, because of the issues presented, both Henderson and Wetzel were emphasizing who must be provided with a copy of the petition for review, as opposed to the means or method of delivery. Neither case even discussed, much less explained, what was required to notify a party personally.

Indeed, Henderson and Wetzel are consistent with Missouri case law on this subject in that they emphasize that the primary concern in a § 536.100 case is that adverse parties receive notice, not the specific method of serving notice. See, e.g. Williamsburg Truck Plaza v. Muri, 857 S.W.2d 534, 537 (Mo.App. W.D.1993) (“Notice is less formal in a § 536.100 proceeding and is adequate as long as the party is aware of the review proceeding in sufficient time to prepare, appear and be heard.”); Reifschneider v. City of Des Peres Pub. Safety Comm’n, 776 S.W.2d 1, 3-4 (Mo. banc 1989) (“The clear purpose of the statute ... is to provide notice to the other party or parties that a petition has been filed, as well as the nature of the claim, sufficient to satisfy due process requirements.”); State ex rel. Cass County v. Dandurand, 759 S.W.2d 603, 605 (Mo.App. W.D.1988) (“We do not say that a party to a proceeding before an administrative body need not be notified that judicial review has been instituted.... Notice, however, is a different matter from the command of a complaint and summons and will be adequate if the party is made aware of the proceeding in sufficient time to prepare, appear and be heard.”).

The portion of § 536.110 requiring a filing of proof of delivery or mailing is meant to give the petitioner a method of proving that notice was given. Bresnahan v. Bass, 562 S.W.2d 385, 388-89 (Mo.App. E.D.1978). Where, as here, the opposing party admits receiving a copy of the petition, there is no need for such proof. Id. Because the primary concern of § 536.110.2 is to provide notice to the opposing party that a petition for review has been filed, sufficient to allow the opposing party to prepare, appear, and be heard on the petition, and because the DMH admits it received a copy of Dye’s petition for review, delivery of the petition for review by facsimile does not deprive the circuit court of authority to hear and decide the case.

Finally, the DMH contended, in its motion to dismiss, that Dye’s petition failed to contain any allegations under § 536.140 and that his petition should be dismissed for his failure to state a claim upon which relief can be granted. Section 536.140, dealing with the scope of judicial review, states:

2. The inquiry may extend to a determination of whether the action of the agency
(1) Is in violation of constitutional provisions;
(2) Is in excess of the statutory authority or jurisdiction of the agency;
(3) Is unsupported by competent and substantial evidence upon the whole record;
(4) Is, for any other reason, unauthorized by law;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable;
(7) Involves an abuse of discretion.
The scope of judicial review in all contested cases, whether or not subject to juridical review pursuant to sections 536.100 to 536.140, and in all cases in which judicial review of decisions of administrative officers or bodies, whether state or local, is now or may hereafter be provided by law, shall in all cases be at least as broad as the scope of judicial review provided for in this subsection!.]

In its motion to dismiss, the DMH did not cite to any authority to support its contention that Dye was required to “allege the violation of any of the seven scope of review criteria which § 536.140.2 ... requires be alleged to confer subject matter jurisdiction over the petition.” On appeal, the DMH cites only to Bird v. Missouri Board Of Architects, Professional Engineers, Professional Land, Surveyors & Landscape Architects, 259 S.W.3d 516 (Mo. banc 2008), a case cited to by Dye.

In Bird, a professional engineer petitioned for judicial review from a decision of the Administrative Hearing Commission, subjecting him to professional discipline. Id. at 518. After some previous procedural history, this court held that the circuit court was without jurisdiction over the case because Bird’s petition for review failed to raise specific issues and the court had nothing it could review. Id. at 520. Bird’s petition for review sought:

review of the findings of fact in the Final Order because it is in violation of constitutional provisions, is in excess of the statutory authority or jurisdiction of the agency, is not supported by competent and substantial evidence upon the whole record, was upon unlawful procedure, is arbitrary, capricious or unreasonable and involves an abuse of discretion.

Id. at 521. The Supreme Court reversed this Court’s decision and noted that § 536.110 “does not explicitly set forth the requirements for a sufficient petition.” Id. Finding that Bird’s petition for review mirrored the language in § 536.140.2, the Supreme Court held that Bird’s petition was sufficient to “outline the issues for the reviewing court and the adverse party.” Id.

In reliance on Bird, the DMH contends that “[although the petition does not have to specify the specific facts that support a violation of one of the seven areas of scope of review, at a minimum it has to allege at least one area from the statutory areas of the scope of review.” We disagree with the DMH’s characterization of the holding in Bird. Although the Bird court did hold that the petition for review in that case, which mirrored the language in § 536.140.2 was sufficient, the court did not hold that a successful petition for review must specifically allege at least one of the seven factors outlined in § 536.140.2. In fact, the Bird Court clearly stated that, although desirable, “a precise definition of the issues is not required by statute or rule.” Id. The Court went on to state:

In a proceeding such as this, the petition sometimes is written and filed before the full administrative record becomes available. The circuit court may require the party seeking review to specify the precise issues the party is raising. Or the circuit court may require the party seeking review to amend the petition with greater particularity.

Id. (internal citation omitted).

The DMH has failed to cite, and we are unable to find, any statute, rule, or case mandating that a petition for review specifically state one of the seven grounds in § 536.140.2 in order to avoid dismissal. Rather, we find that in order to avoid dismissal, a petition for review must outline the issues for the court and the opposing party. Dye’s petition meets this standard, and the circuit court could require Dye to specify precise issues or amend his petition if necessary. Accordingly, Dye’s failure to allege the grounds for review set forth in § 536.140.2 does not deprive the circuit court of authority to hear and decide the case.

For the foregoing reasons, the circuit court’s dismissal of Dye’s petition for review is reversed, and the cause is remanded for further proceedings.

All concur.

      . Section 630.170.1 RSMo Cum.Supp.2003 provides that any person listed on the disqualification registry "shall be disqualified from holding any position in any public or private facility or day program operated, funded or licensed by the department or in any mental health facility or mental health program in which people are admitted on a voluntary or involuntary basis or are civilly detained."

      . Pursuant to the Local Court Rules of Jackson County, a Form 4, or a Civil Filing Information Sheet, "shall be completed and attached to all initial pleadings filed.” Rule 4.2.2. "The Department of Judicial Records shall refuse to accept for filing all the initial pleadings filed that are not accompanied by a completed Form 4.” Id. Likewise, Rule 5.6.1 states that, "[t]he Department of Civil Records shall not file any cause until a deposit for fees and costs has been paid, as required by these rules.”

      .Dye mailed the Form 4 and filing fee to the circuit court on December 7, 2007, and his petition for review was filed on December 10, 2007. The DMH did not file a motion to dismiss until February 26, 2008, long after the fee and form omission had been rectified.

      .As discussed supra, this is no longer a jurisdictional requirement, but rather one of the court’s authority to proceed. Webb, 275 S.W.3d at 251-53.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Myron R. SANDERS, Appellant.
    No. WD 69576.
    Missouri Court of Appeals, Western District.
    April 27, 2010.
    Craig A. Johnston, for Appellant.
    Daniel N. McPherson, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Myron Sanders appeals his convictions for murder in the second degree, section 565.021, RSMo 2000, armed criminal action, section 571.015, RSMo 2000, and resisting arrest, section 575.150, RSMo Cum. Supp.2007. He contends that there was insufficient evidence to support a conviction for resisting arrest and that the trial court plainly erred in allowing a forensic examiner to testify that another examiner verified her fingerprint analysis. Because a published opinion would have no prece-dential value, a memorandum has been provided to the parties.

The convictions are affirmed. Rule 30.25(b).


text:
    Elmer C. JACKSON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70503.
    Missouri Court of Appeals, Western District.
    April 27, 2010.
    Margaret Johnston, for Appellant.
    Robert J. Bartholomew, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge.
   ORDER

PER CURIAM:

Elmer Jackson appeals from the denial of his Rule 24.035 motion for post-conviction relief following an evidentiary hearing in the Circuit Court of Boone County. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    Erma S. MCKINNEY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70768.
    Missouri Court of Appeals, Western District.
    April 27, 2010.
    Mark A. Grothoff, for Appellant.
    Daniel McPherson, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Erma McKinney appeals from the denial of her Rule 29.15 motion for post-conviction relief following an evidentiary hearing. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. An extended opinion would have no prece-dential value but a memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    John HAIDUSEK, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 71024.
    Missouri Court of Appeals, Western District.
    April 27, 2010.
    John Haidusek, Kansas City, MO, pro se.
    Rachel M. Lewis, Esq., Jefferson City, MO, for respondent.
    Before Division One: LISA WHITE HARDWICK, Presiding Judge, JAMES M. SMART, JR. and ALOK AHUJA, Judges.
   ORDER

PER CURIAM.

John Haidusek appeals a decision of the Labor and Industrial Relations Commission, which affirmed the dismissal of his administrative appeal on an unemployment claim. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the Commission’s final order.

AFFIRM. Rule 84.16(b).


author: VICTOR C. HOWARD, Judge.

text:
    Dona SHIFFLETTE, Appellant, v. MISSOURI DEPARTMENT OF NATURAL RESOURCES, Respondent.
    No. WD 71716.
    Missouri Court of Appeals, Western District.
    April 27, 2010.

      Randy C. Alberhasky, for Appellant.
    Emily A. Dodge, for Respondent.
    Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C. HOWARD, Judge and ALOK AHUJA, Judge.
   VICTOR C. HOWARD, Judge.

Dona Shifflette appeals the summary judgment entered in favor of the Missouri Department of Natural Resources (DNR) in her personal injury action. She contends that genuine issues of material fact existed regarding the dangerous condition exception to sovereign immunity. The judgment of the trial court is affirmed.

Ms. Shifflette sued the DNR alleging that she injured her left shoulder when she tripped and fell while exiting a building owned by the DNR. The DNR filed a motion for summary judgment invoking sovereign immunity. Ms. Shifflette responded that sovereign immunity was waived under section 537.600.1(2), the dangerous condition of public property exception. The following facts were uncon-troverted.

On May 14, 2006, Ms. Shifflette worked at the restaurant in the dining lodge at Bennett Springs State Park. The building in which the restaurant was located was owned by the DNR. When Ms. Shifflette worked at the restaurant, she parked behind the building and usually entered the building through the back door. The back door was open that day. Inside the back door of the building was a hallway with a cement floor. Outside the back door were two steps down to a sidewalk that sloped downward. The steps and sidewalk did not have a handrail. There was a half inch difference in height between the left side of the step and the right side of the step. There was a boulder and an air conditioning unit in the dirt and gravel next to the sidewalk outside the back door.

As Ms. Shifflette was walking in the hallway toward the back door at the end of her workday, she tripped and began to fall. She did not know why she tripped in the hallway or what she tripped on. She admitted that the hallway floor was not in disrepair and that it was not slippery. She did not notice anything that day about the condition of the hallway or floor that she thought caused her to fall. As she began falling, she remembered thinking that she did not want to land on the sidewalk “because I realized the fall was going through [outside the building], and my theory was I could catch myself on the boulder.” She tried to fall more in the direction of the boulder than the sidewalk because the back door was open and “[b]ecause I knew there was no stopping me, there was nothing to hold on to, I was going.” She did not land on the sidewalk but generally between the boulder and the air conditioner.

The trial court ruled that Ms. Shifflette failed to establish the second element for waiver of sovereign immunity because her injury did not result from a dangerous condition of public property. This appeal by Ms. Shifflette followed.

In her sole point on appeal, Ms. Shif-flette contends that the trial court erred in entering summary judgment in favor of the DNR on the ground that her claim was barred by sovereign immunity. She contends that genuine issues of material fact existed regarding the dangerous condition exception.

Appellate review of the grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id. at 376. Facts contained in affidavits or otherwise in support of a party’s motion are accepted as true unless contradicted by the non-moving party’s response to the summary judgment motion. Id.

A defending party may establish a right to judgment as a matter of law by showing any one of the following: (1) facts that negate any one of the elements of the claimant’s cause of action, (2) the non-movant, after an adequate period of discovery, has not and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense. Id. at 381. Once the movant has established a right to judgment as a matter of law, the non-movant must demonstrate that one or more of the material facts asserted by the movant as not in dispute is, in fact, genuinely disputed. Id. The non-moving party may not rely on mere allegations and denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate the existence of a genuine issue for trial. Id.

Sovereign immunity shields public entities from suit. § 537.600.1; State ex rel. Mo. Highway & Transp. Comm’n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998). It is waived, however, for cases involving injuries caused by a dangerous condition of public property. § 537.600.1(2); Dierker, 961 S.W.2d at 60. Sovereign immunity is not an affirmative defense but is part of the plaintiffs prima facie case. Townsend v. E. Chem. Waste Sys., 234 S.W.3d 452, 470 (Mo.App. W.D.2007). To state a claim under the dangerous condition exception, the plaintiff must allege facts that show: (1) a dangerous condition of public property; (2) the injury directly resulted from the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of harm incurred; and (4) the public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the condition. § 537.600.1(2); Dierker, 961 S.W.2d at 60; Thomas v. Clay County Election Bd., 261 S.W.3d 574, 577-78 (Mo.App. W.D.2008). “The sovereign immunity statute must be strictly construed.” Dierker, 961 S.W.2d at 61.

In granting summary judgment in favor of the DNR, the trial court found that Ms. Shifflette could not establish the second element of the dangerous condition exception, namely that her injury directly resulted from the dangerous condition. The phrase “directly resulted from” in the second requirement of section 537.600.1(2) is synonymous with “proximate cause.” Id. at 60. “The general test for proximate cause is whether the injury is the natural and probable consequence of the defendant’s negligence.” Stanley v. City of Independence, 995 S.W.2d 485, 488 (Mo. banc 1999). Each case must be decided on its own facts. Id. “Proximate cause cannot be based on pure speculation and conjecture.” Id.

In her response to the DNR’s motion for summary judgment and statement of uncontroverted facts, Ms. Shifflette did not dispute that she tripped in the hallway, that she did not know why she tripped or what she tripped on, and that the hallway was not physically defective or dangerous at the time of her fall. She contended, however, that the lack of a handrail on the doorway step caused her to fall after she tripped because she was unable to catch herself and prevent herself from falling. She further contends in her brief on appeal that the uneven step and sloping sidewalk also contributed to her loss of balance and inability to catch herself. But Ms. Shifflette’s injury did not directly result from the step or sidewalk. The undisputed facts revealed that she did not trip or fall on the steps or the sidewalk. Furthermore, speculation and conjecture would have been required to find that she would have been able to catch herself after falling through the hall and doorway, and before landing on the ground between the boulder and air conditioner, if a handrail had been installed on the steps. The record is devoid of a factual basis to support a finding that Ms. Shifflette’s injury was the natural and probable consequence of lack of a handrail on the doorway steps. See Payne v. City of St. Joseph, 135 S.W.3d 444, 451 (Mo.App. W.D.2004)(where no evidence was presented from which it could be inferred that the failure of the city to barricade a landfill transfer station caused plaintiff to fall out his employer’s truck and into the dumpsters below, plaintiff failed to make submissible case on issue of causation); Necker ex rel. Necker v. City of Bridgeton, 938 S.W.2d 651, 655 (Mo.App. E.D.1997)(allegations that city failed to make an otherwise non-defective balance beam safe by warnings or signs, barricades, mats, or supervision did not state a claim under dangerous condition exception because intangible acts such as inadequate supervision, lack of warnings or signs, and lack of barricades do not create a dangerous condition). Thus, the trial court correctly entered summary judgment in favor of the DNR. The point is denied.

The judgment is affirmed.

All concur.

      . All statutory references are to RSMo Cum. Supp.2009 unless otherwise indicated.


text:
    Troy J. DAYE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70549.
    Missouri Court of Appeals, Western District.
    April 27, 2010.
    Craig A. Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.
    Chris Roster, Attorney General, Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM.

Troy J. Daye appeals the denial of his Rule 24.035 motion after an evidentiary hearing. Daye pled guilty to one count of felony nonsupport. He was sentenced to four years in prison, but execution of the sentence was suspended and Daye was placed on five years probation. The probation was eventually revoked and his sentence executed. Daye now seeks post-conviction relief, asserting his plea was unknowing or involuntary because he was not given effective advice by plea counsel. Because Daye fails to show that his plea counsel was ineffective and fails to demonstrate that he would have gone to trial if his plea counsel had advised him differently, we affirm. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Sandrio DEJESUS-ANDUJAR, Appellant.
    No. WD 70348.
    Missouri Court of Appeals, Western District.
    April 27, 2010.
    Matthew Ward, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.

      Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Sandrio DeJesus-Andujar appeals his conviction by a jury of unlawful use of a weapon, section 571.030.1(4) RSMo, for which he was sentenced to four years’ imprisonment. Affirmed. Rule 30.25(b).