author: RICHARD B. TEITELMAN, Judge. WILLIAM RAY PRICE, JR., Chief Justice, PATRICIA BRECKENRIDGE, Judge,

text:
    Beverly BREWER, Respondent, v. MISSOURI TITLE LOANS, INC., Appellant.
    No. SC 90647.
    Supreme Court of Missouri, En Banc.
    Aug. 31, 2010.
    Rehearing Denied Nov. 16, 2010.

      Jonathan F. Andres and Martin M. Green, Green Jacobson PC in Clayton, for Appellant.
    John Campbell, Erich Vieth, John Simon, The Simon Law Firm PC in St. Louis, for Respondent.
   RICHARD B. TEITELMAN, Judge.

Missouri Title Loans, Inc., appeals a judgment finding that a class arbitration waiver contained in its loan agreement is unconscionable and unenforceable. The judgment is affirmed in part and reversed in part. The case is remanded.

FACTS

Beverly Brewer borrowed $2,215 from Missouri Title Loans. She signed a loan agreement, promissory note and security agreement. The loan was secured by the title to Brewer’s 2003 Buick Rendezvous. The annual percentage rate on the loan was 300 percent. The loan agreement included language requiring individual arbitration and a waiver of Brewer’s right to class arbitration.

Brewer filed a class action petition against Missouri Title Loans alleging violations of numerous statutes, including the Missouri merchandising practices act. Missouri Title Loans filed a motion to dismiss or to stay the claims and to compel Brewer to arbitrate her claims individually. The trial court entered a judgment finding the class arbitration waiver in the loan agreement unconscionable and unenforceable. The court ordered the claim to proceed to arbitration to determine whether it was suitable for class arbitration. Missouri Title Loans appeals.

ANALYSIS

Missouri Title Loans raises three points on appeal. It asserts that the federal arbitration act (“FAA”) preempts the trial court’s decision, that the class arbitration waiver was not unconscionable, and that the waiver is a valid and permissible exculpatory clause under Missouri law.

I. Standard of Review

The trial court heard evidence on the record at a hearing on Missouri Title Loans’ motion. The judgment will be affirmed if it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Woods v. QC Financial Services, Inc., 280 S.W.3d 90, 94 (Mo.App.2008). The issue of whether a dispute is subject to arbitration is subject to de novo review. Id.

II. Federal Arbitration Act

The FAA, 9 U.S.C. section 1, et seq., provides that valid arbitration agreements that affect interstate commerce must be enforced unless an exception applies. Kansas City Urology, P.A. v. United Healthcare Servs., 261 S.W.3d 7, 10-11 (Mo.App.2008). Although the FAA is drafted to favor the enforcement of arbitration provisions, generally applicable state law contract defenses such as fraud, duress and unconscionability may be used to invalidate all or part of an arbitration agreement without contravening the FAA. Swain v. Auto Services, Inc., 128 S.W.3d 103, 107 (Mo.App.2003) (citing Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996)).

The interplay between Brewer’s state law unconscionability defense and the FAA is informed by the recent decision in Stolt-Nielsen v. AnimalFeeds International Corp., - U.S. -, 130 S.Ct. 1758, 1776, 176 L.Ed.2d 605 (2010). In Stolt-Nielsen, the Supreme Court held that where an arbitration agreement is silent with respect to class arbitration, the parties cannot be compelled to submit the dispute to class arbitration. The Court premised its holding on the notion that arbitration is fundamentally a matter of consent, and, as a result, an arbitrator’s authority over claims and parties is limited by the scope of the arbitration agreement Id. at 1774-75. Therefore, “it follows that a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding the party agreed to do so.” Id. at 1775. Because the parties in Stolt-Nielsen had reached no agreement on the issue of class arbitration, there was no contractual basis for concluding there was consent to class arbitration. Id. Without consent, the arbitrator lacked the authority to act. Id.

In this case, the arbitration contract was not silent with respect to class arbitration. To the contrary, a central aspect of the arbitration contract between Missouri Title Loans and Brewer was the class arbitration waiver that Brewer is seeking to invalidate. With the waiver, Missouri Title Loans expressly withheld its consent to class arbitration. Although Stolt-Nielsen is factually distinguishable from this case because it involved sophisticated international business entities, the fact remains that the Supreme Court’s analysis is premised on the concept of consent. Missouri Title Loans expressly withheld its consent to class arbitration. Were this Court to strike the class action waiver clause, the result would be an agreement that was silent as to class arbitration. As Stolt-Nielsen requires an affirmative consent to class arbitration before it may be compelled, its rationale would preclude Missouri Title Loans from being forced to submit to class arbitration.

The conclusion that Missouri Title Loans cannot be compelled to participate in class arbitration does not mean that Brewer must submit to individual arbitration. The trial court found that the class arbitration waiver was unconscionable and unenforceable and ordered the case to proceed to arbitration for a determination of whether class arbitration is appropriate. In effect, the trial court, consistent with prior Missouri cases, severed what it found to be an unconscionable clause (the class arbitration waiver) from the otherwise enforceable arbitration contract. Under Stolt-Nielsen, however, class arbitration is not an option in this case because Missouri Title Loans expressly withheld its consent to class arbitration, and absent an express agreement to class arbitration, class arbitration is not an option.

For this reason, simply invalidating the class waiver would not remedy the unconscionable aspects of the arbitration contract should this Court agree that denial of the right to proceed on a class basis is unconscionable on these facts. That is because were the class waiver simply invalidated and severed from the remainder of the arbitration contract, Brewer then would be required to submit to individual arbitration. If this Court were to agree with the trial court that, on the facts of this case, individual arbitration is not economically practical or feasible because the amount in controversy is so small in relationship to the risks and costs involved that a reasonable attorney would not take the case, however, then individual arbitration would not be a feasible remedy. This difficulty could be avoided only by permitting litigation of this matter as part of a class action, and as there is no affirmative agreement to class arbitration, the class action must proceed in court. This is not surprising, for one of the rationales behind allowing class actions is to permit suit to be brought on a class basis where it is not economically or practically feasible to do so on an individual basis. Woods, 280 S.W.3d at 98.

This is not to say that an arbitration agreement is always unconscionable merely because there is no agreement to class arbitration; Stolt-Nielsen demonstrates that requiring individual arbitration can be reasonable and enforceable. It is only when the practical effect of forcing a case to individual arbitration is to deny the injured party a remedy — because a reasonable attorney would not take the suit if it could not be brought on a class basis either in court or through class arbitration that — a requirement for individual arbitration is unconscionable. The Court, therefore, turns to the facts of this case to see whether the individual arbitration agreement imposed by Missouri Title Loans was unconscionable here.

III. Unconscionability

An unconscionable arbitration provision in a contract will not be enforced. See State ex rel. Vincent v. Schneider, 194 S.W.3d 858, 856-61 (Mo. banc 2006) (invalidating as unconscionable arbitration clauses requiring the consumer to pay for all arbitration fees and allowing an entity related to one of the parties to select the arbitrator); Whitney v. Alltel Communications, Inc., 173 S.W.3d 300, 308-314 (Mo.App.2005) (invalidating as unconscionable an arbitration provision barring consumer claims from being raised as class actions). There are procedural and substantive aspects to unconscionability. Procedural un-conscionability relates to the formalities of the making of an agreement and encompasses, for instance, fíne print clauses, high pressure sales tactics or unequal bargaining positions. Woods, 280 S.W.3d at 94 (citing Whitney, 173 S.W.3d at 308). Substantive unconscionability refers to undue harshness in the contract terms. Whitney, 173 S.W.3d at 308 (quoting Funding Sys. Leasing Corp. v. King Louie Int’l, Inc., 597 S.W.2d 624, 634 (Mo.App.1979)).

A number of decisions from the Missouri court of appeals has held that there must be both procedural and substantive unconscionability before a contract or a clause can be voided. See Woods, 280 S.W.3d at 94. These cases characterize the test for unconscionability as a balancing test or “sliding scale” between the substantive and procedural aspects. Whitney, 173 S.W.3d at 308. This general rule provides an acceptable analytical framework for most cases because a party who employs procedurally unconscionable bargaining tactics usually does so with the goal of inducing the other party into a one-sided contract. Nonetheless, there are cases in which a contract provision is sufficiently unfair to warrant a finding of unconscionability on substantive grounds alone. For instance, in Schneider, this Court did not address procedural unconscionability and, instead, determined that as the arbitration clause at issue was substantively unconscionable, it was void. 199 S.W.3d at 858-59. Although Schneider did not hold expressly that it is unnecessary to find both procedural and substantive unconscionability, the analysis in the case supports the conclusion that Missouri law does not require the party claiming unconscionability to prove both procedural and substantive unconscionability. Under Missouri law, unconscionability can be procedural, substantive or a combination of both.

The evidence in this case supports the trial court’s determination that the class arbitration waiver is unconscionable. With respect to procedural uneonscionability, there was evidence that the loan agreement was non-negotiable and difficult for the average consumer to understand and that Missouri Title Loans was in a superior bargaining position. As Brewer notes, this evidence is virtually identical to Woods, 280 S.W.3d at 96, in which the court of appeals affirmed a judgment finding that a class arbitration waiver provision contained in payday lender’s loan contract was unconscionable. As in the present case, the evidence in Woods demonstrated that the lender was in a superior bargaining position because the high-interest loan agreement was offered to people in financial distress on a take-it or leave-it basis. As in Woods, there is sufficient evidence in this case to support the trial court’s finding of procedural un-conscionability.

Brewer also introduced substantial evidence of substantive unconscionability. Brewer presented expert testimony from three consumer lawyers who testified it was unlikely that a consumer could retain counsel to pursue individual claims. John Ammann, a professor from St. Louis University School of Law, testified that it would be very hard, “if not impossible,” for a consumer to find counsel to handle a claim under the loan agreement because it is a complicated area of law. Such a claim would require significant expertise and discovery; therefore, it would not be financially viable for an attorney because of the complicated nature of the case and the small damages at issue. Bernard Brown, another expert testifying on behalf of Brewer, testified it would be “exceedingly difficult,” if not “outright rare,” to find representation for individual claims. The final expert, Dale Irwin, testified that the likelihood of an individual finding an attorney to represent him or her was “virtually nil” because of the small damages and the likelihood of a “heavily defended” defendant such as Missouri Title Loans.

Brewer’s evidence is similar to the class action waiver held unconscionable in Woods. The Woods court found that class action waiver and arbitration provision substantively unconscionable based on the limitation it placed on Woods’s ability to retain counsel to pursue a cause of action. The inability to retain counsel leaves the consumer with no meaningful avenue of redressing complicated statutory and common law claims. Id. at 97, 98. The net result of class arbitration waivers in consumer contracts involving small amounts of money is that “‘[a] company [that] wrongfully exacts a dollar from each of millions of customers will reap a handsome profit [and] the class action is often the only effective way to halt and redress such exploitation.’ ” Id. at 97 (quoting Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100, 1105 (2005)). Therefore, the Woods court determined there was sufficient evidence to support a finding of unconscionability. Id. at 99. As was the case in Woods, the net result of the class arbitration waiver in this case is that Brewer effectively forfeited legal counsel in any claim that arose under the loan agreement. To hold otherwise would allow lenders to continue unfair lending practices “since none of its customers would have a practical remedy to bring about a stop to the conduct.” Whitney, 173 S.W.3d at 310. Furthermore, because Brewer proved that the class arbitration waiver was unconscionable, the unavailability of class arbitration under the FAA means that the entire arbitration agreement is rendered unconscionable. Given that class arbitration is not an option in this case, the only way to remedy the unconscionability in this case is to strike the entire arbitration agreement.

IV. Exculpatory Clause

In its final point on appeal, Missouri Title Loans argues that the class arbitration waiver is permissible because it functions as an unambiguous exculpatory clause. A defendant cannot exculpate itself from liability unless the language is clear and unambiguous. Alack v. Vic Tanny Intern. of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. banc 1996). Missouri Title Loans asserts that the class arbitration waiver is clear and unambiguous and that the average consumer would understand that he or she is giving up the right to class arbitration. This argument is without merit because the real issue is not whether the consumer realizes he or she is forsaking class arbitration but, instead, is whether the consumer realizes that he or she effectively is bypassing the opportunity to retain counsel to litigate a claim against the lender. The net result is that the class arbitration waiver effectively immunizes the loan company from liability, creating an economic impediment to the consumer’s retention of counsel for litigating his or her claim. See Woods, 280 S.W.3d at 99. Nothing in the language of the class arbitration waiver unambiguously informs the consumer that the net result of the waiver is that the lender effectively is immunized from liability. As was the case in Woods, the class arbitration waiver here will not be enforced as a valid exculpatory clause.

CONCLUSION

The judgment finding the class arbitration waiver unconscionable is affirmed. The judgment is reversed, however, to the extent that it severs the class arbitration waiver and requires an arbitrator to determine the propriety of class arbitration. Given the FAA’s prohibition of class arbitration under the facts of this case and the fact that the unconscionable aspects of the arbitration contract are a result of the class arbitration waiver, the appropriate remedy is to strike the arbitration agreement in its entirety. The case is remanded.

RUSSELL, WOLFF and STITH, JJ., concur; PRICE, C.J., dissents in separate opinion filed; FISCHER, J., concurs in opinion of PRICE, C.J.; BRECKENRIDGE, J., dissents in separate opinion filed.

WILLIAM RAY PRICE, JR., Chief Justice,

dissenting.

I.

This case involves a collision between two valid public policy goals — consumer protection and freedom of contract. It is appropriate to regulate business interests from exploiting unwary, unsophisticated consumers. Yet Missouri law also recognizes the great value of freedom of contract, where parties may bargain both price and terms to their mutual benefit and then are held accountable for the agreement made.

The majority opinion holds that the class arbitration waiver in the title loan contract is unconscionable and then strikes the arbitration agreement in its entirety because it “effectively immunized” the lender from liability. I dissent because Ms. Brewer did not establish that the contract, and the arbitration agreement contained therein, was procedurally unconscionable or that the class action waiver was substantively unconscionable.

II.

The Federal Arbitration Act instructs states to enforce arbitration clauses unless they can be invalidated by ordinary contract principles: “An agreement to arbitrate is valid, irrevocable, and enforceable, as a matter of federal law, save upon such grounds as exist at law or equity for the revocation of any contract.” 9 U.S.C. sec. 2. However, Missouri courts will not enforce unconscionable contracts. Woods v. QC Financial Services, Inc., 280 S.W.3d 90, 99 (Mo.App.2008); Kansas City Urology P.A. v. United Healthcare Services, 261 S.W.3d 7, 14 (Mo.App.2008); Whitney v. Alltel Communications, Inc., 173 S.W.3d 300, 308 (Mo.App.2005); Swain v. Auto Services, Inc., 128 S.W.3d 103, 107 (Mo.App.2003). An unconscionable contract is an agreement “no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” Smith v. Kriska, 113 S.W.3d 293, 298 (Mo.App.2003).

Section 400.2-302(1), RSMo, provides that

If the court as a matter of law finds that the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

This statute has been used to guide Missouri courts in making determinations of unconscionability regarding arbitration agreements. Vincent v. Schneider, 194 S.W.3d 853 (Mo. banc 2006). As in any ordinary contract analysis, the parties’ intentions control. Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., — U.S. -, 130 S.Ct. 1758, 1763, 176 L.Ed.2d 605 (2010) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)); Dunn Industrial Group Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003) (“The usual rules and canons of contract interpretation govern the ... validity of an arbitration clause”).

III.

Under Missouri law, a contract will not be voided for unconscionability unless it is both procedurally and substantively unconscionable. Lawrence v. Beverly Manor, 273 S.W.3d 525, 531 (Mo. banc 2009) (Norton, J., concurring); Repair Masters Const., Inc. v. Gang, 277 S.W.3d 854, 858 (Mo.App.2009); Shaffer v. Royal Gate Dodge, Inc., 300 S.W.3d 556, 559 (Mo.App.2009); Kansas City Urology, 261 S.W.3d at 15-16; Woods, 280 S.W.3d at 95; Whitney, 173 S.W.3d at 308; Funding Systems Leasing Corp. v. King Louie International, 597 S.W.2d 624, 634 (Mo.App.1979); Cicle v. Chase Bank USA, 583 F.3d 549, 554 (8th Cir.2009); Pleasants v. American Express Company, 541 F.3d 853, 857 (8th Cir.2008). Procedural unconscionability deals with the formalities of making the contract (such as high pressure sales tactics, unreadable fíne print, or misrepresentation). This analysis focuses on whether the parties had a voluntary and sufficient meeting of the minds to bind each other to the terms of the wilting. Substantive un-conscionability deals with the terms of the contract itself (such as whether the terms are unduly harsh). This analysis focuses on whether the terms are so one sided that they are unenforceable as a matter of public policy. State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 858 (Mo. banc 2006) (citing Bracey v. Monsanto Co. Inc., 823 S.W.2d 946, 950 (Mo. banc 1992)). Courts are rightly hesitant to substitute their judgment for that of freely acting parties. That is why a showing of procedural unconscionability is necessary — it flags circumstances in which one of the parties may not have freely consented to the bargain.

The majority argues that Vincent discarded the long-standing Missouri requirement of procedural unconscionability for invalidating a contract or the entirety of an arbitration agreement. Vincent did not go so far.

In Vincent, this Court found that plaintiffs had not proven that the contract was unenforceable as an adhesion contract. Id. at 857-58. The Court also refused to impose a mutuality requirement or strike the arbitration agreement as a whole. Id. at 859. Taking guidance from section 400.2-302, the Court then proceeded to determine that two sub-parts of the arbitration agreement, a cost-shifting provision and a provision governing selection of the arbiter, were unconscionable. Id. at 863. The rest of the arbitration agreement, however, was enforced. Id. at 861.

While Vincent did strike two sub-parts of the arbitration agreement, it did not disturb the Missouri requirement that a contract or an arbitration agreement be both procedurally and substantively unconscionable before a court will void either in its entirety. Cicle, 583 F.3d at 554 (citing Whitney, 173 S.W.3d at 308) (“Before a contract will be deemed unenforceable on the grounds of unconscionability, a court applying Missouri law must find it both procedurally and substantively unconscionable.”). In Vincent, the Court enforced the basic agreement of the parties to arbitrate, merely blue-penciling the substantively unconscionable provisions. See, e.g., Mid-States Paint & Chemical Co. v. Herr, 746 S.W.2d 613, 616 (Mo.App.1988) (citing R.E. Harrington Inc. v. Frick, 428 S.W.2d 945 (Mo.App.1968)) (“Under the blue pencil doctrine, if a restrictive covenant contains words which are unreasonable limitations and if stricken would leave a reasonable contract, the court may ‘blue pencil’ or strike those words out.”); Sigma Chemical Co. v. Harris, 794 F.2d 371 (8th Cir.1986).

To determine whether an agreement is procedurally unconscionable, an examination of the process is necessary. Whitney, 173 S.W.3d at 308. In this case, there is absolutely no evidence that Missouri Title Loans engaged in coercive or high-pressure sales tactics. There is evidence, however, that the class arbitration waiver was in all caps and in bold font. The fact that Ms. Brewer thought it was “not important” for her to read the loan agreement before signing it does not mean that the process was procedurally unfair. See, e.g., Vincent, 194 S.W.3d at 857 (“Relators cannot simply allege [unconscionability] and offer no other proof on the matter.”).

Undoubtedly, Missouri Title Loans was in a better bargaining position than Ms. Brewer. Undoubtedly, the loan agreement between Missouri Title Loans and Ms. Brewer was a non-negotiated form contract. However, not all non-negotiated form contracts are unconscionable contracts of adhesion. Cicle, 583 F.3d at 554 (“These sorts of take-it-or-leave-it agreements between businesses and consumers are used all the time in today’s business world. If they were all deemed to be unconscionable and unenforceable ... or if individual negotiation were required to make them enforceable, much of commerce would screech to a halt”). When a party offers no proof that she was unable to look elsewhere for a more attractive contract, or that all the area’s title loan companies use the same class arbitration waivers, this Court ought not invalidate the parties’ freely entered-into agreement. Id.; Vincent, 194 S.W.3d at 857 (the weaker party must show she was unable to look elsewhere for a better option); Robin v. Blue Cross Hospital Service, Inc., 637 S.W.2d 695, 697 (Mo. banc 1982). Here, Brewer stated that there was nothing stopping her from looking elsewhere for a loan agreement with different or more favorable terms. In fact, before dealing with Missouri Title Loans, she compiled a list of 20 competing companies that offered the same services. Ms. Brewer nowhere claimed that all of these companies used the same standard form contract or that they included the same class arbitration waiver in their agreements. Ms. Brewer failed to prove that the contract she decided to enter into with Missouri Title Loans was procedurally unconscionable.

To the extent that the majority opinion invalidates the entire arbitration agreement in this case, without requiring a showing of procedural unconscionability, it departs from Missouri law.

IV.

Admittedly, the majority does not invalidate the arbitration clause in one step. Instead, it argues a two-step analysis. First, the majority determines that the class action prohibition in the arbitration clause is substantively unconscionable because it deprives plaintiffs of a practical remedy. And second, because the newly decided Supreme Court case of Stolt-Niel-sen refuses to allow class arbitration unless it is expressly provided for in an arbitration agreement, the majority concludes that the entire arbitration agreement must go. I disagree with both steps of the argument.

A.

The initial amount in controversy in this case approximated $4,000. This amount continues to increase as interest accrues. In addition, there are possible penalties and fees that might be collected on Ms. Brewer’s behalf. Despite the testimony of Ms. Brewer’s expert witnesses, this is not an amount that can be considered de min-imis as a matter of law. The removal of Ms. Brewer’s right to arbitrate on a class basis may diminish her bargaining power and may diminish the amount of attorney’s fees available, but it does not substantively or practically bar her from an adequate remedy for any harm she has suffered. Charles v. Spradling,. 524 S.W.2d 820, 824 (Mo.1975), is directly on point in this regard and directly contrary to the argument set out in the majority opinion.

B.

The majority opinion also draws an unwarranted conclusion from Stolt-Nielsen. StolP-Nielsen simply holds that when an arbitration agreement is silent with respect to class arbitration, the parties cannot be compelled to class arbitration. Rather, arbitration must proceed on an individual basis. 130 S.Ct. at 1776. Stolt-Nielsen does not hold that state courts may no longer sever class waivers without voiding the entire arbitration agreement. In fact, the Supreme Court does not disfavor agreements that compel individual arbitration in any way. To the contrary, individual arbitration is the default. According to Stoltr-Nielsen, if the parties do not in some way demonstrate an affirmative intent to engage in class arbitration, they will proceed to individual arbitration. Clearly, then, the Supreme Court is not instructing state courts to invalidate in its entirety any arbitration agreement that provides for individual arbitration, especially where arbitration — -in some form— was contemplated by the parties. The driving rationale of Stolt-Nielsen is to give effect to the parties’ intent. At a circuit court hearing in this case, Ms. Brewer’s counsel stated: “I’ll be very clear. We are not fighting arbitration.” Because the majority invalidates the entire arbitration agreement, its result (class action litigation) is actually contrary to the result reached in Stolt-Nielsen (individual arbitration).

V.

Finally, class waivers in arbitration agreements are enforceable. Woods, 280 S.W.3d at 98; Ross-Langford v. Mercantile Town Mut. Ins. Co., 97 Mo.App. 79, 71 S.W. 720, 723 (1902). The Eighth Circuit has twice upheld this proposition, see Cicle v. Chase Bank, USA, 583 F.3d 549 (8th Cir.2009), and Pleasants v. American Exp. Co., 541 F.3d 853 (8th Cir.2008), as has the Third Circuit in Gay v. CreditInform, 511 F.3d 369 (3rd Cir.2007). And in general, Missouri has a preference for arbitration. Dunn Industrial Group Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003). I recognize that there are valid reasons to balance the bargaining power between strong business interests and relatively weak individual consumers, especially in the small loan industry where difficult circumstances often drive what appear to be one-sided deals. However, consumer protection measures always come at a price. Additional business or litigation costs for the small loan industry may result in even higher rates being charged to credit-challenged borrowers or their abandonment of this high risk market altogether. This type of public policy balancing is best left to the legislature and not to the courts. See, e.g., § 407.025 of the Missouri Merchandising Practices Act. I would enforce the arbitration agreement.

PATRICIA BRECKENRIDGE, Judge,

dissenting.

I join Chief Justice Price in dissenting from the majority opinion because the facts in this case do not support a finding of unconscionability. However, I write separately because I do not agree with his finding that both procedural and substantive unconscionability are always required to find a contract unenforceable. I believe that issue has not been sufficiently resolved in Missouri. Moreover, because the issue is not necessary to the resolution of the present case, it should be left for another day.

Courts in other jurisdictions have held that a contract must be both procedurally and substantively unconscionable for a contract to be invalidated. 8 Riohard A. Lord, WillistoN on Contracts § 18:10 (4th ed.1998); 7 Joseph M. Perillo, Corbin on ContaCts § 29.4 (Revised ed.2002). Accordingly, a number of courts have refused to apply the doctrine of unconscionability when there is merely procedural uncon-scionability but no showing of substantive unconscionability. 1 E. Allen Farns-worth, Farnsworth on Contracts § 4.28 (3rd ed.2004). Likewise, courts have held that substantive unconscionability, standing alone, is insufficient to invalidate a contract. Id. This appears to be the conclusion reached by the court of appeals. See Repair Masters Const., Inc. v. Gary, 277 S.W.3d 854, 858 (Mo.App.2009); Kansas City Urology P.A. v. United Healthcare Services, 261 S.W.3d 7, 15-16 (Mo.App.2008).

Other courts, however, have found a contract unenforceable on the basis of only substantive unconscionability in exceptional circumstances where the substantive unfairness in the contract is egregious. 1 Farnsworth on Contracts § 4.28; 8 Willi-ston on Contracts § 18:10; 7 Corbin on Contacts § 29.4. The majority opinion contends that one of this Court’s prior decisions, State ex rel. Vincent v. Schneider, supports that conclusion. 194 S.W.3d 853 (Mo. banc 2006).

In Schneider, this Court considered whether an arbitration agreement in a real estate contract was unconscionable. Id. at 859-61. Ultimately, the Court found the arbitration agreement to be unconscionable on two substantive bases, but did not find procedural unconscionability. Id. at 861. However, in so ruling, the Court did not analyze the differing view of other courts or recognize that it was overruling court of appeals cases to the contrary.

The majority and dissenting opinions disagree over the significance of Schneider. In this case, the majority finds that Schneider implies that a strong finding of substantive unconscionability alone is sufficient to invalidate an unfair contractual provision. The Chief Justice’s dissent, on the other hand, believes that Schneider did not purport to overrule the requirement that a contractual provision must be both procedurally and substantively unconscionable and, therefore, the law articulated by the court of appeals remains effective.

I do not believe it is necessary to the holdings of either the majority or dissenting opinions to decide whether Schneider should be interpreted as rejecting prior court of appeals decisions holding that both procedural and substantive uncon-scionability are needed to invalidate an unfair contractual provision. Such a decision is unnecessary to the Chief Justice’s dissent because it finds the arbitration waiver in Ms. Brewer’s case to be enforceable, a conclusion with which I agree. Likewise, a decision as to whether both procedural and substantive unconscionability are needed is unnecessary to the majority opinion because the majority finds the class arbitration waiver in Ms. Brewer’s case to be both procedurally and substantively unconscionable. Consequently, because it is unnecessary to the resolution of this case to determine if Schneider overruled prior precedent, the issue of whether substantive unconscionability alone is sufficient to invalidate a contract should be left for resolution in future cases.

I also write separately because I believe that a contract provision waiving class action arbitration, like any other contract provision, may be unconscionable under certain circumstances. However, as discussed by Chief Justice Price, the facts in this case do not support a finding of uncon-scionability.

      . Cases from other jurisdictions are split on the issue of whether a party must prove both procedural and substantive unconscionability to void a contract or clause. In Maxwell v. Fidelity Financial Services, Inc., 184 Ariz. 82, 907 P.2d 51, 59 n. 3 (1995), the court noted decisions in Utah, New York and New Hampshire expressly holding that a contract can be voided on grounds of unconscionability without finding both procedural and substantive unconscionability. See Resource Management Co. v. Weston Ranch & Livestock Co., 706 P.2d 1028, 1043 (Utah 1985) ("gross disparity in terms, absent evidence of procedural uncon-scionability, can support a finding of uncon-scionability”); Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1, 537 N.Y.S.2d 787, 534 N.E.2d 824, 829 (1988) ("while determinations of unconscionability are ordinarily based on the court's conclusion that both the procedural and substantive components are present ... there have been exceptional cases where a provision of a contract is so outrageous as to warrant holding it unenforceable on the ground of substantive unconscionability alone”); American Home Improvement v. MacIver, 105 N.H. 435, 201 A.2d 886, 889 (1964) (holding a contract unconscionable due to substantial price to value disparity).

      . Section 407.025 of the Missouri merchandising practices act authorizes the recovery of attorney fees. As such, the legislature anticipated that consumers need an attorney for successful vindication of the rights extended by the MPA.

      . It is not clear what definition of "uncon-scionability” the majority is using.

      . A 300 percent interest rate in any loan agreement is certainly suspect. However, that is not the issue before us.


source: Caselaw Access Project

author: WILLIAM RAY PRICE, JR., Chief Justice.

license: Public Domain

text:
    STATE ex rel. Gina Marie HOUSKA, Personal Representative of the Estate of Jeffrey A. Houska, Deceased, Relator, v. The Honorable Ray DICKHANER, Respondent.
    No. SC 90701.
    Supreme Court of Missouri, En Banc.
    Oct. 5, 2010.
    Rehearing Denied Nov. 16, 2010.

      Thomas J. Ray Jr., Ray Law offices PC, Arnold, for estate.

      C. Timothy Rice, St. Louis, for Panagos.
   WILLIAM RAY PRICE, JR., Chief Justice.

James T. Panagos, LLC completed work for Jeffrey Houska, but Houska died without paying Panagos. Panagos first brought his claim for payment against Houska’s estate two-and-a-half-years later. The trial court held that the claim was barred under sections 473.444 and 473.360, RSMo 2000. Panagos filed a motion for rehearing, which was granted to determine if section 473.444 violated Panagos’ due process rights.

The estate seeks an order prohibiting the trial court from reinstating the claim Panagos asserted against it. This Court issued a preliminary writ of prohibition. Section 473.444 does not implicate due process because it is self-executing and does not constitute sufficient state action. The preliminary writ is made permanent.

I. Facts and Procedural History

In 2006, Panagos performed electrical contracting services and supplied electrical material for a home being built by Jeffrey Houska. Panagos furnished his invoice, in the amount of $1,498.75, to Houska on October 26, 2006. Houska died one week later, on November 2, 2006, without paying Panagos for his services. On May 11, 2007, the estate published letters of administration. Panagos brought a claim against the estate on May 5, 2009.

The trial court barred Panagos’ claim under both sections 473.444 and 473.360, which govern the time periods in which creditors may bring claims against estates. Panagos filed a motion for rehearing, which the trial court granted. The trial court reinstated Panagos’ claim on the basis of Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), which held that an Oklahoma nonclaim statute violated creditors’ due process rights because the trial court was intimately involved in the application of the time bar and the statute did not require the estate to give creditors actual notice. The trial court then set a hearing date to determine whether the standards in Pope had been met.

The estate petitioned this Court to prohibit the trial court from reinstating Pana-gos’ claim, and a preliminary writ of prohibition issued. Panagos argues that section 473.444 violates due process because it bars most creditors’ claims against an estate that are brought more than one year after a decedent’s death and does not require the estate to give the creditors actual notice of the probate proceedings.

II. Standard of Review

A writ of prohibition is available: (1) to prevent a usurpation of judicial power when the trial court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted. State ex rel. Missouri. Public Defender Comm’n v. Pratte, 298 S.W.3d 870, 880 (Mo. banc 2009). Prohibition may be appropriate to prevent unnecessary, inconvenient, and expensive litigation. State ex rel. Henley v. Bickel, 285 S.W.3d 327, 330 (Mo. banc 2009). Here, where the estate alleges that the trial court improperly reinstated Panagos’ claim, a writ of prohibition is the appropriate remedy to prevent unnecessary and expensive litigation.

III. Analysis

A. Under Pope, Section 473.444 Is Self-Executing and Does Not Implicate Due Process Protections.

In response to the estate’s writ, Panagos argues that section 473.444 violates the Due Process Clauses of the Missouri and United States Constitutions because the statute does not require actual notice to decedents’ creditors. Section 473.444 provides:

Unless otherwise barred by law, all claims against the estate of a deceased person, other than costs and expenses of administration, exempt property, family allowance, homestead allowance, claims of the United States and claims of any taxing authority within the United States, ... shall become unenforceable and shall be forever barred against the estate ... one year following the date of the decedent’s death, whether or not administration of the decedent’s estate is had or commenced within such one-year period and whether or not during such period a claimant has been given any notice, actual or constructive, of the decedent’s death or of the need to file a claim in any court.

(Emphasis added).

The Due Process Clause of the Fourteenth Amendment requires states to provide a party with notice that is “reasonably calculated ... to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Pope, 485 U.S. at 484, 108 S.Ct. 1340 (quoting Muttane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). “The Fourteenth Amendment protects this interest, however, only from deprivation by state action.” Id. at 485, 108 S.Ct. 1340 (emphasis added).

Panagos cites Pope in support of his contention that section 473.444 violates his right to due process by failing to require that the estate give him actual notice. In Pope, the Supreme Court considered an Oklahoma nonclaim statute that required the probate court to appoint an executor or executrix before notice was given to estates’ creditors. Id. at 486, 108 S.Ct. 1340. The notice triggered a two-month window in which creditors could bring claims against an estate. Id. Without court action — appointing the estate’s executor or executrix — the two-month time bar would not be activated. The Supreme Court held that the “intimate involvement” of the state court constituted sufficient state action and implicated due process. Id.

The Oklahoma statute at issue in Pope was not self-executing. The Supreme Court expressly distinguished the applicability of the Due Process Clause to self-executing statutes of limitation. The Supreme Court explained that with a self-executing statute of limitation, the state has no role other than the enactment of the statute. Id. The Supreme Court clarified that the “[sjtate’s limited involvement in the running of the time period generally falls short of constituting the type of state action required to implicate the protections of the Due Process Clause.” Id. at 487, 108 S.Ct. 1840.

In the present case, section 473.444 is self-executing. According to the Supreme Court’s discussion of self-executing statutes in Pope, section 473.444 does not involve sufficient state involvement to implicate due process protections. As this Court has previously noted, section 473.444 “operates independently of any notice, judicial action or jurisdiction of the probate division to bar claims.” Hatfield v. McCluney, 893 S.W.2d 822, 827 (Mo. banc 1995). The trial court is not “intimately” involved with the application of the one-year limitation in section 473.444. No state action is required to trigger the one-year period; the decedent’s death automatically triggers the time period. Because section 473.444 is self-executing, Pa-nagos’ due process claim fails.

A one-year limitation is needed to promote the speedy and efficient settlement of estates. The state has an interest in “providing repose for potential defendants and in avoiding stale claims.” Pope, 485 U.S. at 486, 108 S.Ct. 1340. Section 473.444 facilitates prompt closure of estates and still gives creditors one full year to bring claims.

This Court’s holding is consistent with other jurisdictions, which have unanimously held that Pope does not apply to self-executing statutes of limitation on creditors’ claims that begin running at the time of the decedent’s death. In Re Estate of Ongaro, 998 P.2d 1097 (Colo.2000); Estate of Decker v. Farm Credit Services, 684 N.E.2d 1137 (Ind.1997); Ohio Casualty Insurance Co. v. Hallowell, 94 Md.App. 444, 617 A.2d 1134 (1993); Burnett v. Villaneuve, 685 N.E.2d 1103 (Ind.App.1997); Roddy v. Hamilton County Nursing Home, 1999 WL 172675, 1999 Tenn.App. LEXIS 201 (Tenn.App.1999); Society Nat’l Bank v. Johnson, 1997 WL 781741, 1997 Ohio App. LEXIS 5682 (Ohio App.1997); Fifth Third Bank v. Gottlieb, 1997 WL 543069, 1997 Ohio App. LEXIS 3815 (Ohio App.1997).

B. Panagos Waived Additional Constitutional Claims.

In addition to his argument that section 473.444 violates creditors’ due process rights, Panagos also argues in his brief before this Court that the statute (1) lacks clear title under article III, section 23 of the Missouri Constitution, and (2) violates the Equal Protection Clause under the Missouri and United States Constitutions. In Missouri, “[cjonstitutional challenges to the validity of any alleged right or defense asserted by a party to an action must be raised at the earliest opportunity consistent with good pleading and orderly procedure.” Litzinger v. Pulitzer Publishing Co., 356 S.W.2d 81, 88 (Mo.1962); see Eisel v. Midwest BankCentre, 230 S.W.3d 335 (Mo. banc 2007).

In writ proceedings, the parties may not always have an opportunity to raise all issues in the trial court. In such circumstances, waiver may not occur.

Here, however, Panagos had a full and fair opportunity to brief and argue all of his defenses to section 473.444. In his motion for rehearing, Panagos only argued that barring his claim violated his due process rights. Panagos did not allege that section 473.444 lacked a clear title under article III of the Missouri Constitution or violated his equal protection rights. Panagos’ failure to include these issues in his motion for rehearing, or to otherwise raise these additional constitutional issues, precluded the trial court from ruling on the allegations. Panagos waived these additional constitutional claims by not bringing them at the earliest opportunity.

IV. Conclusion

The preliminary writ of prohibition is made permanent.

All concur.

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

      . Section 473.360 provides that:
      all claims against the estate of a deceased person, ... which are not filed in the probate division of the circuit court within six months after the date of the first published notice of letters testamentary or of administration or, if notice was actually mailed to, or served upon, such creditor, within two months after the date such notice was mailed, or served, whichever later occurs, or which are not paid by the personal representative, within six months after the first published notice of letters testamentary or of administration, are forever barred against the estate ...
      Because the estate concedes that Panagos may be entitled to actual notice under section 473.360, the rest of this Court's analysis focuses on tire estate’s argument regarding section 473.444.

      .Section 473.444 does not bar recovery of "costs and expenses of administration, exempt property, family allowance, homestead allowance, claims of the United States and claims of any taxing authority within the United States.” Panagos' claim does not fall within any of the listed categories.

      . Panagos also argues that section 473.444 violates the Due Process Clause of the Missouri Constitution. This Court has previously stated that Missouri's Due Process Clause “parallels its federal counterpart, and in the past this Court has treated the state and federal Due Process Clauses as equivalent.” Jamison v. State Division of Family Services, 218 S.W.3d 399, 405 (Mo. banc 2007). Panagos fails to show that, in this case, the Due Process Clause in the Missouri Constitution should be construed more broadly than the Due Process Clause of the United States Constitution.


author: PER CURIAM.

text:
    STATE of Missouri, Appellant, v. James JOHNSON, Respondent.
    No. ED 93882.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 19, 2001.
    Margaret Johnston, Columbia, MO, for appellant.
    Shaun Mackelprang, Jefferson City, MO, for respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J., and NANNETTE A BAKER, J.
   ORDER

PER CURIAM.

James Johnson (“Defendant”) appeals his convictions of one count of attempted robbery in violation of section 564.011, one count of forcible sodomy in violation of section 566.060, one count of kidnapping in violation of section 565.110, and three counts of armed criminal action in violation of section 571.015. Defendant raises one point on appeal. He claims that the trial court abused its discretion in admitting testimony regarding unsolicited statements made by Defendant to police shortly after his arrest.

We have reviewed the briefs of the parties and the record on appeal. The findings and conclusions of the trial 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. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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

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

      . RSMo. (Supp.2006)

      . RSMo. (Supp.2004)


author: PER CURIAM:

text:
    WESTLUND DIESEL, INC., Appellant, v. Jeffrey BANTA and Division of Employment Security, Respondents.
    No. WD 71790.
    Missouri Court of Appeals, Western District.
    Aug. 3, 2010.
    Patricia A. Mullins and James P. Malo-ney, Kansas City, MO, for appellant.
    Jeffrey Banta, Jefferson City, pro se.
    Ninion S. Riley, Jefferson City, MO, for respondent Division of Employment Security.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Westlund Diesel, Inc. appeals the Labor and Industrial Relations Commission’s order granting Jeffrey Banta unemployment compensation benefits.

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


text:
    In the Matter of the CARE AND TREATMENT OF Paul E. BOWLES, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70599.
    Missouri Court of Appeals, Western District.
    Aug. 3, 2010.
    Emmett D. Queener, Columbia, MO, for appellant.
    Shaun J. Mackelprang and Jayne T. Woods, Jefferson City, MO, for respondent.
    Before Division One: JAMES M. SMART, JR., Presiding Judge, MARK PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Paul Bowles appeals from the trial court’s judgment committing him to the custody of the Department of Mental Health as a sexually violent predator. Bowles contends that the trial court abused its discretion in limiting his voir dire. We affirm. Rule 84.16(b).


text:
    Donald MCCLELLAND, Appellant, v. Russell KRUSE, Respondent.
    No. ED 94433.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 24, 2010.
    Rehearing Denied Oct. 7, 2010.
    Frank A. Conard, St. Peters, MO, for Appellant.
    Jeffrey 0. Parshall, Columbia, MO, for Respondent.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Donald McClelland appeals from the dismissal of his petition for legal malpractice against Russell Kruse. McClelland contends the trial court erred in dismissing his petition because the statute of limitations had not run on his claim.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    COMMERCIAL REALTY ASSOCIATES LIMITED PARTNERSHIP, Appellant, v. CITIZENS NATIONAL BANK, et al., Respondents.
    No. ED 93408.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 24, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 7, 2010.
    Application for Transfer Denied Nov. 16, 2010.
    Steven M. Hamburg, Michael J. Payne, Clayton, MO, for Appellant.
    Paul F. Devine, Maryland Heights, MO, Aan J. Steinberg, Saint Louis, MO, for Respondent.
    Before ROY L. RICHTER, C.J., GLENN A. NORTON and GEORGE W. DRAPER, III, JJ.
   ORDER

PER CURIAM.

Commercial Realty Associates Limited Partnership appeals the grant of summary judgment in favor of Citizens National Bank, Mapleview Holdings, Inc., and John and Constance Cournoyer (collectively referred to as “defendants”). We find that the trial court did not err in granting summary judgment in favor of defendants.

An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the trial court is affirmed under Rule 84.16(b).


text:
    In re: The ESTATE OF Harry Henderson QUALLS, Deceased.
    No. ED 93619.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 7, 2010.
    Application for Transfer Denied Nov. 16, 2010.
    Lawrence J. Altman, Corinne N. Darvish, St. Louis, MO, for Appellant.
    Joanne S. Wilson, St. Louis, MO, for Respondent.
    John S. Steiner, Clayton, MO, Pro Se.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Appellants, the ten alleged paternal siblings of Harry Henderson Qualls, (“Decedent”), appeal from the judgment of the trial court dismissing with prejudice any proceedings before it on petition or motion of Appellants because they lacked standing.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).

      . The ten paternal siblings include Virginia Lewis, Regina D. Ricks, Emmit Ricks, Elizabeth Denton, Lovie Softley, Patricia Hawkins, Henry Lewis, Alphonso Lewis, Alvin B. Ricks, Sr., and David L. Ricks, Sr.


text:
    STATE of Missouri, Respondent, v. Frederick SPENCER, Appellant.
    No. ED 93867.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 18, 2010.
    Frederick Spencer, Bowling Green, MO, pro se.
    Chris Koster, Atty. Gen., and Jamie Pamela Rasmussen, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Frederick Spencer appeals from the judgment denying his motion for post-conviction DNA testing. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 84.16(b)(5).


author: NANNETTE A. BAKER, Judge.

text:
    AMBASSADOR FLOOR COMPANY, Plaintiff, and Roettger Concrete Company, Respondent, v. BRUNER BUILDERS LLC, Wootten & Wootten LLC, Thomas B. Burkemper, Bank of Old Monroe, Shane C. O’Donnell, Christina J. Flieger, Mortgage Electronic Registration System, Inc., John C. Prinster and JP Morgan Chase Bank NA, Defendants, and Sarah E. Robins, PRLAP, Inc., Bank of America, N.A., Alice Hrabal, Peoples Bank and Trust Company, and Dale Cope, Trustee, Appellants.
    No. ED 93835.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 31, 2010.

      Martin Blanchard, Brandon Rothkopf, Co-Counsel, St. Louis, MO, for appellant.
    David Hohman, St. Louis, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Introduction

Sarah Robins (“Robins”), Bank of America, N.A., PRLAP, Inc., Alice Hrabal (“Hrabal”), Peoples Bank & Trust Co., and Dale Cope (collectively “Defendants”) appeal from the trial court’s judgment in the Circuit Court of Lincoln County awarding Roettger Concrete Company (“Roettger”) mechanic’s liens against two residential lots. On appeal, Defendants assert three points of claimed error. In their first and second points, Defendants claim that Ro-ettger failed to prove that it provided the statutorily required notice necessary to impose a mechanic’s lien or that the exception to the notice requirement applied. In their final point, Defendants claim that Roettger failed to prove that it was a Missouri corporation in good standing. We affirm in part and reverse in part.

Factual and Procedural Background

In 2007, Roettger entered into two contracts with Bruner Builders, LLC (“Bruner Builders”) to provide and install concrete for new residences at Lots 110 and 117 of the Bridle Spur subdivision in Lincoln County. Roettger completed the work on both lots on September 13, 2007, but Bruner Builders failed to pay Roettger for the work on either lot. After Roettger completed the work, Bruner Builders conveyed title to Lot 110 to Robins. Bank of America, N.A. provided the purchase money loan to Robins, who executed and delivered a deed of trust to Bank of America, N.A. and PRLAP, Inc., as trustee. Bruner Builders also conveyed title to Lot 117 to Hrabal. Peoples Bank & Trust Co. provided the purchase money loan to Hra-bal, who executed and delivered a deed of trust to Peoples Bank & Trust Co. and Dale Cope, as trustee.

On February 14, 2008, Roettger filed mechanic’s lien statements against both lots with the Circuit Clerk of Lincoln County. Ambassador Floor Company, another contractor who had contracted with Bruner Builders for construction work in the Bridle Spur subdivision, filed a petition against Roettger and Defendants seeking to enforce mechanic’s hens. In response, Roettger filed a “Cross-Petition” against Defendants and Bruner Builders, alleging breach of contract and quantum meruit and sought enforcement of mechanic’s liens for the work Roettger performed on Lots 110 and 117. For the purposes of this appeal, we are only concerned with Roett-ger’s claims.

On June .16, 2009, the trial court held a bench trial. Roettger’s Vice-President, Keith Roettger, testified that the work performed by Roettger on both lots was for new residences. Mr. Roettger also stated that' Roettger completed the work on both lots for which Bruner Builder and Roettger had contracted, but Bruner Builder failed to pay. Defendants Robins and Hrabal testified on their own behalf. During cross-examination, Robins admitted that she obtained title insurance on the property and that the title insurance included coverage for mechanic’s liens. Hrabal also admitted during cross-examination that she purchased title insurance that provided coverage for mechanic’s liens.

In its July 2, 2009 “Findings of Fact, Conclusions of Law and Judgment,” the trial court found in favor of Roettger on its claims for breach of contract against Bruner Builders for the work completed on Lots 110 and 117. The trial court further concluded that Roettger had valid and enforceable mechanic’s liens against Lots 110 and 117 for the payment of Roettger’s judgment against Bruner Builders. Defendants filed a motion for new trial, but the trial court declined to rule on the motion. This appeal follows.

Standard of Review

In a court-tried case such as this, we will affirm the judgment of the trial court “unless the judgment is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.” Mo. Land Dev. Specialties, LLC v. Concord Excavating Co., L.L.C., 269 S.W.3d 489, 496 (Mo.App. E.D.2008) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We consider the evidence in the light most favorable to the respondent and give the respondent the benefit of all reasonable inferences therefrom. Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179, 184 (Mo. banc 2009).

Discussion

In their first two points on appeal, Defendants claim the trial court erred in entering judgment in favor of Roettger because Roettger failed to prove a necessary element of its claims. Defendants contend that Roettger failed to prove that it provided the statutory notice required by Section 429.012 or that the exception to the notice requirement applied. In their third and final point, Defendants argue that the trial court erred in entering judgment in favor of Roettger because Roett-ger failed to prove its corporate status at trial. Because of our resolution of Defendants’ first two points on appeal, we need not address the third point.

A mechanic’s lien acts as a charge on the land “to secure a priority of payment for the performance of labor or the supply of material to buildings or other improvements to be enforced against the particular property in which they have become incorporated.” Lake Ozark Constr. Indus., Inc. v. Osage Land Co., L.L.C., 168 S.W.3d 471, 475-76 (Mo.App. W.D.2005) (internal citation omitted). Mechanic’s liens were not known at common law but instead are creatures of statute. Concord Excavating, 269 S.W.3d at 499. Because mechanic’s liens exist only under statute, the party seeking the lien must comply with all statutory requirements and bears the burden of proving such compliance. State ex rel. Springfield Underground, Inc. v. Sweeney, 102 S.W.3d 7, 9 (Mo. banc 2003); Glenstone Block Co. v. Pebworth, 264 S.W.3d 703, 711 (Mo.App. S.D.2008).

Among the statutory requirements, an original contractor seeking a mechanic’s lien must provide the following notice:

NOTICE TO OWNER
FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING OF A MECHANIC’S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS CONTRACT PURSUANT TO CHAPTER 429, RSMO. TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR “LIEN WAIVERS” FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT. FAILURE TO SECURE LIEN WAIVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE.

Section 429.012.1. Provision of this notice is “a condition precedent to the creation, existence or validity of any mechanic’s lien in favor of such original contractor.” Section 429.012.2. However, the notice requirement of Section 429.012.1 “shall not apply to new residences for which the buyer has been furnished mechanics’ and suppliers’ lien protection through a title insurance company registered in the state of Missouri.” Section 429.012.4. Our courts have declined to find exceptions to the notice requirement beyond this statutory exception. Gamy Excavating & Grading Co. v. Kersten Homes, Inc., 934 S.W.2d 303, 305 (Mo. banc 1996).

On appeal, Defendants argue that Roett-ger failed to present sufficient evidence to show that it satisfied the notice requirement or the exception to the notice requirement. Roettger concedes that it failed to provide the statutory notice but contends that it presented sufficient evidence to satisfy the statutory exception. To do so, Roettger must show: (1) the work completed was for new residences; (2) the buyer had been furnished with mechanic’s lien protection; and (3) a title insurance company registered in the state of Missouri provided the protection. Section 429.021.4.

Roettger failed to present any evidence that the insurance company providing the mechanic’s lien protections was registered in the state of Missouri. Hrabal and Robins both testified that they purchased title insurance that included mechanic’s lien protections; however, they did not provide information about the names of the title insurance companies nor whether they were registered in Missouri. Although we grant Roettger the benefit of all reasonable inferences under our standard of review, we cannot find that there was substantial evidence to support the trial court’s judgment where the record lacks any evidence that the company providing title insurance was registered in the state of Missouri.

Roettger failed to prove that the exception of Section 429.012.4 applied, and therefore, Roettger was required to provide the statutory notice of Section 429.012.1. Such notice is a “condition precedent to the creation, existence or validity of any mechanic’s lien....” Section 429.012.2. Roettger concedes that it did not comply with this requirement, and as a result, the mechanic’s liens are invalid. Points I and II are granted.

Conclusion

That part of the judgment imposing mechanic’s liens against Lots 110 and 117 is reversed. That part of the judgment in Roettger’s favor on its claims for breach of contract against Bruner Builders is affirmed.

KURT S. ODENWALD, P.J., and ROBERT G. DOWD, JR., J., concur.

      . In the same action, both Ambassador and Roettger filed suit against a number of other defendants for work performed on other residential lots, but these defendants are not relevant to the resolution of this appeal.

      . In Defendants’ brief, they argue that the trial court lacked jurisdiction to enter a judgment in favor of Roettger. However, in light of J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), it is not a jurisdictional question but instead a question of whether Roettger met its burden to prove a condition precedent to the enforcement of a mechanic’s lien.

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


text:
    Antwon NELSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94225.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 13, 2010.
    Application for Transfer Denied Nov. 16, 2010.
    Antwon D. Nelson, Cameron, MO, pro se.
    Chris Koster, Jamie Pamela Rasmussen, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

In December 1992, Antwon Nelson (“Movant”) and others assaulted and robbed two fourteen year old boys, beating and kicking them, stabbing them with a knife, and using a gun to shoot one boy in the head, causing his death, and beating the other with the gun. Movant was convicted of first-degree murder, first-degree assault, two counts of first-degree robbery, and two counts of armed criminal action. Movant appealed these convictions and filed a Rule 29.15 motion as well, which was denied. On appeal, this Court reversed Movant’s conviction for first-degree murder and remanded for a new trial on that charge, but affirmed the remaining convictions, as well the denial of the post-conviction relief motion.

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:
    Lamarc GARRETT, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93696.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 7, 2010.
    Gwenda Robinson, MO Public Defender Office, St. Louis, MO, for appellant.
    Shaun Mackelprang, John Reeves, Co-Counsel, Jefferson City, MO, for respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J„ and NANNETTE A BAKER, J.
   ORDER

PER CURIAM.

Lamarc Garrett (“Movant”) appeals from the motion court’s Findings of Fact, Conclusions of Law and Judgment (“Judgment”) denying his Rule 24.035 Motion to Vacate, Set Aside, or Correct the Judgment and Sentence (“PCR Motion”) without an evidentiary hearing. We affirm.

We have reviewed the briefs of the parties and the record on appeal. 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. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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

      . All rule references are to Mo. Sup.Ct. R. (2008), unless otherwise indicated.


text:
    STATE of Missouri, Respondent, v. Everett JONES, Appellant.
    No. ED 93095.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 7, 2010.
    Application for Transfer Denied Nov. 16, 2010.
    Deborah B. Wafer, St. Louis, MO, for appellant.

      Chris Koster, Mary H. Moore, Jefferson City, MO, for respondent.
    Before: GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Everett Jones appeals from the trial court’s judgment entered upon a jury verdict convicting him of two counts of possession of a controlled substance, and one count of possession of less than 35 grams of marijuana. We have reviewed the briefs of the parties and the record on appeal and conclude that no reversible error occurred. An extended opinion would have no jurisprudential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b) (2010).


text:
    Alice VAUGHN, Respondent, v. MISSOURI DEPARTMENT OF SOCIAL SERVICES, Family Support Division, Appellant.
    No. ED 94196.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 7, 2010.
    Application for Transfer Denied Nov. 16, 2010.

      Laura Elbury, Jefferson City, MO, for appellant.
    Christopher Barton, Columbia, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Introduction

The Missouri Department of Social Services, Family Support Division (“the Division”) appeals from the judgment of the Circuit Court of Monroe County reversing the denial of benefits to Aice Vaughn (“Vaughn”) by the Director of the Division (“the Director”). As the party aggrieved by the Director’s decision, Vaughn filed the appellant’s brief claiming that the Director erred in denying her application for benefits. Mo. Sup.Ct. R. 84.05(e) (2010). In her sole point on appeal, Vaughn contends the Director erroneously characterized Vaughn’s farmland as a resource in ' determining her eligibility for benefits.

Factual and Procedural Background

On July 16, 2008, Vaughn, through her attorney-in-fact, applied for MO HealthNet nursing home assistance to apply retroactively beginning on April 1, 2008, by submitting a “Medicaid Application/Eligibility Statement” to the Division. On the application, Vaughn stated that her checking account had a balance of less than $1000 and that she owned farmland with a value of $345,000. Vaughn also stated the she operated a farming business and that farming on the land produced $13,500 in income the previous year. Nancy Bierly (“Bierly”), an Eligibility Specialist for the Division, evaluated Vaughn’s application. Bierly determined that the farmland had a value of $59,391 based on an appraisal by the county assessor’s office. On July 17, 2008, Bierly rejected Vaughn’s claim on the basis that she had resources in excess of $999.99.

Vaughn timely applied for a hearing on the denial of her application, and a hearing officer conducted a telephone hearing on September 24, 2008. Bierly testified that due to the value of Vaughn’s farmland, she was ineligible for MO HealthNet benefits. Bierly explained that the farmland is “a resource as our policy manual specifically states to consider as an available resource property not used direct[ly] by the Claimant in the course of Claimant’s business or employment and that we are not to consider owning or managing rental property as a business or employment for this purpose.” Bierly also testified that Vaughn “moved from the farm to her home in Paris and into senior housing in June 2003....”

At the hearing, Vaughn did not testify, but her counsel argued that since Vaughn used the farmland to grow and harvest crops, the Division should not consider the farmland a resource in determining Vaughn’s eligibility. Vaughn’s counsel conceded that Vaughn did not physically engage in farming activities herself but instead hired workers to farm the land. Counsel argued that it was sufficient that the farmland itself was used directly in the farming business from which Vaughn profited.

The Director issued a decision and order on November 13, 2008, affirming the Division’s rejection of Vaughn’s application. The Director determined that under the applicable regulation, the farmland was a resource because Vaughn did not directly use the property in a trade or business. The Director then concluded that Vaughn’s resources were in excess of $1000 and thus, she was ineligible for MO HealthNet benefits.

Vaughn filed an application for judicial review of the Director’s denial of benefits with the circuit court, and the parties filed briefs with the court. Without oral argument, the circuit court reversed the Director’s decision on the basis that it was “legally erroneous” and granted Vaughn’s application for benefits. This appeal follows.

Standard of Review

Where the circuit court reverses the decision of an administrative agency, we review the agency’s decision rather than the judgment of the circuit court. Reed v. Mo. Dep’t of Soc. Servs., Family Support Div., 193 S.W.3d 839, 841 (Mo.App. E.D.2006). The party aggrieved by the agency’s decision bears the burden of persuasion to demonstrate that the decision is erroneous. Patrick v. City of Jennings, 295 S.W.3d 921, 927 (Mo.App. E.D.2009). We review the whole record to determine if the agency’s decision is: 1) in violation of constitutional provisions; 2) in excess of the statutory authority or jurisdiction of the agency; 3) unsupported by competent and substantial evidence upon the whole record; 4) unauthorized by law; 5) made upon unlawful procedure or without a fair trial; 6) arbitrary, capricious or unreasonable; or 7) an abuse of discretion. Section 208.110 Section 536.140.2; Patrick, 295 S.W.3d at 927. We defer to the agency’s factual findings, but we review the decision de novo where the agency based its decision upon an interpretation, application or conclusion of law. Miller v. Dunn, 184 S.W.3d 122, 124-25 (Mo.App. E.D.2006).

Discussion

In her sole point on appeal, Vaughn claims the Director erred in denying her application for MO HealthNet benefits because the Director misapplied the law in concluding that her farmland was a resource. Specifically, Vaughn argues that the Director should not consider her farmland a resource in determining her eligibility for benefits because she uses the real property directly in her farming business. This issue is a question of law which we review de novo. See McKenzie v. State Dep’t of Soc. Servs., Div. of Family Servs., 983 S.W.2d 196, 198 (Mo.App. E.D.1998).

Medicaid is a “cooperative program under which the federal government reimburses state governments for a portion of the costs of providing medical assistance to low income recipients.” In re Estate of Shuh, 248 S.W.3d 82, 84 (Mo.App. E.D.2008). “ ‘Each participating State develops a plan containing reasonable standards ... for determining eligibility for and the extent of medical assistance’ within boundaries set by the Medicaid statute and the Secretary of Health and Human Services.” Wis. Dep’t of Health & Family Servs. v. Blumer, 534 U.S. 473, 479, 122 S.Ct. 962, 151 L.Ed.2d 935 (2002) (quoting Schweiker v. Gray Panthers, 453 U.S. 34, 36-37, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1981)). State programs and eligibility standards must conform to federal statutory and regulatory requirements. Bechtel ex rel. Bechtel v. State Dep’t of Soc. Servs., Family Support Div., 274 S.W.3d 464, 467 (Mo. banc 2009).

Missouri has elected to participate in Medicaid through a program called “MO HealthNet.” Section 208.151.1(7) RSMo. (Supp.2007); Estate of Shuh, 248 S.W.3d at 84. MO HealthNet provides Medicaid benefits to eligible claimants for nursing home assistance. Section 208.151.1. The Division is responsible for determining a claimant’s eligibility for these benefits. Section 208.010.1 RSMo. (Supp.2007). To aid the exercise of its statutory authority, the Division has also promulgated regulations. Section 207.020.1(5).

When evaluating a claimant’s eligibility, the Division must “consider and take into account all facts and circumstances surrounding the claimant....” Section 208.010.1. An individual claimant is ineligible for benefits, inter alia, if he or she “owns or possesses resources in the sum of one thousand dollars or more....” Section 208.010.2(4). However, the Division does not consider all of the claimant’s assets as resources in determining a claimant’s eligibility for benefits. See 13 C.S.R. § 40-2.030. For real property in which the claimant has lived, the Division will not consider the property as a resource if less than “[t]wenty-four (24) months have elapsed since the last date on which either the claimant or spouse have occupied the dwelling....” 13 C.S.R. §40-2.030(8)(A)(1). The Division also does not include real property as a resource if it is “being used directly by the claimant in the course of his/her business or employment” and is “producing an annual return consistent with its fair market value.” 13 C.S.R. § 40-2.030(8)(B).

In its decision, the Director concluded that Vaughn’s use of the property for her farming business was insufficient under Section 40-2.030(8)(B). The Director found that Vaughn “is not directly involved in farming, but receives the income from the farm.” The Director concluded that Vaughn’s use was insufficient because Vaughn “does not regulate the activities or course of the farm;” “is [not] in immediate contact with the business of farming;” and does not “eommand[ ], instruct ], guide[ ], advise[], suggest! ], or assume[] the role of director without anything intervening.”

On appeal, Vaughn contends that the Director misapplied the regulation because she uses the farmland directly in her farming business. When interpreting regulations, we use the same rules of construction as when interpreting statutes. State ex rel. Evans v. Brown Builders Elec. Co., Inc., 254 S.W.3d 31, 35 (Mo. banc 2008). In determining the intent and meaning of a regulation, we give the words in the regulation their plain and ordinary meaning as determined by a dictionary. Id.; Collins v. Dep’t of Soc. Servs., Family Support Div., 141 S.W.3d 501, 505 (Mo.App. S.D.2004). In so doing, we will not “construe a statute or regulation to produce unreasonable, oppressive, or absurd results.” Daly v. State Tax Comm’n, 120 S.W.3d 262, 267 (Mo.App. E.D.2003) (emphasis omitted).

Vaughn’s use of the farmland is sufficient under the plain and ordinary meaning of Section 40-2.030(8)(B). The regulation provides that real property counts as a resource if it is “not being used directly by the claimant in the course of his/her business or employment.” 13 C.S.R. § 40-2.030(8)(B). By its plain language, the regulation does not require that Vaughn serve as the director of the farm or physically use the land. Black’s Law Dictionary defines the term “directly” as “in a straightforward manner.” Black’s Law Dictionary 527 (9th ed.2009). Though Vaughn does not personally work on the land, Vaughn’s farming business plants and harvests crops on the farmland from which Vaughn profits. Consistent with the regulation’s requirement, Vaughn is using the land “in a straightforward manner” in her farming business.

Section 40-2.030(8)(B) also requires that the real property produces an annual return consistent with its fair market value. Vaughn’s application stated that she earned $13,500 in farm income from the farmland, which was worth $345,000. The Division valued the property at $59,391 based on an assessment by the county assessor’s office. These values would result in an annual return on the farmland of either 3.9% or over 22%. The Director did not find this annual return to be insufficient, and the Division did not challenge the sufficiency of the return at the agency hearing or on appeal.

Because Vaughn’s farmland satisfied the requirements of Section 40-2.030(8)(B), the Director should not have included it when determining her eligibility for benefits. At the time of her application, Vaughn had less than $1000 in resources after the exclusion of her farmland, and the Director erred in denying her application for benefits.

In its brief, the Division advances two arguments beyond Section 40-2.030(8)(B) to support its rejection of Vaughn’s application. The Division first argues that Section 40-2.030(8)(A) is dis-positive of Vaughn’s claims and if it applies, then the farmland cannot be exempt under Section 40-2030(8)(B). Section 40-2.030(8)(A) provides for a homestead exemption for real property in which the claimant has lived as long as the claimant lived on the real property within the twenty-four months preceding the application. The Director’s decision did not apply this section of the regulation, but the Division correctly notes that our primary concern on appeal is the correctness of the result rather than the route taken to reach it. Braddock v. Mo. Dep’t of Mental Health, 200 S.W.3d 78, 80 (Mo.App. W.D.2006). However, the Director did not make any finding that would allow us to apply Section 40-2.030(8)(A) rather than Section 40-2.030(8)(B). While it is true that there was evidence at the hearing suggesting that Vaughn had lived on the farmland, the Director’s decision did not make any such finding or even mention this evidence. Without such a finding, we cannot apply Section 40-2.030(8)(A) as the Division urges, and we need not address whether the sections are mutually exclusive.

The Division next claims that even if Vaughn’s use of the property was sufficient under Section 40-2.030(8)(B), only $6000 of the farmland’s value should be excluded from the eligibility calculation. Missouri does not have a statute or state regulation imposing a maximum exemption on property used in a business. The Division bases this argument on federal law and specifically cites 20 C.F.R. § 416.1222 (2008), which purports to place a $6000 cap on the federal exemption for real property used in a trade or business. However, the Division fails to recognize that long before Vaughn’s application, Congress amended the applicable federal statute, 42 U.S.C. § 1382b(a)(3), to provide that “the Commissioner of Social Security shall not establish a limitation on property ... that is used in a trade or business.... ” Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, 103 Stat. 2106, 2465 (1989). Given the lack of Missouri law imposing a cap and the statutory amendment, we must reject the Division’s argument that a $6000 cap applies to Vaughn’s farmland. Point denied.

Conclusion

The circuit court’s judgment is affirmed.

KURT S. ODENWALD, P.J., and ROBERT G. DOWD, JR., J., Concur.

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

      . All regulatory references are to the Missouri Code of State Regulations (2007), unless otherwise indicated.

      . At oral argument, the Division also argued that Missouri's status as a "Section 209(b) state” supports its argument that 20 C.F.R. § 416.1222 imposes a $6000 cap on Vaughn's property exemption. This contention is without merit. Section 209(b) status signifies that pursuant to 42 U.S.C. § 1396a(f), a state has elected to provide Medicaid benefits only to claimants who "would have been eligible under the State's Medicaid plan in effect on January 1, 1972, as opposed to using the more liberal eligibility standards under [Supplemental Security Income].” Gee v. Dep't of Soc. Servs., Family Support Div., 207 S.W.3d 715, 720 (Mo.App. W.D.2006). However, the Division has cited no Missouri regulation imposing a cap on this exemption at any time, and the federal regulation, 20 C.F.R. § 416.1222, did not even exist until after 1972. See Income and Resources, 40 Fed. Reg. 48,915 (Oct. 20, 1975).


text:
    David PETERS, Appellant, v. Gilbert L. PETERS, Jr., Individually and Janet M. Trent, Respondents.
    No. ED 94219.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 13, 2010.
    Application for Transfer Denied Nov. 16, 2010.

      Mark Wenner, Clayton, MO, for appellant.
    Peter Gianino, Jr., Clayton, MO, for respondents.
   NANNETTE A. BAKER, Judge.

Introduction

David Peters (“David”) appeals from the trial court’s grant of summary judgment on his petition for an accounting of the Gilbert L. Peters and Marcella K. Peters Revocable Living Trust (“Peters Trust”) and a declaratory judgment. On appeal, David claims that the trial court erred in granting summary judgment because he was a lawful beneficiary of his father’s trust, and that the trial court erred in finding that the Peters Trust was still revocable after Marcella Peters (“Marcella”)’s death. We affirm in part and reverse and remand in part.

Factual and Procedural Background

Gilbert and Marcella Peters established a revocable living trust on February 5, 1991. The parties were named as joint trustees with the survivor to continue as sole trustee upon the death of either person, and Gilbert Peters Jr. (“Gilbert Jr.”) appointed as successor trustee. On June 21, 1991, Gilbert Peters Sr. (“Gilbert Sr.”) and Marcella conveyed their personal interest in a piece of property in Morgan County to the Peters Trust. In 1992, the parties amended the Peters Trust to provide that the successor trustee shall pay any assets held to a beneficiary over age 35 who has survived the sole trustee.

Marcella died December 24, 1995. On March 8, 2002, Gilbert Sr. conveyed the same Morgan County property from the Peters Trust to himself as an individual. On November 1, 2004, Gilbert Sr. executed a beneficiary deed that identified Gilbert Jr. as the beneficiary of the Morgan County property upon Gilbert Sr.’s death. Gilbert Sr. amended the Peters Trust again in 2002, 2006 and 2007. On January 14, 2008, the probate division of the St. Louis County Circuit Court found Gilbert Sr. to be incapacitated and disabled by reason of dementia, and named Gilbert Jr. as conservator of the Peters Trust. David sought accounting and other documentation in connection with the Peters Trust from Gilbert Jr. after he was appointed successor trustee in January 2008.

On October 27, 2008, David filed his first amended petition in equity, seeking a declaratory judgment that, among other things, the Peters Trust became irrevocable upon the death of Marcella and that David was a qualified beneficiary of the Trust. He claimed that, as a qualified beneficiary, he was entitled to an accounting. On April 30, 2009, Gilbert Jr. filed a motion for partial summary judgment on these counts. On August 24, 2009, the trial court granted summary judgment on the above counts. This appeal follows.

Standard of Review

Whether a motion for summary judgment should be granted is a question of law and our review is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is proper where the movant establishes the absence of any genuine issue of material fact and a legal right to judgment. Id. at 378. We will review the record in the light most favorable to the party against whom judgment has been entered. Id. at 376. Facts set forth by affidavit or otherwise in support are taken as true unless contradicted by the non-moving party’s response. Id. We will affirm the trial court’s judgment if it is sustainable on any theory. Id. at 387-88; Citibrook II, L.L.C. v. Morgan’s Foods of Missouri, Inc., 239 S.W.3d 631, 634 (Mo.App. E.D.2007).

A moving party who is a defendant:

establish[es] a right to judgment by showing (1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense. Regardless of which of these three means is employed by the [defendant], each establishes a right to judgment as a matter of law.

ITT Commercial Fin. Corp., 854 S.W.2d at 381.

Accounting

In his first point relied on, David claims that the trial court erred in finding that he was not entitled to an accounting by the successor trustee because the set-tlor had previously been adjudicated incapacitated and disabled by the St. Louis County Circuit Court Probate Division. We agree.

In Siefert v. Leonhardt, this court held that a beneficiary who has a future contingent interest in trust property has standing to bring a cause of action for an accounting against the trustee. 975 S.W.2d 489, 492 (Mo.App. E.D.1998). The Siefert court further held that, “this rule of law, which all of the leading authorities on trust law follow, is premised on the strong policy consideration of ensuring that someone has the power to enforce the trustee’s fiduciary duties.” Id. See also Restatement (Second) of Trusts Sec. 172, cmt. C.

Here, it is undisputed that Gilbert Sr. was adjudicated incapacitated and disabled. Section 456.6-603 provides, in pertinent part:

1. While a trust is revocable and the settlor has capacity to revoke the trust, rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the set-tlor.
2. A settlor is presumed to have capacity for the purposes of subsection 1 of this section until either the settlor is adjudicated totally incapacitated or disabled or the trustee has received an affidavit of incapacity.

In this case, Gilbert Sr. was adjudicated totally incapacitated and disabled on January 14, 2008. Therefore, Section 456.6-603(1) is not applicable and the duties of the trustee of the Peters Trust are no longer owed exclusively to the settlor, but also to the beneficiaries of the trust. Here, it is also undisputed that David is a beneficiary of the trust. A “beneficiary is always entitled to such information as is reasonably necessary to enable him to enforce his rights under the trust or to prevent or redress a breach of trust.” In re Marriage of Busch, 310 S.W.3d 253, 263 (Mo.App. E.D.2010) (citing RESTATEMENT (SECOND) OF TRUSTS, supra, at § 173 cmt. c.) As a beneficiary, David is entitled to an accounting of the Peters Trust. Point one is granted. Point two is moot and need not be discussed.

Revocable Trust

In his third point relied on, David claims that the trial court erred in finding that the Peters Trust is revocable because he contends that the joint trust became irrevocable upon the death of the first settlor, Marcella. He argues that the deeds on the Morgan County property that were executed after Marcella’s death were therefore void.

According to its definition in Section 456.1-103(22), “ ‘revocable,’ as applied to a trust, means that the settlor has the legal power to revoke the trust without the consent of the trustee or a person holding an adverse interest, regardless of whether the settlor has the mental capacity to do so in fact.” “The settlor has power to revoke the trust if and to the extent that by the terms of the trust he reserved such a power.” RESTATEMENT (SECOND) OF TRUSTS § 330 (1959). See also Kimberlin v. Dull, 218 S.W.3d 613, 616 (Mo.App. W.D.2007).

The paramount rule of construction in determining the meaning of a trust provision is that the grantor’s intent is controlling. Kimberlin, 218 S.W.3d at 616. The Peters Trust unambiguously states that Marcella and Gilbert Sr. intended for the trust to be revocable as long as one of them was still alive.

David argues that the language in Section C(2) of the Peters Trust applies only while both settlors are alive: “We reserve unto ourselves the right at any time during our lifetime to amend or revoke in whole or in part the trust hereby created without the necessity of obtaining the consent of the beneficiaries and without giving notice to the beneficiaries.” He contends that the words “our lifetime” support his argument that the right to revoke existed only before one of the settlors, in this case, Marcella, died. We disagree.

To construe the language of Section C(2) as David does, wholly ignores the provision in Section B(2) of the Peters Trust, which provides that: “Upon the death of one of us, the survivor shall continue as Sole Trustee, with all of the powers and discre-tions conferred upon us as Joint Trustees.”

The Peters Trust explicitly allowed the joint trustees the power to revoke the trust at any time via the language in Section C(2). Section B(2) unambiguously provides that the surviving sole trustee has all the powers of the joint trustees. The trial court did not err in finding that the Peters Trust was revocable. Point denied.

Conclusion

For the foregoing reasons, that part of the judgment of the trial court concerning the accounting is reversed and remanded for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.

KURT S. ODENWALD, P.J., and ROBERT G. DOWD, JR., J., concur.

      . Although we use the parties’ first names to avoid confusion, we do not mean to be disrespectful.

      . On January 14, 2010, the trial court dismissed Counts II and III of David’s First Amended Petition.

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