author: KATHIANNE KNAUP CRANE, Presiding Judge.

text:
    In re the MARRIAGE OF Sharon L. BROWN and Stacey O. Brown Sharon Lee Brown, Petitioner/Respondent, v. Stacey Orlando Brown, Respondent/Appellant.
    No. ED 93084
    Missouri Court of Appeals, Eastern District, Division One.
    May 18, 2010.

      Sharon L. Brown, St. Louis, MO, pro se.
    Frank J. Niesen, III, St. Louis, MO, for appellant.
   KATHIANNE KNAUP CRANE, Presiding Judge.

Husband appeals from a decree of dissolution of marriage. On appeal, he claims the trial court erred in failing to make an express determination of paternity, in awarding “joint” legal custody to wife, and in failing to award attorney’s fees to him. We remand for an express determination of paternity and for an order addressing both parties’ request that the child’s birth certificate be amended. We also reverse and remand for clarification of that part of the judgment awarding legal custody. In all other respects, we affirm.

Stacey Brown (husband) and Sharon Brown (wife) were married in June 1998. There was one child, T.B., who was born prior to the marriage on February 3, 1994. On June 18, 2008, wife filed a petition for dissolution of marriage and for declaration of paternity, custody, and support. In her petition, wife alleged that husband was the biological father of T.B. She sought a court order declaring husband to be the biological father of T.B. and an order amending T.B.’s birth certificate to show husband as the father. She also requested that the trial court grant joint legal and joint physical custody of T.B. to her and husband. Husband filed an answer and counter-petition for dissolution of marriage in which he acknowledged that he was T.B.’s biological father and sought a court order declaring him to be T.B.’s father. Husband also sought a court order that T.B.’s birth certificate be amended to show husband as the father. At trial, husband and wife both testified that husband was T.B.’s biological father. Also during trial, wife testified that she was seeking sole legal and sole physical custody of T.B.

The trial court thereafter entered a decree dissolving the marriage. As relevant to this appeal, the trial court found that both parties had testified that husband was the biological father of T.B. and that no other man had acknowledged T.B. as being his own. It found that husband had “affirmatively asserted his paternity in, to and over the child.” The court further found that although wife had requested joint legal and joint physical custody of T.B. in her petition, she testified that she was seeking sole legal and sole physical custody. It found that wife was a more appropriate physical custodian for T.B. The court then made the following order with respect to custody:

E. Custody
The Court awards joint legal custody of the above-named minor child to Wife. Wife shall have sole physical custody of the child. Wife’s residence is also designated as the primary residence of the minor child for mailing and educational purposes pursuant to RSMo. § 452.375. The Court has considered the public policy stated in RSMo. § 452.375.4 and each of the factors listed in RSMo. § 452.375.2 and enters orders of custody and visitation in accordance with the Parenting Plan submitted by [Wife], attached hereto as Exhibit 4.

(Emphasis added.) Exhibit 4, referenced in the judgment, had a section entitled “Legal Custody,” which contained paragraphs 6 through 13. Paragraph 6 provided:

6. Legal Custody: Mother shall confer with Father, before making any final decisions on issues affecting the growth and development of the childfren) .... However, each parent may make decisions regarding the day-to-day care and control of the child(ren) and in emergencies affecting the health and safety of the child(ren) while the children) is(are) residing with him or her. The parents shall endeavor, whenever reasonable, to be consistent in such day-to-day decisions. There shall be no shared-decision making because the parents do not communicate and have been unable to communicate.

Paragraph 13 provided:

13. Resolution of Disputes: If the parties fail to agree on the interpretation of the Parenting Plan, or are unable to agree upon a final decision on issues affecting the growth and development or health and safety of the child(ren), they shall submit the dispute to a mutually agreed mediator and shall make a good faith effort to resolve their differences through the mediation process. In the event they are not able to agree on a mediator they shall each select a mediator from the list of approved mediators maintained by the St. Louis County Family Court and the two mediators shall determine who shall mediate the case. In the event that the parties cannot resolve the dispute by mediation they may file a motion and submit the issue to the Court.

(Emphasis added.) The trial court also ordered each party to pay his or her own attorney’s fees.

DISCUSSION

Preservation of Error

The first two points have not been preserved for appeal because husband did not file a post-trial motion pursuant to Rule 78.07(c). Rule 78.07(c) provides: “In all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.” The purpose of this rule, as amended in 2005, has been explained as follows:

The amendment [to Rule 78.07] was intended to reduce and discourage appeals and subsequent technical reversals for errors in the form of judgments that could easily be corrected by bringing them to the attention of the trial judge. Observation has shown that there have been very few second appeals after the findings are made on remand despite what experience tells us are probably few changes on the merits in the new order. We suspect that this is so because often there was substantial evidence in the record to support findings in favor of the non-appealing party but, under our case law, we could not look to that evidence in the absence of findings.
The situation before the amendment allowed a substantial waste of judicial time and even more importantly a waste of emotional and financial resources of the parties in appeals securing reversals but with no substantive changes in the court’s eventual judgment. Moreover, the then state of appellate review of these types of claims conflicted with the provisions of Rule 84.13(b), which states, “No appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action.” (Emphasis added.)

Wilson-Trice v. Trice, 191 S.W.3d 70, 72 (Mo.App.2006). In this case, husband did not make a motion to amend the judgment based on his allegations that the court failed to make a paternity finding or made internally inconsistent findings relating to its award of legal custody. Had husband included these errors in a Rule 78.07(c) motion to amend the judgment, the trial court could have addressed these issues and clarified its judgment. For this reason, these two points are not preserved for appeal. See Kinner v. Scott, 216 S.W.3d 715, 721 (Mo.App.2007); Wilson-Trice, 191 S.W.3d at 72. Nevertheless, because a child is involved, we will review them.

I. Paternity Finding

For his first point, husband asserts that the trial court erred in ordering him to pay child support and by determining the physical and legal custody of T.B. without first finding that husband was the biological father of T.B.

The trial court made the following findings related to paternity:

There is one unemancipated child born prior to the marriage: [T.B.], born February 3, 1994. Husband’s name does not appear on the birth certificate of child. The parties both testified that Husband is the biological father of the minor child. No other man who might be the father has acknowledged the child as his own by affirmatively asserting his paternity in, to and over the child. Husband has affirmatively asserted his paternity in, to and over the child. Husband is requesting that the child’s birth certificate be amended to show that he is the biological father.

Although these findings indicate that there is no dispute that husband is the biological father of T.B., the court did not expressly so find. In addition, if the trial court had found husband to be T.B.’s biological father, it was statutorily required to order “that an amended birth registration be made pursuant to Section 210.849.” Section 210.841.2 RSMo (2000). Although both parties requested this relief, the trial court did not order T.B.’s birth certificate changed. Accordingly, the judgment must be remanded for an express determination of paternity and a consistent order with respect to T.B.’s birth certificate as required by section 210.841.2 RSMo (2000).

II. “Joint” Legal Custody to Wife

For his second point, husband asserts that the trial court’s judgment is internally inconsistent and unclear because the judgment awarded “joint” legal custody of T.B. to wife and neither the judgment nor Exhibit 4, referenced in the judgment, indicates whether the trial court intended to award joint legal custody to both parties or sole legal custody to wife.

Missouri recognizes two forms of legal custody: “sole legal custody” and “joint legal custody”. Section 452.375.1 RSMo (Cum.Supp.2006); Malawey v. Malawey, 137 S.W.3d 518, 525 (Mo.App.2004). Joint legal custody is defined as a situation in which “the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority.” Section 452.375.1(2). See also In re Marriage of Sutton, 233 S.W.3d 786, 790 (Mo.App.2007).

In determining whether joint legal custody is in the child’s best interests, we consider the parties’ commonality of beliefs concerning parental decisions, the parties’ ability to function as a parental unit in making those decisions, and the parties’ demonstrated “willingness and ability to share the rights and responsibilities of raising their children.”

Sutton, 233 S.W.3d at 790 (quoting In re Marriage of M.A. and M.S., 149 S.W.3d 562, 569 (Mo.App.2004)). The parties’ inability to cooperate, communicate, and function as a unit in making decisions makes joint legal custody inappropriate. Id.

Here, we are unable to discern from the language of the judgment whether the court intended to award legal custody to one or both parents. The award of “joint legal custody” to only one parent is illogical because “joint” legal custody is an award to both parents. See section 452.375.1(2). There is language in Exhibit 4 consistent with joint legal custody and other language consistent with sole legal custody. The first sentence of paragraph 6 requires husband and wife to confer before making decisions concerning the growth and development of T.B. In addition, paragraph 13 requires the parties to submit any disputes over decisions affecting the growth and development of T.B. to a mediator. However, the last sentence of paragraph 6 appears to describe sole legal custody because it provides that there shall be no shared decision-making between husband and wife.

When a judgment demonstrates this type of inconsistency, the remedy is a remand for the trial court to clarify its judgment. Plant v. Plant, 936 S.W.2d 186, 188 (Mo.App.1996). See also Moore v. Moore, 971 S.W.2d 943, 945 (Mo.App.1998). In this case, that part of the judgment awarding joint legal custody to one parent is erroneous and must also be reversed. Therefore, that part of the judgment awarding legal custody is reversed and remanded for clarification. Point two is granted.

III. Attorney’s Fees

For his third point, husband asserts that the trial court erred in not awarding him attorney’s fees because he had no ability to pay the fees, whereas wife had that ability. We disagree.

“Generally speaking, parties to a domestic relations case are responsible for paying their own attorney’s fees.” Ethridge v. Ethridge, 239 S.W.3d 676, 684 (Mo.App.2007). The trial court has broad discretion in awarding or denying a party’s request for attorney’s fees, and we will not overturn a trial court’s order absent a showing that the trial court abused its broad discretion in ordering, or in refusing to order, one party to pay the attorney’s fees of the other party. Russell v. Rus sell, 210 S.W.3d 191, 199 (Mo. banc 2007); Judy v. Judy, 998 S.W.2d 45, 54 (Mo.App.1999).

The burden of demonstrating an abuse of discretion is on the complaining party, who must “show that the order for attorney’s fees is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one’s sense of justice and to indicate a lack of deliberation.”

Judy, 998 S.W.2d at 54 (quoting L.A.L. v. L.L., 904 S.W.2d 50, 55 (Mo.App. E.D.1995)). We presume an award of attorney’s fees to be correct, and husband has the burden to prove otherwise. Tice v. Tice, 872 S.W.2d 148, 150 (Mo.App.1994).

Section 452.355.1 RSMo (2000) gives the trial court discretion to award attorney’s fees to one spouse after considering all relevant factors, including the financial resources of the parties, the merits of the case, and the parties’ conduct during the pendency of the action. Thus, “[s]ection 452.355.1 permits, but does not compel, a trial court to award attorney fees.” In re Marriage of Thompson, 24 S.W.3d 751, 756 (Mo.App.2000).

Husband argues that he should be awarded attorney’s fees and expenses because he was unemployed at the time of trial and had no ability to pay these expenses and because wife had sufficient income and assets to pay husband’s attorney’s fees and costs. Husband’s argument has no merit because the trial court found that although husband was unemployed, he had failed to exert any efforts to improve his financial situation because he was being supported by his mother, and that with effort, husband could meet his reasonable needs and was able to support himself. See Judy, 998 S.W.2d at 54.

The trial court did not abuse its discretion in denying husband’s request for attorney’s fees. Point three is denied.

IV. Award of Sole Legal Custody

For his fourth point, husband asserts that, if the trial court intended to award sole legal custody to wife, that decision was not supported by the evidence. This argument is premature and cannot be addressed until the judgment has been clarified. See e.g., Plant, 936 S.W.2d at 188. Point four is denied.

Conclusion

The cause is remanded for an express determination of paternity and a consistent order with respect to the child’s birth cer-tifícate as required by section 210.841.2 RSMo (2000). That part of the judgment awarding legal custody is reversed and remanded for clarification. In all other respects, the judgment is affirmed.

CLIFFORD H. AHRENS, J. and NANNETTE A. BAKER, J., concur.

      . Although husband did not raise the issue of the birth certificate on appeal, both parties requested this relief in the trial court, and we remand as a matter of plain error. See In re Marriage of Hayes, 12 S.W.3d 767, 770 (Mo.App.2000).

      . All further statutory references are to RSMo (Cum.Supp.2006), unless otherwise indicated.


source: Caselaw Access Project

author: NANNETTE A. BAKER, Judge.

license: Public Domain

text:
    Noah COMEAUX, Appellant, v. CONVERGYS CUSTOMER MANAGEMENT GROUP, INC. and Division of Employment Security, Respondents.
    No. ED 93900.
    Missouri Court of Appeals, Eastern District, Division One.
    May 18, 2010.

      John Ammann, St. Louis, MO, for appellant.

      Convergys e/c UC Express, St. Louis, MO, pro se.
    Bart Matanie, Jefferson City, MO, for respondents.
   NANNETTE A. BAKER, Judge.

Introduction

Noah Comeaux (“Employee”) appeals from the Labor and Industrial Relations Commission’s (“Commission”) decision finding that he was disqualified for unemployment benefits. On appeal, Employee contends the Commission erred in finding that he was discharged for misconduct connected with his work. We reverse and remand.

Factual and Procedural Background

On June 9, 2009, a deputy for the Division of Employment Security determined that Employee was disqualified from receiving unemployment benefits based on a finding that Employee was discharged on May 19, 2009 for misconduct connected with his work. Employee appealed the deputy’s decision to the Division Appeals Tribunal. The Appeals Tribunal held a hearing on August 4, 2009 and heard the following evidence from Employee and his supervisor Columbus Smith.

Employee worked as a customer service representative for Convergys Customer Management Group. Inc. (“Employer”). He began working for Employer in November 2005. In early 2006, Employee began working on the Home Depot program where he made outbound calls to customers who had filled out a form indicating their interest in a particular service. This type of call is known as a “warm” call. Smith testified that the disposition of the call would change immediately if the customer stated he or she was not interested. Smith stated, “If they say do not call back ... it gets dispositioned so we try and match the customer’s desires.”

Employer previously warned Employee about his performance on or about January 29, 2009, March 31, 2009, and April 23, 2009. On April 23, 2009, Employer placed Employee on an “action plan for quality” that involved improving the quality of the call by being friendlier to customers. Employee successfully completed the action plan on May 8, 2009.

On May 15, 2009, Employee made an outbound call, intending to speak with a woman regarding roofing. The woman’s husband answered the phone. He stated that they were eating dinner, and asked why Employee was calling. When Employee answered, the man responded that they did not need roofing. At this point, a quality control representative overheard Employee’s voice becoming tense and notified Smith to review the call. Smith testified that Employee’s voice was “curt and short” and “a little louder than normal speaking volume.” In his notes from the call, Employee also referred to the man who answered the call as “Mr. Smarty Mouth.” Employer terminated Employee on May 19, 2009 for being rude toward a potential customer on an outbound call.

On appeal, the Appeals Tribunal affirmed the deputy’s determination. Employee timely appealed to the Commission, and the Commission affirmed and adopted the determination of the Appeals Tribunal. The Commission found that Employer discharged Employee because he was “rude towards a potential customer while making an out-bound sales call” and “was aware that he was required to treat all customers in a respectful manner.” One commissioner filed a dissenting opinion, stating that Employee’s conduct did not meet the definition of “misconduct” for the purposes of Missouri Employment Security Law. This appeal follows.

Standard of Review

Article 5, Section 18 of the Missouri Constitution and Section 288.210 set forth the standard for reviewing decisions of the Commission in unemployment compensation cases. On appeal, this court may:

modify, reverse,' remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.
Section 288.210

Deference is given to the Commission’s determinations as to the weight of the evidence and the credibility of the witnesses. Freeman v. Gary Glass & Mirror L.L.C., 276 S.W.3d 388, 391 (Mo.App. S.D.2009). Absent fraud, the Commission’s findings of facts are conclusive so long as they are supported by substantial and competent evidence. Section 288.210; Frisella v. Deuster Elec., Inc., 269 S.W.3d 895, 898 (Mo.App. E.D.2008). To determine, whether the facts are supported by substantial and competent evidence, we examine the record as a whole. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). “An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.” Id.

While deference is given to the Commission’s findings of fact, this court reviews questions of law, including the application of law to the facts, de novo. Freeman, 276 S.W.3d at 391. Whether the Commission’s findings support the conclusion that an employee’s conduct meets the definition of “misconduct” is a question of law. Frisella, 269 S.W.3d at 898.

Discussion

Employee presents one point on appeal claiming that the Commission erred in determining that Employee’s discharge was due to misconduct connected with his work. Employee argues that his job performance falling below Employer’s expectations alone does not constitute misconduct.

Section 288.030.1(23) defines “misconduct” as:

an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and sübstantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.

A finding of misconduct requires that the employee. willfully violated the rules and standards of the employer. Wieland v. St. Anthony’s Med. Ctr., 294 S.W.3d 77, 79 (Mo.App. E.D.2009). While poor judgment or irresponsible actions may justify an employee’s discharge, “it does not necessarily provide a basis for disqualifying [an employee] from receiving unemployment benefits.” Scrivener Oil Co., Inc. v. Div. Employment Sec., 184 S.W.3d 635, 641 (Mo.App. S.D.2006); see also Frisella, 269 S.W.3d at 899. There is a “vast distinction” between conduct that would justify an employer terminating an employee and conduct that is misconduct for the purposes of denying unemployment benefits. Williams v. Enter. Rent-A-Car Shared Servs., LLC, 297 S.W.3d 139, 144 (Mo.App. E.D.2009).

Generally, an employee bears the burden of proving eligibility for unemployment compensation benefits. Frisella, 269 S.W.3d at 899. However, when an employer claims an employee was discharged for misconduct, the burden shifts to the employer to show that the misconduct was connected with the employee’s work. Id. An employer must show by a preponderance of the evidence that the employee willfully or intentionally disregarded or violated the employer’s rules. Scrivener, 184 S.W.3d at 641.

This court must determine whether, based on the evidence adduced, the Commission’s legal finding that Employee’s conduct constituted misconduct connected with his work was sufficiently supported by the evidence. We find the Commission’s finding was not supported by the evidence.

In this case, Employer presented evidence that Employee’s voice was “getting tense” with a customer and telling him not to be rude. Employer also presented evidence that Employee wrote “Mr. Smarty Mouth” in his call notes and Employee admitted writing this statement. As in Hoover v. Community Blood Center, while Employee’s actions could be viewed as inappropriate, Employer never shows that Employee’s behavior was anything more than a lack of judgment. 153 S.W.3d 9 (Mo.App. W.D.2005). In Hoover, the employee, a donor care technician for a blood bank, received a warning after making several errors in reviewing donor history forms and failing to place unit number labels on donation bags resulting in the destruction of multiple collections of blood units. Id. at 10-11. The employee also made inappropriate comments to a donor. Id. at 11. The court found the employee’s mistakes related to the collection of blood units constituted negligence and poor workmanship, but did not rise to the level of misconduct for the purposes of unemployment compensation law. Id. at 14. The court found that the employee’s comments to the blood donor were intentional, insensitive and inappropriate, but did not find evidence of an improper motive for making the statements. Id. Similar to Hoover, in this case, Employee had been warned about his performance, and he also made an inappropriate comment about a customer. However, unlike in Hoover, Employee did not communicate the inappropriate comment to the customer.

In its brief, the Employer specifically argues, “It is likely that Employer’s client reviews the logs of customers on behalf of the client. That means, that Employer’s client might see such derogatory and inappropriate language that could have a negative impact on Employer. Employer could lose the client over such an occurrence.” (emphasis added). Employer presented no evidence that Home Depot does in fact review the call logs nor does it establish how that written comment could have a negative impact on Employer.

Employer also argues that the May 15, 2009 phone call was willful because Employee worked for Employer for more than three years without receiving any warnings and then received three warnings in four months. Employer cites to Freeman v. Gary Glass & Mirror, L.L.C. to support this proposition. 276 S.W.3d at 388. In Freeman, after three problem-free years with the employer, the employee intentionally turned away profitable business. 276 S.W.3d at 392. The employee testified he had no explanation for the change in his work habits and the court found that his misconduct was willful. Id. In this case, Smith testified that Employee worked for Employer for three years before receiving any warnings. However, Smith also testified that Home Depot had “really start [ed] to crack down” and require a more “user-friendly” atmosphere with customers. Unlike the employee in Freeman, Employee took steps to correct his behavior and successfully completed an action plan. Employer did not present competent and substantial evidence that Employee’s behavior had changed.

Respondent cites three cases in support of its position that Employee’s actions constituted misconduct but all are distinguishable from the facts in this case. In Powell v. Division of Employment Security, Labor and Industrial Relations Commission of Missouri, the employee was employed for three months but was often tardy, took extended lunch periods and left work early. 669 S.W.2d 47, 49 (Mo.App. W.D.1984). The employee’s deficient job performance resulted in a monetary loss to the employer. Id. The court found that poor attitude alone cannot usually rise to the level of misconduct that disqualifies an employee from receiving benefits. Id. at 51. However, “poor attitude coupled with specific conduct adverse to an employer’s interest or resulting in detriment to an employer can justify a finding of misconduct.” Id. In this case, Employee used poor judgment when writing “Mr. Smarty Mouth” in his call notes, but Employer did not offer any evidence to show how this would impact their business. Smith’s testimony that Employee’s voice was “curt and short” and only a “little louder” than normal speaking volume is not sufficient and competent evidence of conduct adverse to Employer’s interest.

In Dixon v. Stoam Industries, Inc., the employee refused to comply with a lawful and reasonable directive from his supervisor when employee’s supervisor asked him to move to a different process and he refused. 216 S.W.3d 688, 694 (Mo.App. S.D.2007). Similarly, in Freeman, the employer presented testimony that the employee intentionally turned away profitable business from the employer and deliberately disobeyed his superior on more than one occasion. 276 S.W.3d at 392. The employee recommended the installation of shower doors after being specifically told not to; employee used two-inch screws on an installation when specifically told to use three-inch screws; and employee failed to double check measurements on a mirror after he had specifically been instructed to do so. Id. Here, Employer did not present evidence that Employee was intentionally rude to the customer or that he disobeyed his superior. Employer testified as to Employee’s voice and his written statement but did not show that Employee intentionally disobeyed a directive of his superiors.

Employer must show by a preponderance of the evidence that Employee willfully violated Employer’s rules. Scrivener, 184 S.W.3d at 641. Employer has not met that burden in this case. A thorough review of the whole record reveals nothing more than poor judgment and while Employee’s behavior may have justified Employer’s decision to terminate Employee’s employment, we find that Employee’s acts do not rise to the level of misconduct for purposes of denying unemployment compensation benefits.

Conclusion

The Commission’s finding that Employee’s actions amounted to misconduct which disqualified him from receiving unemployment benefits.was not supported by competent and substantial evidence. Accordingly, we reverse and remand for the entry of an appropriate award.

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

      . According to Smith’s testimony, approximately ninety-eight percent of the calls are recorded.

      . This phrase is not in dispute. However, the findings of the Division of Employment Security Appeal’s Tribunal states "Mr. Smarty Mouth”; while, Employer’s "Counseling/Separation Record,” states "Mr. Very Smart Mouth.”

      . All further statutory references arc to RSMo 2000, unless otherwise indicated.


author: GARY M. GAERTNER, JR., Judge.

text:
    STATE of Missouri, Respondent, v. Michael PARTAIN, Defendant/Appellant.
    No. ED 91872.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 18, 2010.

      Matthew Ward, Columbia, MO, for appellant.
    Chris Koster, John M. Reeves, Jefferson City, MO, for respondent.
   GARY M. GAERTNER, JR., Judge.

Introduction

Michael Partain (Defendant) appeals from the trial court’s judgment entered upon a jury verdict convicting him of child molestation in the first degree, in violation of Section 566.067 RSMo 2000. We affirm.

Factual and Procedural Background

Defendant does not challenge the sufficiency of the evidence to support his conviction. As pertinent to Defendant’s point on appeal, the evidence, viewed in the light most favorable to the verdict, reveals as follows.

Victim A.K. was fifteen years old when she testified during Defendant’s trial. During her fourth grade year, A.K., then about eleven years old, and her family temporarily lived with her maternal grandmother and step-grandfather in Jefferson County, Missouri. A.K. and her siblings slept in the basement of her grandparents’ house. Defendant is her step-grandfather’s brother; A.K. had not met him before she and her family moved in with her grandmother. Although Defendant, an over-the-road truck driver, did not live with A.K.’s grandparents, he would occasionally stay overnight at their house, sleeping either in the guest room or on a pull-out couch in the living room.

Once, when A.K. was sleeping in a bunk bed in the basement with her siblings, Defendant shook her shoulder, whispering as he told her to wake up. A.K. was wearing a big tee shirt, and underwear. Defendant put his hand in A.K.’s underwear, touching and rubbing A.K.’s vagina. As he left A.K., Defendant told her not to tell anyone about what had happened. A.K. did not tell anyone because Defendant told her that he would hurt her or her siblings.

One night, after using the bathroom, A.K. had to walk through her grandparents’ living room where Defendant was sleeping on the pull-out couch. Defendant pulled her into the bed with him. Defendant let A.K. get out of the bed and leave when she told him that she had to get up early and go to school the next day. Again, A.K. did not tell anyone about this incident because she was scared.

About three years later, A.K.’s mother asked A.K. about Defendant, after A.K.’s little sister told her mother that Defendant made her feel creepy. When A.K. heard that her little sister had already talked to her mother about Defendant, A.K. thought it would be okay to tell her mother about Defendant’s touching incidents. A.K. was really upset, and felt embarrassed and ashamed that she had not told her mother earlier.

After A.K.’s mother learned what Defendant had done, she took A.K. and her sisters to the police station and filed a report. A.K.’s mother then took the girls to the Child Advocacy Center (CAC), where A.K. talked to an interviewer about the incidents. A.K. told the interviewer more about the incidents than what she had told her mother. A.K. did not want to tell her mother everything that had happened because A.K. did not want to make her mother more upset than she already was.

The CAC interviewer videotaped her interview with A.K. When the interviewer asked A.K. if she knew why she was at the CAC, A.K. responded that she was there to talk about Defendant. A.K. told the interviewer that Defendant “had put his hands down her pants.” Thereafter, A.K. described the bedroom incident when Defendant touched her vagina under her underwear. A.K. also told the interviewer about the incident where Defendant made her lie next to him on the pull-out couch and hugged her beside him. The CAC interviewer noted that A.K. appeared very-upset, concerned and embarrassed when she was describing the incidents.

The videotaped CAC interview was received into evidence as State’s Exhibit 2 for viewing by the jury. Although Defendant objected to the videotape as hearsay during a pretrial admissibility motion hearing, Defendant stated, “No objection,” when the State indicated its intent to play the videotape during trial. The videotape was shown to the jury.

After retiring for its deliberations, the jury requested to view two exhibits, including State’s Exhibit 2. When the trial court suggested that the jury be brought back to the courtroom to view Exhibit 2, Defendant said, “I have no problem with that, Judge.” The trial court brought the jury back to the courtroom to view the videotape, and later sent the other exhibit, a schematic drawing of the house where A.K. and her family lived with her grandparents, back to the jury room.

The jury found Defendant guilty of child molestation in the first degree. Defendant did not challenge the jury’s viewing of the videotape in his motion for new trial. This appeal follows.

Standard of Review

When a claim is not properly preserved, our review, if any, is limited to plain error. Rule 30.20; State v. Parker, 208 S.W.3d 331, 334 (Mo.App. S.D.2006). “[P]lain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Rule 30.20.

Discussion

In his sole point on appeal, Defendant claims the trial court plainly erred in allowing the jury to view State’s Exhibit 2, the CAC tape, during its deliberations because that action violated his right to a trial by a fair and impartial jury, as well as his right to due process, in that the exhibit, being testimonial in nature, unduly emphasized and bolstered Victim’s testimony, allowing the jury to give it undue weight.

Defendant concedes in his brief that his claim of error was not properly preserved for appellate review; thus, he requests that we review this claim for plain error under Rule 30.20. Plain error review involves a two-prong determination. Parker, 208 S.W.3d at 335. First, we determine whether plain error, that is, error that is evident, obvious, and clear, exists. Id. If we so conclude, then we advance to the second prong of the analysis, to consider whether a manifest injustice or miscarriage of justice has actually occurred as a result of the error. Id.

Defendant’s challenge here is not to the trial court’s initial admission of Exhibit 2, but, rather, to the trial court’s decision to allow Exhibit 2 to be shown to the jury during its deliberations. This distinction, among others, makes the Missouri Supreme Court’s determination in State v. Justus immaterial to our analysis here. State v. Justus, 205 S.W.3d 872, 874 (Mo. banc 2006)(Justus challenged his first-degree child molestation conviction on the basis that admission of victim’s statements violated his constitutional right to confront and cross-examine adverse witnesses, because child victim was unavailable as witness at trial and Justus had no opportunity to cross-examine her). It is within the trial court’s sound discretion whether a properly admitted exhibit will be shown to the jury during deliberations. State v. Irby, 254 S.W.3d 181, 191 (Mo.App. E.D.2008). Generally, exhibits that are testimonial in nature cannot be given to the jury during its deliberation, for the reason that such exhibits tend to unduly emphasize some of the testimony, raising the possibility the jury would afford it undue weight. Parker, 208 S.W.3d at 338, n. 8. However, we agree with the view expressed by the Southern District in Parker, that videotapes, such as Exhibit 2, do not fall within this bar. Id.

In Parker, the child victim and the interviewer testified, and the videotaped interview was played for the jury during trial. Id. at 339. On appeal, the defendant asserted that the trial court plainly erred and abused its discretion in sending a CAC videotape to the jury during its deliberations, over the defendant’s objections. Id. at 337. During deliberation, the jury viewed the videotape in the courtroom, and the tape was played only once. Id. at 339. As does Defendant here, Parker maintained the court’s action was error because the videotape “was testimonial in nature, which resulted in [the victim’s] testimony being unduly bolstered and emphasized, allowing the jury to give it undue weight.” Id. at 337. The Southern District held that “[b]eing a quasi-deposition, the videotaped interview was ‘distinct’ and not du-plicative of [the child victim’s] testimony at trial,” and it concluded that the videotape “could not be considered testimonial evidence such that it was prohibited from being viewed by the jury during its deliberations.” Id. at 339. Under the given circumstances, the Southern District found no error or abuse of discretion in the trial court’s decision to permit the jury to view the videotape. Id.

The circumstances before us here are almost identical to those in Parker. A.K. and the CAC interviewer both testified, and Exhibit 2 was played for the jury during trial. Id. A.K. testified that, during the interview, A.K. had elaborated on the touching incidents beyond what she was willing to talk about in her mother’s presence, indicating that the videotape was distinct and not a duplicate of A.K.’s trial testimony. See id. at 338 n. 9 (distinguishing holding in State v. Seever, 733 S.W.2d 438 (Mo. banc 1987), as prohibiting use of videotape to wholly duplicate live testimony of child witness); see also State v. Skipper, 101 S.W.3d 350, 353-54 (Mo.App. S.D.2003) (child victim’s out-of-court statements to third parties possess unique strengths and weaknesses, thus videotaped statements were distinct and not duplica-tive of trial testimony). The trial court below controlled the jury’s exposure to Exhibit 2 during deliberation by having it view the videotape in the courtroom and by playing the recording only once. Parker, 208 S.W.3d at 339. Under these circumstances, we likewise find no error or abuse of discretion in the trial court’s decision to allow the jury to view State’s Exhibit 2 during its deliberations. Id.

Point denied.

In its brief, the State points out that the trial court’s judgment incorrectly reflects that Defendant was sentenced upon entry of a guilty plea and asks this Court to correct the judgment nunc pro tunc to indicate that Defendant was convicted by a jury. The record supports this amendment; the clerical mistake of checking the incorrect box can be corrected by a nunc pro tunc order. See State v. Scott, 298 S.W.3d 913, 918 (Mo.App. E.D.2009). Accordingly, we remand with instructions to the trial court to enter an amended written judgment indicating that Defendant was found guilty by a jury.

Conclusion

The judgment of the trial court is affirmed. We remand with instruction to amend the written judgment to find that Defendant was convicted by a jury.

KURT S. ODENWALD, P.J., and GEORGE W. DRAPER III, J„ concur.

      . Section 492.304 allows for the admissibility of a videotape in a child sexual abuse case if the recording was made when the child was under the age of fourteen, when certain other requirements are met. Section 492.304.3 provides: "If the visual and aural recording of a verbal or nonverbal statement of a child is admissible under this section and child testifies at the proceeding, it shall be admissible in addition to the testimony of the child at the proceeding whether or not it repeats or duplicates the child's testimony.”

      . In Justus, the Supreme Court considered whether the victim’s hearsay statements, admitted under Section 491.075 and contained in a videotaped interview, were testimonial in nature. Justus, 205 S.W.3d at 877-81. In making its determination, the Court examined the circumstances surrounding the interview, noting that the interview involved direct questioning, and that the interviewer, while not a government worker, was acting as a government agent when she interviewed the child victim. Id. at 880. The Court further noted that the interview was performed to preserve the child's testimony for trial, and it opined that, even at four years old, the child victim was aware that her statement could be used to prosecute the defendant and that the interviewer was likewise aware of the interview’s purpose. Id. Concluding that the primary purpose of the interview was “to establish or prove past events potentially relevant to later criminal prosecutionL,]’’ the Court determined the child victim’s statements were testimonial. Id. at 880-81.


author: SHERRI B. SULLIVAN, P.J.

text:
    Thomas TURNER, Employee/Appellant, v. PROFFER TRANSPORTATION, INC., Employer/Respondent, and Division of Employment Security, Respondent.
    No. ED 93773.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 18, 2010.

      John J. Ammann, St. Louis University Legal Clinic, St. Louis, MO, for Employee/Appellant.

      Proffer Transportation, Inc., Acting pro se, Park Hills, MO, for Employer/Respondent.
    Bart A. Matanic, Division of Employment Security, Jefferson City, MO, for Respondent.
   SHERRI B. SULLIVAN, P.J.

Introduction

Thomas Turner (Employee) appeals from the Labor and Industrial Relations Commission’s (Commission) decision finding that he was disqualified for unemployment benefits. We reverse and remand.

Factual and Procedural Background

On April 2, 2009, a deputy for the Missouri Division of Employment Security (Division) determined that Employee was disqualified from receiving unemployment benefits based on a finding that Employee voluntarily left his work on March 17, 2009, without good cause attributable to his work or employer. Employee appealed the deputy’s decision to the Division Appeals Tribunal. The Appeals Tribunal held a hearing on June 3, 2009, at which the following evidence was adduced.

Employee worked as an over-the-road truck driver for Proffer Transportation Incorporated (Proffer or Employer) for three years. On March 10, 2009, Employee was called in to work to make a run from Park Hills, Missouri to North Platte, Nebraska. Employee was scheduled to leave Park Hills at 3:00 p.m. but was delayed until 6:00 p.m. due to a loading issue. Proffer is responsible for loading the truck. Employee’s load was scheduled for arrival in North Platte at 5:30 a.m. on March 11.

Prior to leaving, Employee discussed “the problem of legal logs” with Terry Walker (Walker), a manager and dispatcher for Employer. Employee told Walker that there was no way possible for him to drive the 728 miles to North Platte legally by 5:30 the next morning. Walker testified that the drive from Park Hills to North Platte takes 11 hours and that if Employee left by 6:00 p.m. he could have made it to North Platte by 5:00 a.m. Employee testified that while the North Platte run is logged in as taking 11 hours, the trip actually takes him 13 hours. Employee testified that to do the run in 11 hours would require an average speed of 68 miles an hour which is impossible because there are 200 miles of speed limits of 55 to 60 miles an hour or less and there are 6 weigh stations.

After an hour and a half of driving, Employee stopped for dinner. Employee continued to drive until 11:15 p.m., before taking his ten-hour break in Sweet Springs. Employee testified that he stopped because he was tired and, since he knew he could not make his drop-off appointment the next morning, he thought he would be better able to schedule the pickup of a return load if he took his break then.

The next morning, Employee drove approximately 10 miles before Proffer called and told Employee to stop and wait for another driver to pick up Employee’s load. After Employee transferred the load to the other driver and began driving back to Park Hills, Walker called Employee and informed him that he was suspended. Employer told Employee he needed to clean out the truck so that another driver could use it but did not advise Employee how long he was suspended. Employee collected his belongings and returned with the truck to Park Hills.

Employee called Proffer over the next two days to inquire about the length of his suspension. Walker advised Employee that he did not know and that Bengy Proffer, the owner of the company, was on vacation and would return the following Monday.

Employee testified that he called Proffer the following Monday to determine the length of his suspension and Walker could not give him an answer. Employee testified he told Walker, “Well, I’m going to file for my unemployment,” and Walker told him “that’s the thing to do.”

Employee testified he called Proffer again the next day, Tuesday, March 17, and told Walker that he needed to know how long he was suspended. Employee testified that at that time he also told Walker that Proffer could not continue making illegal runs and turning in “legal” log books. Employee admitted that when he called Employer and talked to Walker on March 17, that he told Walker “to stick his head up Bengy’s ass” and hung up the phone. Employee indicated he said this because he was upset but denied saying that he quit.

Employee testified that he called Proffer several more times about some personal items he had forgotten in the truck. Employee testified that on March 24, he went to Proffer’s office to pick up his personal things. Employee testified that while he was there he said to Walker, “I guess I’m still suspended,” and Walker stated, “I don’t know.” Employee testified that no one ever told him that he could return to work.

Walker testified that Employee was allowed to be on duty for 14 hours, 11 of which could have been drive time. Walker testified that he suspended Employee on March 11, 2009, because he felt that Employee did not make a sufficient attempt to reach North Platte in time.

Walker acknowledged that Employee did communicate with Employer after his suspension about whether Employee should return to work. Walker testified that he told Employee that Mr. Proffer was on vacation until the following Monday. Walker testified that when Employee called back on March 17, and Walker told Employee that he still did not have a definite answer for him, Employee told him that “he could stick his head up Ben-gy’s ass and that he quit” and hung up. Walker testified that he considered the employment relationship over on March 17.

Appellant subsequently filed a request for unemployment benefits. Employer protested the claim, alleging that it considered Employee telling Walker “to stick his head up Benjy’s ass” and hanging up on Walker on March 17, to be Employee’s resignation. Employer did not indicate that Employee specifically stated that he quit or that they discharged Employee for misconduct.

On June 9, 2009, the Appeals Tribunal Referee (Referee) issued her decision denying Employee benefits. The Referee found that Employee’s comment and action in hanging up the phone on Walker gave Proffer reason to believe that Employee did not intend to return to his employment. The Referee found that Employee was not informed that he was discharged and the suspension had not become a discharge by operation of Section 288.040.2 because it had not yet lasted four weeks. The Referee also found that while Employee was understandably concerned because he could not get information about the date he should return from the suspension, he had only been off work for about one week and he had not given Employer enough opportunity to resolve his concerns about the suspension or the legal operation of the vehicle. The Referee concluded that Employee voluntarily left his employment without good cause attributable to the work or Employer on March 17, 2009. Employee appealed the Appeals Tribunal’s decision to the Commission.

On September 15, 2009, the Commission issued its order affirming the decision of the Appeals Tribunal and adopting the Tribunal’s decision in part and making additional findings. The Commission found that after Employee was suspended on March 11, 2009, he called Walker several times over the next several days to inquire as to the status of his suspension and his employment. The Commission found that Employee was told that Mr. Proffer would be back on March 17, 2009. When Employee called back on that date and was unable to speak with anyone who could make a determination as to his employment status, Employee made a rude comment and hung up on Walker. The Commission found that this was the last time that Employee attempted to contact Employer regarding his employment status. Relying on the Mo. Aztar Riverboat Gaming Co., LLC. v. Janis, 125 S.W.3d 907 (Mo.App. W.D.2004), the Commission found that Employee was not indefinitely suspended by Employer. The Commission also found that while Employee was understandably frustrated that he was unable to ascertain the status of his employment, he made no further’effort to contact Employer after his comments to Walker on March 17, 2009. The Commission found that Employee’s comments to Walker and his failure to try to speak with Employer after that date showed bad faith and demonstrated Employee’s intent to quit. Based on these findings, the Commission concluded that Employee voluntarily left his employment without good cause attributable to the work or to Employer.

One of the three commissioners filed a dissenting opinion, stating that he believed the majority was placing undue emphasis on Employee’s frustrated comments in finding that Employee voluntarily quit. The dissent found that Employee demonstrated reasonableness and good faith in the face of Employer’s persistent equivocation, which included Employer telling Employee that it would be a good idea for him to file for unemployment. The dissent found that even if this could be classified as a voluntary quit, Employee established that that he terminated his employment for good cause attributable to the work and Employer.

This appeal follows.

Points on Appeal

In his first point on appeal, Employee argues that the Commission erred in denying him unemployment benefits because he did not voluntarily quit under Section 288.050.1(1) in that he was indefinitely suspended, he made repeated phone calls to his employer to inquire about the status of his employment during his suspension, and Employer never asked Employee to return to work or to meet in order to discuss his suspension and the status of his employment.

In his second point on appeal, Employee argues that the Commission erred in denying unemployment benefits to Employee because even if this Court determines that Employee voluntarily quit under Section 288.050.1(1), Employee has established that he terminated employment for good cause attributable to work and to Employer in that he believed Employer was requiring him to drive illegally fast and falsify log books and Employer continuously refused to give him an answer about the status of his employment.

In his third point on appeal, Employee argues that the Commission erred in denying him unemployment benefits because even if this Court determines Employee was terminated from his employment under Section 288.050.2, Employee’s refusal to drive illegally and falsify log books in order to meet Employer’s demands and his rude comment to a supervisor do not rise to the level of statutory “misconduct” which would disqualify him from benefits. Employee argues that Employer failed to meet its burden of establishing “misconduct.”

Standard of Review

On appeal from a decision in an unemployment benefits proceeding, this Court may modify, reverse, remand for rehearing, or set aside the Commission’s decision upon a finding that (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient competent evidence to warrant making the award. Section 288.210.

This Court defers to the Commission’s determinations as to the weight of the evidence and the credibility of the witnesses. Dixon v. Division of Employment Sec., 106 S.W.3d 536, 539-40 (Mo.App. W.D.2003). Absent fraud, the Commission’s findings of fact are conclusive if supported by competent and substantial evidence. Section 288.210. This Court, however, is not bound by the Commission’s conclusions of law or its application of the law to the facts. Ayers v. Sylvia Thompson Residence Center, 211 S.W.3d 195, 198 (Mo.App. W.D.2007).

When reviewing the Commission’s decision, we look at the whole record, not merely at the evidence that supports the Commission’s decision, to determine whether there is sufficient competent and substantial evidence to support the award. Reno v. Tyson Poultry, Inc., 204 S.W.3d 347, 350 (Mo.App. W.D.2006); Scrivener Oil Co., Inc. v. Division of Employment Sec., 184 S.W.3d 635, 638 (Mo.App. S.D.2006). The evidence is viewed objectively, not in the light most favorable to the Commission’s decision. Reno, 204 S.W.3d at 350. “A decision that is contrary to the overwhelming weight of the evidence in the record is not supported by competent and substantial evidence.” Janis, 125 S.W.3d at 909.

Discussion

The first issue on appeal is whether the Commission erred in determining that Employee voluntarily left his employment.

A claimant who voluntarily leaves his employment without good cause attributable to the work or employer is ineligible for unemployment benefits. Section 288.050.1. An employee voluntarily leaves his work, as opposed to being discharged, dismissed or laid off, when he leaves of his own accord and volition. Miller v. Help At Home, Inc., 186 S.W.3d 801, 806 (Mo.App. W.D.2006). The claimant has the burden of proving that he did not leave his employment voluntarily, or, that if he did, he did so with good cause. Id. The Commission’s determination of whether an employee voluntarily left his employment or was discharged is generally a factual question. Moore v. Swisher Mower & Machine Co., Inc., 49 S.W.3d 731, 738 (Mo.App. E.D.2001).

In this case, we find that the Commission’s finding that Employee voluntarily left his employment is not supported by competent, substantial evidence in the record.

Initially, it must be noted that the Commission’s finding that Employee did not attempt to contact Employer regarding his employment status subsequent to March 17, is wholly unsupported by the record. Employee testified that he contacted Proffer several times following the March 17 conversation to inquire about some of his personal items and that he went to Proffer’s office to pick up these items on March 24. Employee testified that while there, he said to Walker, “I guess I’m still suspended,” and Walker stated, “I don’t know.”

While the Commission determines the weight and credibility of the evidence, the Commission may not ignore relevant evidence that is completely undisputed and not shown to be disbelieved or not credible. Moore, 49 S.W.3d at 738. There is nothing in the record to support the Commission’s finding that Employee did not continue to contact Employer or to inquire about his employment status following Employee’s March 17 confrontation with Walker. Employee’s testimony was undisputed, and the Commission did not specifically find Employee’s testimony unbelievable. In the absence of contradictory evidence or a credibility determination, the Commission was not free to disregard Employee’s testimony. The Commission’s finding that Employee did not inquire about his employment status following his March 17 confrontation with Walker is not supported by competent and substantial evidence.

Likewise, viewing the whole record and the evidence contained therein objectively, the Commission’s finding that Employee voluntarily left his employment is contrary to the overwhelming weight of the evidence.

The Commission based its finding that Employee voluntarily left his employment on Employee’s actions on March 17, when he made a rude comment and then hung up the phone on Walker, combined with Employee’s failure to contact Employer following that confrontation. As already noted, the Commission’s finding that Employee failed to contact Employer after March 17 is unsupported by competent and substantial evidence.

In addition, while the Commission places significant emphasis on Employee’s rude comment and actions, the Commission ignored Employee’s undisputed testimony that Employer encouraged Employee to file for unemployment before the offending conversation. Employee testified that on the Monday following his suspension, he called Proffer and again asked Walker about the length of his suspension. When Walker could not give Employee an answer, Employee told Walker that he was going to file for unemployment. Employee testified that Walker responded: “[T]hat’s the thing to do.” As undisputed testimony, the Commission could not disregard or ignore this testimony which was not shown to be disbelieved or not credible. Moore, 49 S.W.3d at 738.

It is difficult to interpret Walker’s response as anything other than a direct implication that Employee had already, or in the near future was going to be, discharged by Employer. This implication, coupled with Employer’s repeated refusal to set any parameters on Employee’s suspension despite Employee’s continuous requests for information, demonstrates Employer’s intent to discharge Employee.

Employee’s rude comment and actions on March 17 are not indicative of an intent to quit, but were the result of his justified frustration with Employer’s inability or refusal to clearly inform Employee of the status of his employment. The Commission itself found that Employee was understandably frustrated by his inability to ascertain the status of his employment in spite of his numerous attempts to do so.

Viewing the evidence in the record objectively, the overwhelming weight of the evidence indicates that Employee did not voluntarily leave his employment. The record reveals that, after being suspended for an indeterminate period of time, Employee repeatedly took steps to preserve his employment by frequently calling Employer to inquire about the status of his employment. After repeatedly being put off by Employer, Employer encouraged Employee to file for unemployment. In spite of this, the record indicates that Employee made at least two more attempts to determine the status of his employment and to preserve his job. Employer never informed Employee if, or when, Employee could return to work from his suspension. Based on the foregoing, we find that the Commission’s finding that Employee’s rude comment and actions constituted a voluntary quit is unsupported by competent and substantial evidence.

Because we find that the Commission erred in finding that Employee voluntarily quit, we need not address Employee’s remaining points on appeal.

Employer argues, in the alternative, that this Court should affirm the Commission’s finding that Employee is disqualified from benefits because, if Employer is found to have terminated Employee, Employer demonstrated that Employee’s actions constituted misconduct. In its brief, Employer requests this Court to affirm on the record and does not suggest that remand is necessary for additional factual finding by the Commission.

However, this issue was not raised by Employer in its protest to Employee’s claim for benefits and was not considered by the Commission. As such, the Commission did not make any findings of fact or conclusions related to this issue in its determination. In light of the record on appeal and Employer’s apparent failure to raise this issue before the Commission, this Court will not consider Employer’s contention that the Commission’s award may be affirmed on this basis. See Davis v. Transportation Sec. and Div. of Employment Sec., 295 S.W.3d 594, 597 (Mo.App. E.D.2009), quoting Jones v. GST Steel Co., 272 S.W.3d 511, 515 (Mo.App. W.D.2009) (“ ‘Issues not raised before the Commission may not be raised on appeal.’ ”).

Conclusion

The Commission’s decision denying Employee unemployment benefits on the basis that he left work voluntarily is reversed, and the case is remanded with directions to remove Employee’s disqualification.

ROBERT G. DOWD, JR., J„ and PATRICIA L. COHEN, J., concur.

      . Section 288.040.2 RSMo Supp.2008 provides that suspensions lasting four weeks or more shall be treated as discharges.

      . All statutory references are to RSMo 2006, unless otherwise indicated.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Patrick COYNE, Appellant.
    No. ED 93596.
    Missouri Court of Appeals, Eastern District, Division One.
    May 18, 2010.

      Andrew E. Zleit, St. Louis, MO, for appellant.
    John L. Wright, St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Patrick Coyne (Defendant) appeals the trial court’s judgment and sentence after a jury convicted him of stealing and third-degree assault.

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 30.26(b).


text:
    Dorothy SHEALEY, Appellant, v. AMERISTAR CASINO ST. CHARLES, INC. and Division of Employment Security, Respondents.
    No. ED 93810.
    Missouri Court of Appeals, Eastern District. Division One.
    May 18, 2010.
    Dorothy Shealey, St. Louis, MO, pro se.
    Arthur Neuhedel, Overland Park, KS, Ninion Riley, Jefferson City, MO, for respondents.
    Before KATHIANNE KNAUP CRANE, P. J., CLIFFORD H. AHRENS, J., and NANNETTE A BAKER, J.
   ORDER

PER CURIAM.

Dorothy Shealey appeals pro se from the Labor and Industrial Relations Commission’s decision finding that she was disqualified for unemployment compensation benefits because she was discharged for misconduct connected with her work.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. 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).


text:
    Jason M. TWEEDY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70279.
    Missouri Court of Appeals, Western District.
    June 1, 2010.

      Mark A. Grothoff, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq., and Robert J. Bartholomew, Esq., Jefferson City, MO, for respondent.
    Before Division One: LISA WHITE HARDWICK, Presiding Judge, JAMES M. SMART, JR. and ALOK AHUJA, Judges.
   Order

PER CURIAM.

Jason Tweedy appeals the denial of his Rule 29.15 motion, following an evidentiary hearing. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the denial of post-conviction relief.

AFFIRMED. Rule 84.16(b).


author: CYNTHIA L. MARTIN, Judge.

text:
    WEST CENTRAL CONCRETE, LLC, Appellant, v. Jim REEVES d/b/A Reeves & Sons Construction, Aaron McClure & Tricia McClure, Robert L. Cox, Trustee and Hawthorn Bank, Respondents.
    No. WD 71462.
    Missouri Court of Appeals, Western District.
    June 1, 2010.

      R. Scott Gardner, Sedalia, MO, for appellant.
    Jim Reeves, respondent pro se.
    J. Eric Mitchell, Clinton, MO for respondents McClures.
    Robert L. Cox, Clinton, MO, for respondents Hawthorn and Cox.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

West Central Concrete, LLC (“West Central”) appeals from a trial court judgment dismissing its mechanic’s lien enforcement action for lack of prosecution. West Central contends that the trial court abused its discretion in dismissing the action because the factual findings in the trial court’s judgment are contrary to the facts reflected on the trial court’s docket sheet. West Central also maintains that the trial court failed to include a finding in its judgment that the delay in serving one of the defendants, Jim Reeves d/b/a Reeves & Sons Construction (“Reeves”), was “unnecessary.” We affirm.

Facts and Procedural History

This is an appeal from a judgment of the circuit court of Henry County dismissing West Central’s mechanic’s lien enforcement action for lack of prosecution. The action arose out of an unpaid debt owed by Reeves to West Central for materials and labor furnished in the construction of concrete footings, walls, and floors for a residence owned by Aaron and Trieia McClure (the “McClures”). Reeves was the general contractor responsible for construction of the McClures’ residence.

On November 5, 2008, West Central filed its statement of mechanic’s lien against the McClures’ property with the Clerk of the Circuit Court of Henry County-

On November 17, 2008, West Central filed suit to enforce its mechanic’s lien. The suit named the McClures, Reeves, Hawthorn Bank (“Hawthorn”), which held a deed of trust on the McClures’ property, and Robert Cox (“Cox”), the trustee on the deed of trust, as defendants. Summons issued for all defendants two days later. An initial hearing was scheduled for December 22, 2008.

All defendants, except Reeves, were served, and filed answers to West Central’s Petition or otherwise entered an appearance by December 16, 2008. On December 22, 2008, the trial court rescheduled the hearing set for that date to February 9, 2009, because Reeves had not yet been served. A ‘non-est’ return on Reeves’s summons was filed on December 30, 2008, indicating no attempts at service had been made.

West Central obtained an alias summons for Reeves on January 9, 2009. However, service on Reeves was not obtained, and on February 9, 2009, the trial court again continued the hearing scheduled for that date to March 23, 2009.

On February 10, 2009, West Central filed a Request for Pluries Summons for Reeves. The summons was issued on February 17, 2009. On February 21, 2009, a special process server picked up copies of the pluries summons. However, service on Reeves was not secured.

On March 23, 2009, the rescheduled hearing date, West Central did not appear. The trial court rescheduled the hearing to May 11, 2009, but noted that the case was subject to being dismissed for lack of prosecution because Reeves had not been served. The trial court’s docket entry for March 23, 2009, indicates that West Central was directed to request another summons.

By May 11, 2009, the rescheduled hearing date, Reeves still had not been served, and West Central had not requested another summons. However, the trial court agreed to once again reschedule the hearing to July 13, 2009. The trial court’s docket sheet reflects that West Central was again directed to request another summons.

On May 21, 2009, Hawthorn and Cox filed a Motion to Dismiss West Central’s mechanic’s lien enforcement action for failure to diligently prosecute. On May 26, 2009, the McClures filed a similar Motion to Dismiss. Both Motions were set for hearing on June 8, 2009. That hearing was subsequently continued to July 13, 2009.

On June 29, 2009, West Central requested a summons and the appointment of a special process server. The summons was issued on the same day, and the special process server was provided copies of the summons to serve on Reeves. The record does not include a return of this service, but in West Central’s suggestions in opposition to the pending Motions to Dismiss, which West Central filed on August 5, 2009, West Central represented that attempts were made to serve Reeves at an address provided for Reeves in another County.

On July 10, 2009, three days before the July 13, 2009 rescheduled hearing date, West Central request an order permitting service of Reeves by publication in the Clinton Daily Democrat. On the same day, an Order for Service by Publication of Notice was issued. The trial court continued the hearing on the Motions to Dismiss which had also been scheduled for July 13, 2009, to permit the filing of suggestions in support and suggestions in opposition.

On August 20, 2009, the trial court issued its judgment of dismissal for lack of prosecution, stating that West Central had failed to join Reeves, a necessary party, and that West Central had failed to prosecute its action in a timely fashion. The trial court found that West Central’s attempts at service, even by publication, had not been diligent. On the same day, a return of service on the Affidavit of Publication was filed. This appeal follows.

Standard of Review

The trial court’s judgment dismissing West Central’s mechanic’s lien enforcement action for failure to diligently prosecute is subject to review for an abuse of discretion:

The general rule is that a dismissal for want of prosecution is within the sound discretion of the trial court. Reversal by an appellate court requires a finding that the trial court abused its discretion. Because the ruling is discretionary it is presumed correct and appellant bears the burden of showing an abuse of discretion. Judicial discretion is abused when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable men can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

State ex rel. Webster v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 804 (Mo. banc 1988) (internal citations omitted).

Analysis

In West Central’s sole point on appeal, it claims that the trial court abused its discretion by dismissing its mechanic’s lien for failure to diligently prosecute. West Central maintains that the findings included in the trial court’s judgment are inconsistent with the docket entries and that the trial court erred by failing to include a finding in its judgment that West Central’s delay in securing service on Reeves was “unnecessary” as required by section 429.170.

Section 429.190 mandates that all parties to a construction contract giving rise to a mechanic’s lien shall be made parties to an action to enforce the lien. Reeves was the general contractor responsible for construction of the McClures’ residence and was the person with whom West Central contracted. Reeves was thus a necessary party to West Central’s mechanic’s lien enforcement action. In the absence of Reeves’s proper joinder, the action could not proceed. Cent. Wholesale Distrib., a Div. of Topeka Lumber, Inc. v. Day, 672 S.W.2d 88, 96 (Mo.App. W.D.1984). West Central does not dispute this point.

Section 429.170 requires an action to enforce a mechanic’s lien “shall be commenced within six months after filing the lien, and prosecuted without unnecessary delay.” (Emphasis added.) “[A]n action is commenced by the filing of a petition and the issuance of a summons.” Hennis v. Tucker, 447 S.W.2d 580, 583 (Mo.App.1969). West Central filed its statement of mechanic’s lien on November 5, 2008, and filed its petition to enforce the mechanic’s lien on November 17, 2008. Summons issued to all defendants two days later. Thus, West Central commenced its enforcement action within six months of filing its mechanic’s lien as required by section 429.170.

Section 429.170 describes two obligations of a mechanic’s lien claimant, however. Not only must the enforcement action be technically commenced within six months of filing of the lien, the enforcement action must be “prosecuted without unnecessary delay.” When, as here, a necessary party to the proceedings, Reeves, had not been served, the enforcement action could not be further prosecuted. Thus, though the enforcement action was timely commenced, in a technical sense, a subsequent finding of timely commencement of a suit to enforce presumes that service on all necessary parties is thereafter diligently (and successfully) pursued. “[U]nless a plaintiff ... exercises due diligence in obtaining service of process the statute continues to run.” Hennis, 447 S.W.2d at 583. The purpose of the relatively short period of limitations to commence enforcement of mechanic’s liens is to achieve prompt determination of lien claims, which encumber private property. Id. at 584.

There is no dispute in this case that the six month “statute of limitations” within which West Central was obligated to commence its enforcement action (including diligent attempts to serve all necessary parties) expired on May 5, 2009. There is no dispute that Reeves, a necessary party, was not served by this date. Reeves was not served, in fact, until the Affidavit of Service by Publication was filed on August 20, 2009. This was nearly three months after the six month statute of limitations had expired and nine months after the enforcement action was commenced by the filing of West Central’s petition and the issuance of initial summons.

The trial court concluded that West Central failed to diligently prosecute its action and thus effectively failed to commence its action within the six month statute of limitations set forth in section 429.170. To reach this conclusion, the trial court was required to determine whether there was “ ‘such delay in the issuance of other process following the return of the original writ as to interrupt the continuity of the suit so that the running of the statute became a bar to the suit.’ ” Cont’l Elec. Co. v. Ebco, Inc., 375 S.W.2d 134, 137 (Mo.1964) (quoting Mayne v. Jacob Michel Real Estate Co., 237 Mo.App. 952, 180 S.W.2d 809, 810 (1944)). “Mere delay, however lengthy, is not sufficient grounds for dismissal. It is only unnecessary delay that is prohibited.” Vonder Haar Concrete Co. v. Edwards-Parker, Inc., 561 S.W.2d 134, 138 (Mo.App.1978) (emphasis added). However:

[There are no] general standards by which it may be determined when and under what circumstances one’s lack of diligence to proceed in the issuance of process may amount to a discontinuance of the action or destroy the effectiveness of the pending proceeding. Each situation must depend upon all circumstances in which the relevant facts appear.

Peerless Supply Co., 460 S.W.2d at 658.

Here, there was a period of inactivity in attempts to serve Reeves for approximately four months between the issuance of the pluries summons on February 17, 2009, and the issuance of a summons on June 29, 2009. In the intervening time frame, the six month statute of limitations expired. When the original summons for Reeves was returned ‘non-est,’ “it was the duty of [West Central] to make use of other means of service available.” Hennis, 447 S.W.2d at 584. West Central did make three attempts to secure service on Reeves between the filing of its petition and the issuance of the failed pluries summons on February 17, 2009. However, West Central did nothing to secure service on Reeves for four months thereafter and waited until July 10, 2009, to secure an order to permit service by publication — an option which had been available to West Central all along. Though West Central was on notice in March 2009 that its action was subject to dismissal for failure to prosecute, and though West Central knew by late May that the remaining defendants were actively seeking dismissal for lack of prosecution, and though West Central had to have known that its six month statute of limitations was set to expire on May 5, 2009, absent diligent efforts to prosecute its action, West Central remained inexplicably idle. When West Central did attempt service by publication-a relatively foolproof means of assuring service-it was on the eve of the oft rescheduled hearing and the date the Motions to Dismiss were set for argument.

West Central offers no explanation for its delays but suggests that the longest delay without activity was “only four months.” However, West Central ignores by this contention its statutory obligation to “prosecute -without unnecessary delay.” Section 429.170. West Central also ignores that the short time frame permitted for the commencement of mechanic’s lien enforcement actions is predicated on a desire to expedite the resolution of lien claims, as hens encumber marketable title to the distinct and obvious prejudice of the property owner. Based on this record, we do not believe the trial court’s decision to dismiss West Central’s mechanic’s lien enforcement action for failure to diligently prosecute was so arbitrary and unreasonable as to shock the sense of justice. Though West Central timely filed its action to enforce mechanic’s lien, it failed to prosecute the action without unnecessary delay. Because the delay involved the failure to secure service on a necessary party, the effect of West Central’s delay was to “interrupt the continuity of the suit so that the running of the statute became a bar to the suit.” Cont’l Elec. Co., 375 S.W.2d at 137.

West Central complains that findings in the judgment are inconsistent with the docket sheet and includes a comparative chart in its brief to so illustrate. Yet, West Central does not explain in any greater detail, other than by this general contention, how the judgment findings and docket sheet entries materially differ. Our review of the chart reveals no material differences.

West Central also argues that the trial court “did not make any findings of fact or state whether it considered any evidence about whether any delay was ‘unnecessary delay.’ ” West Central cites to Fuhler v. Gohman & Levine Construction Co., 346 Mo. 588, 142 S.W.2d 482, 486 (1940), implying that Fuhler stands for the proposition that a finding in the trial court’s judgment that delay was “unnecessary” is required. This is a mischaracteri-zation of Fuhler. Fuhler merely recognizes that dismissal of a mechanic’s lien enforcement action for unnecessary delay must be supported by the evidence. Id. West Central offers no authority to suggest that a trial court is required to make a specific finding in its judgment that the delay was “unnecessary.” We conclude no such finding is required. As long as the record supports a finding of “unnecessary delay” in prosecution, it is immaterial whether the judgment includes an express finding that delay was “unnecessary.”

West Central also argues that the trial court improperly resorted to its inherent power to dismiss a matter for lack of diligent prosecution instead of employing its statutory power to dismiss for “unnecessary delay.” Yet West Coast fails to articulate any meaningful distinction between the two “standards” in its brief and concedes at oral argument that there is no practical difference between the two standards. Though the trial court concluded that West Central “failed to diligently prosecute its action,” the trial court’s judgment expressly references section 429.170. We can safely assume, therefore, that the trial court was aware of section 429.170’s reference to “unnecessary delay.” There is no functional distinction between “prosecute without unnecessary delay” and “diligent prosecution.” We cannot accept, therefore, West Central’s contention that the trial court abused its discretion because its judgment articulated the standard it applied to dismiss West Central’s action by a synonymous phrase to that employed in section 429.170.

Conclusion

The judgment of the trial court is affirmed.

All concur.

      . We review the evidence in the light most favorable to the trial court’s judgment. Peerless Supply Co. v. Indus. Plumbing & Heating Co., 460 S.W.2d 651, 657 (Mo.1970).

      . The record on appeal contains no return of service for either the alias summons or the pluries summons. We are unable to discern whether, or how many times, service of either summons was attempted.

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

      . In Respondent’s Joint Brief they argue that the service by publication was effected in the wrong county. After reviewing the record, we find this argument is without merit. West Central filed its action in Henry County. Pursuant to Rule 54.12(c)(4), service by publication “shall be published ... in the county where the civil action is commenced.”

      . Though it has not so argued in this appeal, West Central argued in its Suggestions Opposing Dismissal of its Petition that it had delayed service by publication because such service would not have permitted it to secure an in personam judgment against Reeves. This is a hollow argument. A mechanic's lien enforcement action is designed to permit recovery against property. Though a subcontractor’s lien enforcement action is often joined with a breach of contract claim against the general contractor, it is self-evident that the subcontractor is in the predicament of being required to seek enforcement of its mechanic’s lien because the general contractor has not paid (and perhaps cannot pay) the subcontractor. Faced with dismissal of its lien enforcement action, and thus with the possible loss of the most likely means of recovering payment, it is implausible that West Central did not earlier pursue service of Reeves by publication simply because it was worried it would be unable to obtain a judgment permitting it to collect money from Reeves.

      . West Central argued in its Suggestions Opposing Dismissal of it Petition that it had been looking for Reeves, without success. West Central did not advance this argument in its brief. However, it did provide this explana-lion for the period of inactivity in attempting service during oral argument. At the same time, West Central conceded at oral argument that it learned of Reeves's location in late March or early April, 2009. Despite this knowledge, no effort was made to secure service until June 29, 2009, when an alias summons was requested. We note, in any event, that service by publication would not have required West Central to know of Reeves's location and is usually predicated on the fact that a defendant's location is unknown.

      . As written, Section 429.170 permits a trial court to treat the obligation to prosecute an action to enforce a mechanic’s lien without unnecessary delay as independent of the obligation to timely commence such a case. This permits a trial court to dismiss for failure to prosecute without unnecessary delay without concluding that the delay effectively resulted in the action not being timely commenced.

      . The final entry on West Central's chart does indicate that both the judgment of dismissal and return of service on Affidavit of Publication were filed on August 20, 2009. However, there is no indication that the notice of publication was filed before the judgment was filed. We therefore cannot conclude that the trial court's finding in its judgment that "plaintiff has still failed to join a necessary party” was clearly contrary to the evidence then before it. Moreover, even if the Affidavit of Service by Publication was filed before the entry of the trial court’s judgment, the mere fact that Reeves had finally been served did not prevent the trial court from concluding that West Central had failed to diligently prosecute its mechanic’s lien enforcement action.

      . We note that if such a finding was required, West Central would not have preserved the issue for our review, as it failed to file a Rule 78.07(c) motion to amend with the trial court.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Lawrence E. STEWART, Appellant.
    No. WD 70305.
    Missouri Court of Appeals, Western District.
    June 1, 2010.
    Rosalynn Koch, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq., and James B. Farnsworth, Esq., Jefferson City, MO, for respondent.

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

PER CURIAM:

Lawrence Stewart appeals his conviction, following a jury trial, of the class A felony of distribution of a controlled substance within 1,000 feet of public housing, § 195.218, RSMo, for which he was sentenced to twenty-five years’ imprisonment as a prior and persistent offender. Stewart argues that the trial court committed plain error by permitting the admission of evidence of sales of controlled substances beyond the specific incident with which he was charged, and that the evidence was insufficient to prove that he knew his conduct occurred on public housing property. We affirm. Because a published opinion would have no precedential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Leslie Ann HEGG-GENOVA, Appellant.
    No. WD 70992.
    Missouri Court of Appeals, Western District.
    June 1, 2010.
    Melissa G. Howard, Independence, MO, for respondent.
    George E. Kapke, Lee’s Summit, MO, for appellant.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Leslie Ann Hegg-Genova was convicted after a bench trial of driving while intoxicated, Section 577.010.1 (RSMo 2000), and careless and imprudent driving, Section 304.012.1 (RSMo 2000). On appeal, Hegg-Genova contends the circuit court erred in entering judgment against her because the State failed to prove beyond a reasonable doubt that she was not involuntarily intoxicated at the time of the offense. For reasons explained in a memorandum provided to the parties, we find no error and affirm the judgment of convictions. Rule 30.25(b).


text:
    In the Matter of Foreclosure of Liens for Delinquent Land Taxes by Action in Rem: Manager of the Division of Revenue of Jackson County, Missouri, Diana BANKS, Respondents, v. Gregory M. MURASKI, Appellant.
    No. WD 70520.
    Missouri Court of Appeals, Western District.
    June 1, 2010.
    Richard D. Dvorak, Overland Park, KS, for Appellant.
    Craig C. Reaves, Kansas City, MO, for Respondent, Diana Banks.

      Jacqueline A. Sommer, Kansas City, MO, for Respondent, Division of Revenue.
    Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Mr. Gregory Muraski appeals the circuit court’s judgment setting aside the sale of property to him at a public auction.

For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).