author: CYNTHIA L. MARTIN, Judge.

text:
    Galin E. FRYE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70504.
    Missouri Court of Appeals, Western District.
    March 23, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    Application for Transfer Denied June 29, 2010.

      Emmett D. Queener, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before Division Four: THOMAS H. NEWTON, Chief Judge, JOSEPH M. ELLIS, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Galin Frye appeals the motion court’s denial of his Rule 24.035 motion for post-conviction relief following an evidentiary hearing. Frye contends that the motion court clearly erred in denying his motion because he received ineffective assistance of counsel as a result of trial counsel’s failure to inform him of a plea offer made by the State. The plea offer would have permitted Frye to plead to the amended charge of misdemeanor driving while revoked instead of going to trial on the charge of felony driving while revoked. Frye claims he would have taken the plea offer amending his charge to a misdemean- or had he known about the offer. Frye thus contends that his subsequent entry of an “open” guilty plea to the felony charge of driving while revoked was unknowing, involuntary, and unintelligent. We reverse and remand.

Factual and Procedural History

On August 14, 2007, the State charged Galin Frye (“Frye”) with one count of the class D felony driving while his driving privilege was revoked in violation of Section 302.321. Frye had previously been convicted of three misdemeanor driving while revoked charges on May 21, 2004, April 20, 2006, and February 10, 2006.

Frye’s preliminary hearing was scheduled for November 9, 2007. Frye contacted counsel the day before to inform him that he could not attend the hearing. Trial counsel appeared on Frye’s behalf and received a continuance of the preliminary hearing to January 4, 2008. Frye had no scheduled court appearances between November 9, 2007, and January 4, 2008.

On November 15, 2007, the State sent Frye’s trial counsel a written plea offer (“Offer”). The Offer was file stamped as received in trial counsel’s office on November 19, 2007. The Offer stated:

My recommendation is a[sie] follows: 8 and defer, on the felony with 10 days “shock” in the Boone County Jail; OR 90 days to serve on an amended misdemeanor in the Boone County Jail.
I am going to subpoena witnesses for the preliminary hearing on January 4, 2008. I will need to know if Mr. Frye will be waiving [sic] to preserve the offer by noon on December 28, 2007.

Trial counsel’s highlighting of, and other pen marks on, the written Offer, coupled with trial counsel’s testimony at the post-conviction hearing, confirm that trial counsel actually received and read the Offer approximately one week after it was mailed.

Frye testified at the post-conviction hearing that he had no knowledge of the Offer until after he was convicted, sentenced, and incarcerated. At the time of the Offer, Frye lived in St. Louis, Missouri. Trial counsel had Frye’s mailing address. Frye testified at the post-conviction hearing that during the Offer window he did not see or speak with trial counsel and that his mailing address did not change.

Trial counsel testified at the post-conviction hearing that trial counsel could not recall whether he had communicated the Offer to Frye. Trial counsel testified that there was no correspondence in his file to indicate any effort was made by his office to mail the Offer to Frye. Trial counsel could not recall speaking with, seeing, or ever attempting to contact Frye during the Offer window of November 15, 2007, to December 28, 2007.

On January 4, 2008, Frye appeared for his continued preliminary hearing. Trial counsel, who was unable to attend, placed a note in Frye’s file for the docket attorney covering the hearing. The note stated “ — Probably should — Talk to him, from St. Louis, rec is tagged — Also has new misd, (go ahead & enter) WAIVE.” Trial counsel interpreted his note during the post-eonviction hearing. He testified that his note indicated that the Offer was included in the file and should be discussed with Frye. By this time, however, the Offer had expired. Frye testified that the docket attorney did not advise him of the expired Offer at the time of the preliminary hearing. Trial counsel interpreted his note’s reference to “new misd” as referring to the fact that Frye had received another charge. Frye testified during his post-conviction hearing that he received another misdemeanor driving while revoked charge on December 30, 2007. This was two days after the Offer expired. It is unclear how trial counsel knew of Frye’s new charge, though we surmise Frye must have had a discussion of some sort with his counsel between December 30, 2007, the date of the new charge, and January 4, 2008, the date of the preliminary hearing for which trial counsel had prepared the hand written instructions for the docket attorney.

On March 3, 2008, Frye entered an “open” guilty plea to the class D felony of driving while revoked. The new charge Frye received on December 30, 2007, was not addressed during the guilty plea hearing. The State recommended a three year sentence, deferred, with ten days shock time. This was identical to the first of the two options that had been described in the Offer. The sentencing court did not accept the State’s recommendation. Frye was sentenced on May 5, 2008 to three years imprisonment in the Missouri Department of Corrections.

On June 9, 2008, Frye filed a pro se motion seeking post-conviction relief pursuant to Rule 25.035 (“Motion”). Frye’s Motion alleged that trial counsel was ineffective for failing to communicate the Offer. Following an evidentiary hearing, the motion court denied Frye’s Motion. This appeal follows.

Standard of Review

Appellate review of the disposition of a motion filed under Rule 24.035 is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k); Krider v. State, 44 S.W.3d 850, 856 (Mo.App. W.D. 2001). The trial court’s “findings and conclusions are clearly erroneous only if, after reviewing the entire record,” we are left with a “definite and firm impression that a mistake has been made.” Id.

Analysis

In Frye’s sole point on appeal, he contends that the motion court clearly erred in denying his Motion following an eviden-tiary hearing because his guilty plea was unknowing, involuntary, and unintelligent. Frye contends that trial counsel failed to inform him of the Offer. Frye contends that had he known of the Offer he would have accepted the prong of the Offer which would have permitted him to plead to an amended misdemeanor charge of driving while revoked, and that he would not have entered an “open” guilty plea to the class D felony charge of driving while revoked.

A guilty plea must be a “voluntary expression of the defendant’s choice, and a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.” State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997). Once a guilty plea is entered, all claims that counsel was ineffective are waived, “except to the extent that the conduct affected the voluntariness and knowledge with which the plea was made.” Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc 2005).

The plea process in a criminal adjudication warrants the same constitutional guarantee of effective assistance of counsel as trial proceedings. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). To prevail on an ineffective assistance of counsel claim following a guilty plea, Frye must show by a preponderance of the evidence that: (1) trial counsel’s performance was deficient because he failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances; and (2) the deficient performance prejudiced Frye. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). If either the performance prong or the prejudice prong is not met, then we need not consider the other, and Frye’s claim of ineffective assistance of counsel must fail. Strickland, 466 U.S. at 687,104 S.Ct. 2052.

Performance Prong

To satisfy the performance prong, Frye must show by a preponderance of the evidence that trial counsel’s failure to inform him of the Offer fell below an objective standard of reasonableness. Reasonableness is looked at in light of all of the circumstances, and the prevailing professional norms at the time of the alleged error. Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052. Frye must overcome the presumption that any challenged action was sound trial strategy, and that counsel rendered adequate assistance of counsel, making all significant decisions in the exercise of professional judgment. Id. at 689-90, 104 S.Ct. 2052.

“Failure of defense counsel to communicate a plea offer ordinarily constitutes deficient performance” of counsel. Members v. State, 204 S.W.3d 210, 212 (Mo.App. W.D.2006) (citing State v. Colbert, 949 S.W.2d 932, 946 (Mo.App. W.D.1997)). In Members, defendant contended his guilty plea was involuntary and that he received ineffective assistance of counsel because counsel had not communicated a plea offer. Id. at 211. The motion court did not permit the defendant an evidentiary hearing. Id. We concluded that the failure to communicate a plea offer satisfies the performance prong of Strickland. Id. at 213. Because the motion court had not permitted the defendant an evidentiary hearing to determine whether, in fact, the offer had not been communicated, we reversed and remanded the case for an evidentiary hearing. Id. In Colbert, defendant claimed he was not advised of the State’s plea offer for twenty-five years imprisonment on Count I and five years imprisonment on Counts II and III, for a total of thirty years imprisonment. 949 S.W.2d at 945. Defendant claimed that he was prejudiced as a result, since unaware of the offer, he elected to go to trial where he was convicted and received life imprisonment on one count and multiple year sentences on other counts to run consecutive with the life sentence. Id. at 938, 946. The court found defendant had sufficiently alleged ineffective assistance of counsel based on counsel’s failure to communicate an offered plea and remanded the case for an eviden-tiary hearing. Id. at 946.

In Cottle v. Florida, 733 So.2d 963 (Fla.1999), the court held that “[t]he caselaw uniformly holds that counsel is deficient when he or she fails to relate a plea offer to a client.” Id. at 966 (citation omitted). Similarly, in Turner v. Texas, 49 S.W.3d 461 (Tex.App.2001), the court held that defense counsel’s failure to communicate a deadline attached to a plea offer constituted ineffective assistance of counsel. The court held that it was not reasonable trial strategy for trial counsel to withhold the deadline from the defendant merely because trial counsel believed the defendant would be forced to make a faster decision. Id. at 470. The court stated “the only reasonable strategy ... would have been to timely notify Appellant of the imminently approaching deadline.” Id.

Here, Frye contends the Offer was not communicated to him at all. We can conceive of no reasonable trial strategy that would justify trial counsel’s failure to communicate the Offer to Frye. We conclude, consistent with Members, that if Frye was not advised of the Offer, he has established the Strickland performance prong. We turn our attention, therefore, to whether Frye established that he was not told of the Offer.

In its Findings of Fact, Conclusions of Law, and Judgment, the motion court acknowledges Frye’s testimony that he was not advised of the Offer until after he was incarcerated. The motion court did not indicate whether it found Frye’s testimony to be believable. The motion court acknowledged trial counsel’s testimony that he could not recall whether he had informed Frye about the Offer. The trial court found trial counsel’s testimony to be credible. The effect was a finding that trial counsel credibly reported no recollection of informing Frye of the Offer. The motion court did not make an express finding with respect to whether Frye knew of the Offer. However, the motion court found that “even assuming that counsel failed to tell Movant of the offer, counsel cannot be faulted for failing to inform Movant of an offer when Movant fails to stay in touch with counsel.”

The motion court was required to “issue findings of fact and conclusions of law on all issues presented.” Rule 24.035(j) (emphasis added). While “ ‘[tjhere is no precise formula to which findings of fact and conclusions of law must conform,’ they must address all of the issues raised and be sufficiently specific to allow for meaningful appellate review.” Grimes v. State, 260 S.W.3d 374, 375 (Mo.App. W.D.2008) (quoting Ivory v. State, 211 S.W.3d 185, 189 (Mo.App. W.D.2007)). We are typically required to remand a case back to the court for requisite findings of fact that have not been made. Id. We do not believe the absence of an express finding of fact as to Frye’s knowledge of the Offer requires remand, however. The motion court found trial counsel’s testimony credible. Trial counsel’s testimony included not only his concession of no memory one way or the other of having informed Frye of the Offer but also a general discussion of difficulties trial counsel had communicating with Frye. By finding that “even if’ Frye did not know of the Offer it was Frye’s fault, the motion court can be reasonably assumed to have made the implicit finding that Frye did not know of the Offer and that he was to blame for his lack of knowledge. We believe, therefore, that the motion court’s findings of fact are “sufficiently specific to allow for meaningful appellate review.” Id. We agree with the trial court’s implicit finding that Frye was not informed of the Offer. We do not agree, however, that the record supported a finding that Frye was to blame for trial counsel’s failure to communicate the Offer.

At the post-conviction hearing, trial counsel testified:

Counsel, we’ve talked about this on the phone. I have wracked my brain to try to remember what happened in Mr. Frye’s case. I can tell you that I do remember that communication — I’m not suggesting through faults of his own, but he lived in St. Louis, and communication — I believe I had different phone numbers from time to time. I’m not sure if I communicated this to him or not, simply because I don’t remember him being in court with me as often as most of my other clients; that he was from St. Louis, and that I think that he missed court a few times. And I don’t believe I saw him again until after this offer would have been revoked by operation of the language of it, of the letter.

(Emphasis added.) Although trial counsel testified that Frye “missed court a few times,” the only missed court appearances reflected in the record were between January 4, 2008, and March 3, 2008, after the Offer expired. During the Offer window, Frye never failed to appear in court because there were no scheduled court appearances during that time. Though trial counsel stated that Frye had different phone numbers from time to time, the only specific evidence relating to how this impacted trial counsel’s communication with Frye was trial counsel’s testimony that: “Oh, I called him on the 28th and noted in my file that his phone was not in service,” referring to January 28, 2008. Trial counsel also testified that on February 4, 2008, Frye gave him an updated number, suggesting Frye initiated contact with him to provide this information. Trial counsel never testified that he made any unsuccessful effort to contact Frye by phone during the Offer window. Instead, trial counsel conceded: “I’m not sure if I communicated this [the Offer] to him or not.”

The record also indicates that there was no communication by mail between trial counsel and Frye during the Offer window. Frye’s client file is void of correspondence to Frye communicating the Offer. Trial counsel testified that the absence of a letter in Frye’s file reflecting transmittal of the Offer would tend to indicate that no effort was made to communicate the Offer to Frye in writing.

Pursuant to the Rules of Professional Conduct that govern the Missouri Bar, Frye’s trial counsel had an absolute duty to keep Frye informed of plea communications. Rule 4-1.4 states: “(a) A lawyer shall: (1) keep the client reasonably informed about the status of the matter; [and] ... (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding representation.” See also In re Crews, 159 S.W.3d 355, 359 (Mo. banc 2005). Pursuant to Rule 4-1.4 comments one and two, counsel is required to keep the client informed of significant developments in the case, and “a lawyer who receives from opposing counsel ... a proffered plea bargain in a criminal case must promptly inform the client of its substance.” (Emphasis added).

The motion court correctly noted that “[t]he reasonableness of counsel’s actions [to determine if the performance prong was met] may be determined or substantially influenced by the defendant’s own statement or actions.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. However, counsel’s failure to act is only justifiable in circumstances where, because of the defendant’s own conduct, counsel was unable to properly carry out his responsibilities. State v. Johnson, 901 S.W.2d 60, 63 (Mo. banc 1995) (finding that trial counsel was not ineffective for failing to call a witness because the defendant failed to inform him of the witness’s existence until after trial). It is only when a defendant’s behavior leads to a fundamental lack of information on the part of counsel that counsel is excused from the reasonable standard of performance. Id.) see also Cherco v. State, 309 S.W.3d 819, 825-26 (Mo.App. W.D. 2010) (finding the performance prong of Strickland was not met because defendant failed to stay in touch with counsel, despite repeated attempts by counsel to contact him). In this case, trial counsel could not be excused from his absolute duty to communicate the Offer to Frye unless Frye’s behavior caused trial counsel to be unable to do so. The record is void of any evidence of any effort by trial counsel to communicate the Offer to Frye during the Offer window, let alone any evidence that Frye’s conduct interfered with trial counsel’s ability to do so.

Reviewing the entire record, therefore, we are left with a definite and firm impression that a mistake has been made. The trial court clearly erred in blaming Frye for “failing to stay in touch” with counsel during the six week Offer window, a finding which effectively shifted to Frye the duty to “stay in touch,” and which divested trial counsel of his absolute duty to communicate the Offer to his client. As there was no evidence that any effort of any kind was made by trial counsel to timely inform Frye of the Offer, we conclude that Frye established by a preponderance of the evidence that he was not informed of the Offer while the Offer was pending or before his guilty plea. As a result, trial counsel’s performance was deficient. Members, 204 S.W.3d at 213. The Strickland performance prong has been met. We now determine whether trial counsel’s failure to communicate the Offer prejudiced Frye.

Prejudice Prong

In Strickland, the Supreme Court articulated the standard for prejudice, stating that a defendant must show a reasonable probability that, but for counsel’s alleged deficiencies, the result of the proceeding would have been different. Strickland, 466 U.S. at 694,104 S.Ct. 2052. The Strickland prejudice prong has since been interpreted by the Court in Hill, in the context of guilty pleas, to mean that in order to show prejudice, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366. The State contends that because Frye did not contend that “but for” trial counsel’s failure he would have insisted on going to trial, Frye cannot establish prejudice as a matter of law. We disagree.

In Hill, the Supreme Court extended the Strickland analysis to guilty plea proceedings, noting that “our justifications for imposing the ‘prejudice’ requirement ... are also relevant in the context of guilty pleas.” Hill, 474 U.S. at 57, 106 S.Ct. 366 (citing Strickland, 466 U.S. at 693, 104 S.Ct. 2052). These justifications were:

The government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence. Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.

Id. (citing Strickland, 466 U.S. at 693, 104 S.Ct. 2052) (emphasis added). Hill thus acknowledges that the Strickland inquiry for “prejudice” necessarily depends on the specific evidence and circumstances surrounding the claimed error. Id. It follows, therefore, that the determinative factors for evaluating whether counsel’s ineffectiveness is prejudicial must be based on the specific facts and circumstances of the case. Reliance on Hill’s “template” that a defendant must contend that “but for” counsel’s ineffective assistance the defendant would have insisted on going to trial as determinative of whether a defendant can establish prejudice completely ignores Strickland’s looser emphasis on whether a defendant can establish “an adverse effect on the defense.” Strickland, 466 U.S. at 693, 104 S.Ct. 2052. We conclude that though prejudice may, and often will, be established by a defendant’s showing that “but for” counsel’s ineffective assistance, the defendant would not have pled guilty and would have insisted on going to trial, this is not the only way prejudice can be established. According to Strickland, the test of prejudice is whether “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694,104 S.Ct. 2052. See Colbert, 949 S.W.2d at 940 (“To demonstrate prejudice, the movant must show a reasonable probability that, but for his attorney’s unprofessional errors, the result of the proceeding would have been different”) (citing State v. Harris, 870 S.W.2d 798, 814 (Mo. banc 1994), cert. denied, 513 U.S. 953, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994)) (emphasis added).

In a case similar to the one before us, our Supreme Court has demonstrated its agreement with this approach to establishing prejudice. In Dobbins v. State, 187 S.W.3d 865 (Mo. banc 2006), Dobbins, relying on the advice of counsel, rejected a ten year imprisonment plea with the State, and instead entered an “open” guilty plea. Id. at 866. Dobbins was subsequently sentenced to eighteen years for possession of marijuana with the intent to distribute. Id. Dobbins filed a Rule 24.035 motion alleging counsel affirmatively mislead him about his eligibility for early release. Id. The Supreme Court found that Dobbins received ineffective assistance of counsel based on counsel’s affirmative misrepresentation, and in discussing whether prejudice had been established, noted:

Counsel’s ineffectiveness must be joined with prejudice to afford Dobbins relief. In this case, Dobbins was prejudiced because he rejected an offer to plead to a charge resulting in a 10-year sentence. If he had known he was not able to challenge the sentence, he would not have entered an open plea, but would have accepted the offer, which matched the lowest sentence he could have received under the open plea agreement. Moreover, the facts relating to Dobbins’ understanding of the pleas and his agreement that no one had promised leniency for the plea are irrelevant. It was not the sentence to be imposed that concerned Dobbins-it was his eligibility for sentence reduction as to any sentence that was imposed. His attorney’s affirmative misrepresentation as to his ability to challenge the sentence prejudiced Dobbins by causing him to plead guilty when he otherwise would not have done so.

Id. at 867 (emphasis added). Reading the above passage as a whole, it is apparent the Supreme Court did not employ the narrow Hill “but for” test to find prejudice in Dobbins. As in Dobbins, Frye did not accept a plea offer that he says he would have accepted but for counsel’s ineffective assistance. As in Dobbins, Frye does not contend in his post-conviction motion that but for counsel’s ineffective assistance, he would not have pled guilty and would have insisted on going to trial.

Here, the motion court denied Frye’s post-conviction motion because “[ejven assuming that counsel can be faulted for failing to tell Movant about this plea offer, Movant would not be entitled to a remand because claims under Rule 24.035 must include a claim that Movant would have gone to trial but for his counsel’s errors.” The motion court did not discuss Dobbins. Instead, the motion court cited Beach v. State, 220 S.W.3d 360 (Mo.App. S.D.2007), which addresses Dobbins. The court in Beach read Dobbin’s, statement that defendant was caused “to plead guilty when he otherwise would not have done so” to mean Dobbins would not have plead guilty and would have insisted on going to trial. Beach, 220 S.W.3d at 367. The Southern District stated, “this sentence clearly states that, but for ineffectiveness of plea counsel, Dobbins would not have pleaded guilty. By implication, the only alternative to not pleading guilty is to go to trial. Thus, the Court applied the Hill standard without citation.” Id. at 368. We decline to so interpret Dobbins. The Southern District’s reading of a single sentence in Dobbins out of context ignores the balance of the Supreme Court’s discussion which included the statement that had the defendant “known he was not able to challenge the sentence, he would not have entered an open plea, but would have accepted the offer.” Dobbins, 187 S.W.3d at 867 (emphasis added). Beach’s interpretation of Dobbins and its application of Hill would leave a defendant with no recourse even if the defendant has clearly established that “but for” his counsel’s ineffective assistance the outcome of his proceeding would have been different. Our court does not construe Hill to bar other means of establishing prejudice when insisting on going to trial cannot possibly remediate ineffective assistance that has affected the outcome of the proceeding. Cherco, 309 S.W.3d at 829-30 (finding ineffective assistance of counsel during the sentencing phase may warrant remand for resentenc-ing without an allegation by the defendant that he would not have pled guilty and would have insisted on going to trial); see also Members, 204 S.W.3d at 213 (finding that a defendant has been prejudiced if the defendant proves that counsel failed to communicate a plea offer that the defendant would have accepted).

Other jurisdictions have found prejudice when counsel fails to inform a defendant of a plea offer, notwithstanding defendant’s failure to contend he would have insisted on going to trial. In Turner, the court found “the record shows that Appellant was prejudiced by defense counsel’s ineffectiveness and that, but for counsel’s deficient performance, there is a reasonable probability that the outcome of the proceedings would have been different.” 49 S.W.3d at 470. The court went on to conclude that when a defendant was not informed of a deadline placed on a plea offer, and when “the record shows that Appellant would have timely accepted the offer had the deadline been properly conveyed to him, Appellant has satisfied the burden of showing prejudice.” Id. In Cot-tle, defendant claimed he received ineffective assistance of counsel because his counsel failed to convey the State’s plea offer. 733 So.2d at 964-65. The court held that “an inherent prejudice results from a defendant’s inability, due to counsel’s neglect, to make an informed decision whether to plea bargain, which exists independently of the objective viability of the actual offer.” Id. at 969 (citations omitted).

In light of the foregoing, we find the motion court’s conclusion that Frye was not prejudiced by trial counsel’s failure to communicate the Offer merely because Frye did not contend that he would have insisted on going to trial to be a clearly erroneous finding of fact based on a clearly erroneous declaration of the law.

The motion court also concluded that remand of Frye’s case would not be proper because now that the Offer has expired, the State cannot be compelled to renew the Offer. Moreover, according to the motion court, the State would have the power to withdraw the Offer, even if renewed, at any time before sentencing.

“While a defendant has no constitutional right to a plea bargain, Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), during negotiations he is entitled to presuppose fairness in the agreement.” State v. Price, 787 S.W.2d 296, 299 (Mo.App. W.D.1990) (citing Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). This fairness guarantee was restricted in Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). A “plea agreement standing alone is without constitutional significance.” Id. at 507. Thus, “[ujnless a plea agreement impaired the voluntariness or intelligence of a guilty plea, the defendant has no constitutional right to have the plea specifically enforced.” Price, 787 S.W.2d at 299 (citing Mabry, 467 U.S. at 510, 104 S.Ct. 2543). The Court in Mabry, in discussing a plea offer, “found that the question of whether a prosecutor was negligent or otherwise culpable in first making and then withdrawing an offer was not relevant to a due process argument.” Price, 787 S.W.2d at 299-300 (citing Mabry, 467 U.S. at 511, 104 S.Ct. 2543). Thus, it does in fact appear that a plea offer can be withdrawn at any time before it is accepted by the court, and a plea offer once accepted by the defendant can be withdrawn without recourse, unless, as noted in Mabry, the plea agreement impaired the voluntariness of the guilty plea.

However, we are not dealing with a case of claimed prosecutorial misconduct. Price, Mabry, and the other cases cited by the motion court in its Judgment relating to the enforceability of a plea offer or agreement all arose in the context of a defendant’s claim of prosecutorial misconduct in withdrawing or failing to honor a plea. Here, the claimed constitutional violation relates to Frye’s entitlement to effective assistance of counsel. The motion court suggests that unless there is a suitable means of remediating the demonstrated ineffective assistance of counsel, there can be no prejudice. In other words, the motion court suggests that because we cannot compel the State to renew the Offer, Frye is not prejudiced because we cannot, by remanding this case, restore Frye to the position he would have been in but for the ineffective assistance.

We do not believe the determination of prejudice can be bootstrapped in this fashion. The State had exclusive control over the charging of Frye’s offense. Thus, had Frye been advised of the Offer, and had he accepted the Offer, the trial court would have been bound to accept the guilty plea for the misdemeanor charge. The maximum jail sentence that the trial judge could have imposed for the misdemeanor plea was one year imprisonment. Section 558.011. The maximum sentence for the class D felony to which Frye entered an “open” guilty plea was four years. Id. Frye received three years. Because of trial counsel’s failure to inform Frye of the Offer, Frye pled guilty to a felony instead of a misdemeanor and was subject to a maximum sentence of four years instead of one year. We conclude that notwithstanding the practical difficulties associated with Frye’s recourse, Frye has nonetheless established prejudice pursuant to Strickland. We are left with a definite and firm impression that a mistake was made. We find that Frye did sufficiently prove, by a preponderance of the evidence, that he was prejudiced through trial counsel’s failure to convey the State’s Offer.

We are left then with discerning the appropriate recourse for Frye’s established Rule 24.035 violation. Rule 24.035(j) provides that if a basis for Rule 24.035 relief is determined to exist, “the court shall vacate and set aside the judgment and shall discharge the movant or resentence the movant or order a new trial or correct the judgment and sentence as appropriate.” (Emphasis added.) Though in this case, the “appropriate ” remediation might be to afford Frye the opportunity to plead guilty to the amended charge of misdemeanor driving while revoked, we appreciate that we are not empowered to order the State to reduce the charge against Frye. A remand, therefore, may leave Frye with but two options— proceed to trial or plead guilty to and be resentenced for the same felony driving while revoked charge to which Frye originally entered his “open” guilty plea. Though this is may not seem a satisfactory remedy for Frye, our alternative is to ignore the merits of Frye’s claim, which we are unwilling to do.

Our Supreme Court faced the same constraint we face today in Dobbins. Upon finding prejudice arising out of a similar scenario where a defendant claimed ineffective assistance of counsel prejudiced him from accepting an earlier plea offer, the Court reversed the judgment and remanded the case. Dobbins, 187 S.W.3d at 867. We will do the same, deferring to Frye whether he desires to insist on a trial or to plead guilty to the charged offense or to such other amended charge as the State may deem it appropriate to offer. In either case, we will be affording Frye that to which he is entitled — the effective assistance of counsel. We are cognizant that the State did absolutely nothing wrong in this case and is not responsible for Frye’s trial counsel’s failure to communicate the Offer.

Conclusion

We reverse the judgment entered on the guilty plea and deem the guilty plea withdrawn. We remand this case for further proceedings.

All Concur.

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

      . Frye testified at the post-conviction hearing that his post-conviction counsel sent him a copy of the Offer while he was incarcerated.

      . The record does not reflect where the new charge was received.

      . For example, the State may well have withdrawn the Offer, even if accepted by Frye, if it became aware prior to sentencing of Fiye’s new charge on December 30, 2007.

      . Of course, the trial court would have been free to sentence Frye along the continuum of the range of punishment applicable to the misdemeanor, just as it was free to sentence Frye along the continuum of the range of punishment for the felony to which Frye entered his "open” plea. Had the Offer only addressed a non-binding sentencing recommendation in exchange for a plea of guilty on the original felony charge of driving while revoked, Frye would be hard pressed to establish prejudice, notwithstanding counsel’s failure to communicate the Offer, as the State's Offer would not have been binding, in any manner, on the trial court.

      . We are aware that Frye’s new misdemeanor charge apparently influenced trial counsel’s decision not to request an extension of the Offer from the State. That new charge was obtained by Frye after the Offer window expired. Trial counsel's belief about whether he could have persuaded the State to renew the Offer is irrelevant as Frye does not contend ineffective assistance of counsel on this basis. It is sufficient for Frye's showing of prejudice that the Offer window would have permitted Frye to accept the Offer and to have submitted to a guilty plea hearing on the amended charge in advance of receiving yet another charge for driving while revoked.

      . In Turner, the Texas Court of Appeals reme-diated a similar set of circumstances by reversing the trial court's judgment and remanded the case "with orders to withdraw the appellant’s plea, require the State to reinstate the plea offer as it existed prior to the Sixth Amendment violation, and allow the appellant to replead to the indictment.” 49 S.W.3d at 471. We do not share the Texas court’s belief that we are empowered to mandate the State to offer pleas or to amend charges, notwithstanding our finding that Frye’s Sixth Amendment rights have been violated.


source: Caselaw Access Project

author: JOSEPH M. ELLIS, Judge.

license: Public Domain

text:
    STATE of Missouri, ex rel., AG PROCESSING, INC., A Cooperative and Sedalia Industrial Energy Users Association, Intervenor; State of Missouri, ex rel., Public Counsel, Appellant, v. PUBLIC SERVICE COMMISSION for the STATE of Missouri, Respondent, KCP & L Greater Missouri Operations Co., Respondent.
    No. WD 70799.
    Missouri Court of Appeals, Western District.
    March 23, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    Application for Transfer Denied June 29, 2010.

      Lewis R. Mills, Jr., St. Louis, for Appellant.
    Jamie N. Ott, for Respondent PSC.
    Karl Zobrist, Kansas City, for Respondent KCP & L.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge.
   JOSEPH M. ELLIS, Judge.

The Office of Public Counsel, AG Processing, Inc., and the Sedalia Industrial Energy Users’ Association appeal the circuit court’s judgment affirming a decision of the Public Service Commission (“the Commission”) approving, certain tariffs filed by KCP & L Greater Missouri Operations Company (formerly known as Aquila, Inc.). For the following reasons, the cause is remanded to the circuit court with directions to remand to the Commission for further proceedings consistent with this opinion.

On June 3, 2006, Aquila filed proposed rate schedules to implement a general rate increase along with rate schedules containing a fuel adjustment clause. “A fuel adjustment clause is a clause, filed as part of an electric utility’s tariff, which allows it automatically to increase or decrease the charge for power per kilowatt-hour to consumers by the amount of an increase or decrease in the utility’s fuel costs....” State ex rel Util. Consumers Council of Mo., Inc. v. Pub. Serv. Comm’n, 585 S.W.2d 41, 44 (Mo. banc 1979). The fuel adjustment clause proposed by Aquila would allow Aquila to later recoup from its customers, through a surcharge, any additional costs incurred by Aquila due to increased fuel and/or purchased power costs over a specified period. The fuel adjustment clause was opposed by the Office of Public Counsel (“the OPC”) and assorted customers of Aquila. After an evidentiary hearing, on May 17, 2007, the Commission issued its Report and Order rejecting these rate and fuel adjustment tariffs and ordering Aquila to submit proposed rate and fuel adjustment tariff sheets that conformed to the requirements set forth in the Report and Order.

After Aquila filed new tariff sheets, on May 17, 2007, the Commission issued an order approving some of the general rate schedules but rejecting the fuel adjustment tariff sheets. The Commission did, however, conclude that “it would be reasonable and in the public interest to permit Aquila to use an adjustment mechanism” and that “Aquila should be authorized to implement a fuel adjustment clause in this case.” The Commission ordered Aquila to file proposed electric service tariff sheets consistent with its opinion, which set out certain requirements for that fuel adjustment clause.

Aquila filed new tariff sheets on May 25, 2007. On June 14, the Commission entered its Order Rejecting Tariff, Granting Clarification, Directing Filing and Correcting Order Nunc Pro Tunc. The Commission again expressly rejected the fuel adjustment tariff sheets filed by Aquila. Aquila submitted proposed electric service tariff sheets to the Commission once more on June 18, 2007. Those tariff sheets called for adjustments based upon six month periods in which the difference between the base fuel cost and the actual fuel cost was calculated. The tariff sheets called for these periods to run from June to November and from December through May of each year until 2011. On June 29, 2007, the Presiding Officer assigned by the Commission entered an order approving the tariff sheets submitted by Aquila stating:

Based upon its review of the Revised Tariff Sheets and Staffs June 25th Recommendation, and for good cause shown pursuant to Section 393.140(11), RSMo 2000, the Commission concludes that the Revised Tariff Sheets are consistent with the Report and Order, as clarified by the First Tariff Order and Second Tariff Order, Section 386.266 RSMo, and Commission Rule 4 CSR 240-20.090, and should be approved to become effective on and after July 5, 2007.

(Emphasis added.)

On December 28, 2007, Aquila filed tariff sheets seeking to adjust its rates to recover the difference between base fuel costs and actual fuel costs that had been incurred between June 1 and November 31, 2007. The OPC filed a motion to reject those tariffs because Aquila was attempting to adjust the rates based in part on fuel cost increases occurring prior to the July 5, 2007 effective date of the fuel adjustment clause in violation of Missouri’s prohibition on retroactive ratemaking. AG Processing Inc. and Sedalia Industrial Energy Users’ Association (hereafter “the Consumers”) also challenged the new tariffs. On February 14, 2008, the Commission issued its Order denying the OPC’s motion and accepting Aquila’s tariffs. The Commission concluded that under its regulations the effective date of the specific fuel adjustment clause tariff sheets was not relevant and that its general approval of the use of a fuel adjustment clause on May 17, 2007, provided the relevant date for determining when recoupment for fuel costs could begin. After the Commission denied the OPC’s motion for rehearing, the OPC sought review in the Circuit Court of Cole County. On February 6, 2009, the circuit court entered its judgment affirming the decision of the Public Service Commission. The OPC brings one point on appeal, and the Consumers bring two.

In its sole point, the OPC claims the Commission erred in issuing its February 14, 2008, Order because, under § 386.266.1, a fuel adjustment clause does not become effective until after the rate schedules have been approved and become effective and because allowing recovery for fuel costs prior to the effective date of the tariff sheets violates the prohibition against retroactive ratemaking. The Consumers’ first point largely mirrors that of the OPC.

“On appeal from a decision by the circuit court in a ease adjudicated by the PSC, the appellate court reviews the decision of the PSC, not the judgment of the circuit court.” State ex rel. Associated Natural Gas Co. v. Pub. Serv. Comm’n, 954 S.W.2d 520, 528 (Mo.App. W.D.1997). “The role of this court in reviewing the decision of the PSC is to determine whether the PSC’s order is lawful and reasonable.” Id. “The lawfulness of a PSC decision is determined from the statutory authority of the PSC.” Id. “In determining whether the PSC’s decision was lawful, this court exercises unrestricted, independent judgment and must correct erroneous interpretations of law.” Id.

Section 393.140(11) provides that “[n]o corporation shall charge, demand, collect or receive a greater or less or different compensation for any service rendered or to be rendered than the rates and charges applicable to such services as specified in its schedules ñled and in effect at the time.” (Emphasis added.) “The filed rate doctrine ... precludes a regulated utility from collecting any rates other than those properly filed with the appropriate regulatory agency.” State ex rel. Associated Natural Gas Co., 954 S.W.2d at 531. “This aspect of the filed rate doctrine constitutes a rule against retroactive ratemaking or retroactive rate alteration.” Id. Retroactive ratemaking is defined as “the setting of rates which permit a utility to recover past losses or which require it to refund past excess profits collected under a rate that did not perfectly match expenses plus rate-of-return with the rate actually established.” State ex rel. Util. Consumers’ Council of Mo., 585 S.W.2d at 59. The filed rate doctrine’s rule against retroactive ratemaking has an “underlying policy of predictability, meaning that if a utility is bound by the rates which it properly filed with the appropriate regulatory agency, then its customers will know prior to purchase what rates are being charged, and can therefore make economic or business plans or adjustments in response.” State ex rel. Associated Natural Gas Co., 954 S.W.2d at 531 (emphasis added). In other words, the approved tariffs are to “provide advance notice to customers of prospective charges, allowing the customers to plan accordingly.” Id.

Moreover, “[t]he language of section 386.500.2 (requiring the application for rehearing to be filed before the effective date of the order) causes us to believe that the General Assembly wished to allow the PSC an opportunity to review any applications for rehearing before new rates are implemented so that the PSC can determine whether there was anything it had overlooked or misinterpreted.” State ex rel. AG Processing, Inc. v. Pub. Serv. Comm’n, 276 S.W.3d 303, 312 (Mo.App. W.D.2008) (emphasis added) (internal quotation omitted). “Thus, the PSC must delay implementation of new rates long enough to allow such applications to be filed.” Id.

Section 386.266, RSMo Cum.Supp.2005, grants the Commission statutory authority to authorize a fuel adjustment clause, providing:

1. Subject to the requirements of this section, any electrical corporation may make an application to the commission to approve rate schedules authorizing an interim energy charge, or periodic rate adjustments outside of general rate proceedings to reflect increases and decreases in its prudentlg incurred fuel and purchased-power costs, including transportation. The commission may, in accordance with existing law, include in such rate schedules features designed to provide the electrical corporation with incentives to improve the efficiency and cost-effectiveness of its fuel and purchased-power procurement activities.
4. The commission shall have the power to approve, modify, or reject adjustment mechanisms submitted under subsections 1 to 8 of this section only after providing the opportunity for a full hearing in a general rate proceeding, including a general rate proceeding initiated by complaint. The commission may approve such rate schedules after considering all relevant factors which may affect the costs or overall rates and charges of the corporation, provided that if finds the adjustment mechanism set forth in the schedules:
(1) Is reasonably designed to provide the utility with a sufficient opportunity to earn a fair return on equity;
(2) Includes provisions for an annual true-up which shall accurately and appropriately remedy any over- or under-collections, including interest at the utility’s short term borrowing rate, through subsequent rate adjustments or refunds;
(3)In the case of an adjustment mechanism submitted under subsections 1 and 2 of this section, includes provisions requiring that the utility file a general rate case with the effective date of new rates to be no later than four years after the effective date of the commission order implementing the adjustment mechanism ....
5. Once such an adjustment mechanism is approved by the commission under this section, it shall remain in effect until such time as the commission authorizes the modification, extension, or discontinuance of the mechanism in a general rate case or compliant proceeding.

(Emphasis added.) Thus, under the plain language of this statute, the Commission may approve a fuel adjustment clause by adopting specific rate schedules (tariffs) incorporating such an adjustment. Only costs incurred after the effective date of an appropriate tariff may be recovered under a fuel adjustment clause. See State ex rel. Associated Natural Gas Co., 954 S.W.2d at 531.

In the case at bar, the Commission’s May 17 Order simply announced that it would, in the future, approve rate schedules submitted by Aquila that utilized a fuel adjustment clause, provided certain criteria were met. Those criteria were not specific enough to allow a customer to calculate how much they would be paying as a result of the fuel adjustment clause, and that Order did not specify the date on which the fuel adjustment clause would begin to apply to fuel consumed by Aquila customers. Aquila even had difficulty interpreting the criteria set forth in the Commission’s order, as evidenced by Aquila’s repeated submission of rate schedules to the Commission that were deemed not to comply with the order. Likewise, the Commission’s May 31 and June 14 Orders rejecting Aquila’s proposed fuel adjustment clause tariffs did not reference a start date for fuel adjustments to begin. Until the rate schedules were actually adopted by the Commission, Aquila’s customers had no means of calculating how much, if anything, their electrical use would cost them by way of the theoretical fuel adjustment clause or any notice of when such a fuel adjustment clause would begin to apply.

The applicable tariffs containing the fuel adjustment clause were not approved by the Commission until June 29 and did not become effective per the Commission’s order until July 5th. Thus, any adjustment to the cost of electricity based on electricity that had already been consumed by Aquila customers prior to the effective date clearly constitutes retroactive rate-making.

In rendering its opinion, the Commission wholly disregards the applicable statutory language, the filed rate doctrine, and the prohibition on retroactive ratemaking and, instead, focuses on the language of its own regulations, which provide that a “[t]rue-up year [the period for which a company may accumulate costs for a fuel adjustment clause] means the twelve (12)— month period beginning on the first day of the calendar month following the effective date of the commission order approving a [Rate Adjustment Mechanism] unless the effective date is the on the first day of the calendar month.” 4 CSR 240-3.161(l)(G). After finding this regulation ambiguous as to which of its orders approved the rate adjustment mechanism, the Commission concluded that the actual approval of the rate schedules utilizing the fuel adjustment clause was merely a ministerial act and that its May 17 order, in which it generally concluded that a fuel adjustment clause for Aquila would be appropriate, established the relevant date for determining when a rate adjustment mechanism was approved and the true-up year begins to run. Nothing in the Commission’s Order even attempts to justify its disregard of the applicable statutory language and the prohibition on retroactive ratemaking, and this Court has found no authority, statutory or otherwise, authorizing the Commission to do so.

For the foregoing reasons, the judgment of the circuit court affirming the Commission’s Order is reversed, and the cause is remanded to the circuit court with directions to remand to the Commission for further proceedings consistent with this opinion.

All concur.

      . For ease of reference, this company will be simply referred to as Aquila the remainder of this opinion.

      . 4 CSR 240-20.090(l)(C) defines a fuel adjustment clause as “a mechanism established in a general rate proceeding that allows periodic rate adjustments, outside a general rate proceeding, to reflect increases and decreases in an electric utility's prudently incurred fuel and purchased power costs.”

      . In the context of cases before the Commission, the terms "tariff” and "rate schedule” are synonymous. See Inter-City Beverage Co. v. Kansas City Power & Light Co., 889 S.W.2d 875, 876 (Mo.App. W.D.1994); Carter’s Custom Tile & Remodeling, Inc. v. S.W. Bell Tel. Co., 834 S.W.2d 892, 893 (Mo.App. E.D. 1992).

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

      . Indeed, Aquila held this same view of the law through December 2007. In its May 30, 2007 Response to Staffs Recommendation to Reject Tariff Sheets, Aquila stated:
      If the Commission fails to approve tariff sheets that authorize Aquila to implement its FAC on or before June 1, 2007, the Company will be prohibited from accumulating and eventually collecting from customers fuel and purchased power costs incurred to provide service to customers for the entire month of Juñe and continuing thereafter until such times as tariff sheets implementing the FAC are approved.
      In its June 18, 2007 Motion for Expedited Treatment, Aquila stated, “If the revised sheets are not made effective on or before June 30, 2007, Aquila may be denied recovery of more than $11 million in fuel and purchased power costs in the month of July 2007, alone.” In its June 29, 2007 Request for Reconsideration, Aquila pleaded:
      Unless the order approving the FAC tariff sheets bears an effective date of Sunday July 1, 2007 (or an earlier date), Aquila risks losing the ability to recover its fuel costs for the month of July. See 4 CSR 240-20.090(2)(I). Accordingly, Aquila respectfully requests that the Commission reconsider its Order Granting Expedited Treatment and Approving Tariff Sheets, and, on this same date, issue a new order approving the tariff sheets, effective Sunday, July 1, 2007.

      . Having reached this conclusion, we need not address the Consumers’ second point on appeal.


author: JAMES EDWARD WELSH, Judge.

text:
    STATE of Missouri ex rel. MISSOURI PUBLIC SERVICE COMMISSION, Appellant, v. MISSOURI GAS COMPANY, LLC, et al., Respondents.
    No. WD 71228.
    Missouri Court of Appeals, Western District.
    April 6, 2010.
    Application for Transfer Denied June 29, 2010.
    Jennifer L. Heintz, Samuel Ritchie, Jefferson City, for appellant.
    David G. Brown, Columbia, MO, Leland B. Curtis, Co-Counsel, St. Louis, MO, for Respondents.
    Before JAMES EDWARD WELSH, P.J., MARK D. PFEIFFER, and KAREN KING MITCHELL, JJ.
   JAMES EDWARD WELSH, Judge.

The State of Missouri on behalf of the Public Service Commission appeals the circuit court’s judgment granting a motion for judgment on the pleadings filed by several pipeline companies, which we refer to collectively as MoGas. In its petition, the Commission contended that MoGas owed penalties due to MoGas’s failure to obtain the Commission’s authorization to transfer, merge, or consolidate its operations in violation of section 893.190.1, RSMo 2000. On appeal, the Commission asserts that the circuit court erred in granting MoGas’s motion for judgment on the pleadings because (1) the well-pleaded facts in the petition establish that MoGas violated section 393.190.1, and (2) this court’s prior opinion in Missouri Public Service Commission v. Missouri Interstate Gas, LLC, 266 S.W.3d 881 (Mo.App.2008), is the law of the case and, pursuant to that case, MoGas was required to comply with Missouri law while under the Commission’s jurisdiction. We affirm the circuit court’s judgment.

“‘The question presented by a motion for judgment on the pleadings is whether the moving party is entitled to judgment as a matter of law on the face of the pleadings.’ ” Eaton v. Mallinckrodt, Inc., 224 S.W.3d 596, 599 (Mo. banc 2007) (quoting RGB2, Inc. v. Chestnut Plaza, Inc., 103 S.W.3d 420, 424 (Mo.App.2003)). “The party moving for judgment on the pleadings admits, for purposes of the motion, the truth of all the opposing party’s well pleaded facts, and the motion is properly granted if, from the face of the pleadings, the moving party is entitled to a judgment as a matter of law.” Craig v. Mo. Dep’t of Health, 80 S.W.3d 457, 459 (Mo. banc 2002).

On December 15, 2008, the Commission initiated this case by filing a petition in the Circuit Court of Cole County seeking penalties from MoGas for MoGas’s failure to obtain the Commission’s authorization to transfer, merge, or consolidate its operations in violation of section 393.190.1. The facts as pleaded in the Commission’s petition were as follows. As early as August 1, 1989, and through June 1, 2008, MoGas was a public utility and a gas corporation that provided natural gas transportation service to customers in Missouri under tariffs approved by the Commission. During this time, MoGas operated as an intrastate natural gas pipeline exempt from federal jurisdiction and was subject to the Commission’s jurisdiction.

On June 28, 2006, MoGas applied to the Federal Energy Regulatory Commission (FERC) to transfer, merge, or consolidate its operations into an interstate pipeline. MoGas did not seek authorization from the Commission to transfer, merge, or consolidate its operations. MoGas was regulated by the Commission and under the Commission’s jurisdiction until June 1, 2008, when the FERC granted MoGas’s application and took exclusive jurisdiction over MoGas and its pipeline. Subsequent to the FERC taking jurisdiction over Mo-Gas, MoGas transferred, merged, or consolidated its intrastate operations into a single interstate operation.

According to its petition, the Commission contended that the above pleaded facts stated a violation of section 393.190.1, in that MoGas “failed to secure from the Commission an order authorizing” the transfer, merger, or consolidation of its franchise, works, or system “prior to or at the same time” that MoGas filed its FERC application to become an interstate pipeline. The Commission prayed that, pursuant to section 386.570, RSMo 2000, the circuit court should impose penalties on MoGas for the period June 28, 2006, to June 1, 2008, which was the period during which MoGas’s FERC application was pending but before MoGas engaged in any transfer, merger, or consolidation of its franchise, works, or system into a single interstate operation.

On February 11, 2009, MoGas timely answered the petition and filed a motion for judgment on the pleadings. On June 1, 2009, the circuit court granted MoGas’s motion, concluding that the only allegation of misconduct contained in the petition was that MoGas applied to the FERC to become an interstate pipeline and that such conduct was not prohibited by section 393.190.1. The Court stated:

Plaintiffs do not allege that [MoGas] sold, assigned, leased, transferred, mortgaged, or otherwise disposed of or encumbered all or any part of its assets prior to June 1, 2008. Their allegations collapse to the single allegation[:] the Defendant’s application to the FERC constitutes a violation of this statute.
A review of the statute (§ 393.190.1) does not reveal liability for taking a substantial step towards, attempting or even merely contemplating selling, assigning, leasing, transferring or any other conduct which is prohibited by the statute. Simply stated, the plain language of this statute does not prohibit entering into a contract to merge or to sell, but only the consummation of such transaction without [the Commission’s] approval.
A utility is not required to comply with a statute which does not apply to its conduct. As a result, its failure to comply creates no liability under the facts of this case.

The Commission appeals from the circuit court’s judgment granting MoGas’s motion for judgment on the pleadings.

In its first point on appeal, the Commission contends that the circuit court erred in granting MoGas’s motion for judgment on the pleadings because the well-pleaded facts in the petition establish that MoGas violated section 393.190.1. We disagree.

Section 393.190.1 says:
No gas corporation ... shall hereafter sell, assign, lease, transfer, mortgage or otherwise dispose of or encumber the whole or any part of its franchise, works or system, necessary or useful in the performance of its duties to the public, nor by any means, direct or indirect, merge or consolidate such works or system, or franchises, or any part thereof, with any other corporation, person or public utility, without having first secured from the commission an order authorizing it so to do. Every such sale, assignment, lease, transfer, mortgage, disposition, encumbrance, merger or consolidation made other than in accordance with the order of the commission authorizing same shall be void.

We find nothing in section 393.190 that requires a gas corporation to obtain an order from the Commission during the period in which the gas corporation may be contemplating or preparing to “sell, assign, lease, transfer, mortgage, or otherwise dispose of or encumber the whole or any part of its franchise, works or system” or to “merge or consolidate such works or system, or franchises, or any part thereof, with any other corporation, person or public utility!.]”

Section 393.190 merely says that, before a gas corporation can transfer, merge or consolidate its operations with any other corporation or public utility, the gas corporation must first secure an order from the Commission authorizing it to do so. In this case, MoGas did not transfer, merge, or consolidate its operations into a single interstate operation until after June 1, 2008, when the FERC had exclusive jurisdiction over it. The Commission seeks penalties for the period beginning on June 28, 2006, and ending on June 1, 2008, which is the period during which MoGas was merely preparing to transfer, merge, or consolidate its operations. Until MoGas actually transferred, merged, or consolidated its operations, section 393.190’s requirement of Commission approval was not implicated. Such a transfer, merger, or consolidation did not occur in this case until after MoGas’s FERC application was approved and MoGas was no longer under the Commission’s jurisdiction. Once Mo-Gas was under the FERC’s jurisdiction, the Commission’s approval was no longer required.

In asserting that the circuit court erred in granting MoGas’s motion for judgment on the pleadings, the Commission contends that this court’s prior opinion in Missouri Public Service Commission v. Missouri Interstate Gas, LLC, 266 S.W.3d 881 (Mo.App.2008), is the law of the case, and, pursuant to that case, MoGas was required to comply with Missouri law while under the Commission’s jurisdiction. In the Missouri Interstate Gas case, the Commission sought a preliminary and permanent injunction against the companies involved in this case and Missouri Interstate Gas, LLC. Id. at 882. The Commission sought to prevent the companies from obtaining federal approval for a consolidated interstate pipeline without first obtaining the Commission’s approval. Id. at 885. This court ruled that the appeal was moot because the companies were no longer under the Commission’s jurisdiction. Id. In so ruling, the court, in dicta, also said:

[The Commission] represented to this Court that it is not seeking to “forever preclude” the Pipelines from applying to FERC for authorization to commence interstate operations but, rather, to require the Pipelines to comply with § 393.190.1 before doing so. Although the trial court correctly concluded that [the Commission] cannot preclude the Pipelines from applying to FERC for authority to commence interstate operations, that application may be concurrent with an application to [the Commission] under § 393.190.1. The Pipelines must still comply with Missouri law as long as they are under [the Commission’s] jurisdiction, and the Pipelines concede that they failed to comply with § 393.190.1.

Id. We do not quarrel, however, with this dicta. MoGas could have concurrently filed an application with the FERC and sought the Commission’s approval to transfer, merge, or consolidate its operations if it was seeking to transfer, merge, or consolidate its operations regardless of whether the FERC approved its application for interstate operations. If MoGas was seeking to transfer, merge, or consolidate its operations regardless of whether the FERC approved its application for interstate operations, then this court was absolutely correct in saying that MoGas would have to “comply with Missouri law as long as [it was] under [the Commission’s] jurisdiction[.]” That MoGas conceded that it failed to comply with section 393.190.1 is not an admission by MoGas that it had to comply with section 393.190.1. Moreover, construction of section 393.190.1 was not necessary to the disposition of the Missouri Interstate Gas case as the court determined that the Commission’s appeal in that case was moot. Id.

Because the FERC granted MoGas’s application, we do not know whether MoGas would have proceeded with its transfer, merger, or consolidation of its operations in the event that the FERC declined to authorize MoGas’s application. If the FERC denied MoGas’s application and MoGas proceeded anyway with its transfer, merger, or consolidation of its operations without the Commission’s approval, then the Commission would have been entitled to seek penalties under section 386.570, RSMo 2000, from MoGas. Because, however, the Commission’s petition did not allege that MoGas transferred, merged, or consolidated its operations pri- or to June 1, 2008, when the FERC assumed jurisdiction over MoGas, the circuit court did not err in granting MoGas’s motion for judgment on the pleadings.

We, therefore, affirm the circuit court’s judgment.

All concur.

      . The pipeline companies in this case are affiliated companies involved in the transportation and sale of natural gas: Missouri Gas Company, LLC; Missouri Pipeline Company, LLC; MoGas Pipeline, LLC; United Pipeline Systems, LLC; and Gateway Pipeline Company, LLC. According to the petition, Missouri Gas Company, LLC, and Missouri Pipeline Company, LLC, have changed their names to Mogas Pipeline, LLC. Mogas Pipeline, LLC, is also a wholly-owned subsidiary of United Pipelines Systems, LLC, which is a wholly-owned subsidiary of Gateway Pipeline Company, LLC.

      . In its petition, the Commission notes that Mogas Pipeline, LLC, formerly known as Missouri Pipeline Company, LLC, and Missouri Pipeline, was certified by the Commission in 1989 and operated as a public utility and gas corporation between August 1, 1989, and June 1, 2008. Also, MoGas Pipeline, LLC, formerly known as Missouri Gas Company, LLC, and Missouri Gas Company, was certified by the Commission in 1996 and operated as a public utility and gas corporation between December 3, 1996, and June 1, 2008.

      . The Missouri Public Service Commission has no authority to regulate interstate gas pipelines.

      . MoGas argues that the law of the case doctrine does not apply in this case because the present action is an entirely different cause of action, initiated by a different pleading, and is not a result of a remand ordered in the Missouri Interstate Gas case. According to Mo-Gas, the law of the case in Missouri Interstate Gas is the law of that case and not the law of the present case. Because, however, we find that Missouri Interstate Gas is not inconsistent with our holding in this case, whether or not Missouri Interstate Gas is the law of the case is inconsequential.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Kenneth RASMUSSEN, Appellant.
    No. WD 70151.
    Missouri Court of Appeals, Western District.
    April 27, 2010.
    Application for Transfer Denied June 29, 2010.
    Kent Denzel, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq., and Karen L. Kramer, Esq., Jefferson City, MO, for respondent.
    Before: LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Kenneth Rasmussen challenges the sufficiency of the evidence to support his conviction for driving while intoxicated as an aggravated offender. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the conviction.

AFFIRMED. Rule 30.25(b).


text:
    Shirley WADE, Personal Representative of the Estate of Clarissa E. Wade, Respondent, v. CLARION MORTGAGE CAPITAL, INC., Appellant.
    No. WD 71128.
    Missouri Court of Appeals, Western District.
    May 11, 2010.

      Steven M. Aaron and Joshua M. Ellwan-ger, Kansas City, MO, for appellant.
    Paul K. Hentzen, Leawood, KS, for respondent.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Clarion Mortgage Capital, Inc. (“Clarion”) appeals from the Jackson County trial court’s judgment, following a jury verdict, which awarded Clarissa Wade (“Clarissa”) $8,600 in damages on her fraudulent misrepresentation claim. Clarion contends that the trial court erred in its determination that Clarissa made a submissible case of fraud. Clarion maintains that Clarissa failed to present any evidence that its loan officer, Rob Hartman (“Hartman”), made representations directly to Clarissa concerning constraints on the disbursement of loan proceeds, or any evidence that such representations to Shirley Wade (“Shirley”) were then communicated by Shirley to Clarissa. Clarion maintains that Clarissa thus failed to present any evidence that she relied on representations concerning constraints on the disbursement of loan proceeds before entering into the loan with Clarion. We affirm.

Facts and Procedural History

In 2004, Clarissa owned and lived in a home on Virginia Avenue in Kansas City, Missouri. Clarissa’s daughter, Shirley, lived with her, and took care of Clarissa and her finances.

On July 28, 2004, Shirley answered an unsolicited telephone call at Clarissa’s home. The individual on the phone asked Shirley if any work needed to be done on the home. Shirley told the caller that there was some work that needed to be done, but that her mother was 89 years old and did not have good credit. Notwithstanding, the caller sent someone out to meet with Shirley.

KC Builders sent Mike Phelps to Clarissa’s home on July 29, 2004. Phelps identified himself and told Shirley he was known as “Big Mike.” Big Mike walked around Clarissa’s house with Shirley. Shirley showed him some bricks that had come loose and some rotted boards. Shirley also showed Big Mike some work that needed to be done on the inside of Clarissa’s home.

After looking around the home, Big Mike quoted Shirley a price for the work. He wrote that price on the back of his business card. The price Shirley was given was $19,866. Shirley told Big Mike that Clarissa did not have that kind of money. Big Mike told Shirley that he would get Clarissa a loan.

Big Mike walked outside, and then came back into the house with a contract and a loan application. Clarissa signed the contract, which detailed the work to be done on the home. The contract was filled out by Big Mike and showed Clarissa’s last name as “Johnson,” instead of Wade. “Johnson” had been Clarissa’s first husband’s name. Clarissa had remarried and was known as Clarissa Wade for fifty-nine years. However, the record title to her home was still in the name of Clarissa Johnson. Apparently, KC Builders, or someone working with KC Builders, had conducted a title search on Clarissa’s property before Big Mike went out to meet with Clarissa. Clarissa signed the contract as “Clarissa Johnson” because Big Mike told her to, since the house was titled in that name.

Big Mike also had Clarissa sign a Credit Application for a Property Improvement Loan. As with the contract addressing the construction work to be performed on the home, the loan application incorrectly noted Clarissa’s last name as “Johnson.” Clarissa again signed as “Clarissa Johnson” on Big Mike’s instruction. The loan application paperwork had a variety of handwritten entries made by Big Mike, noting Clarissa’s other credit obligations, including the existing first mortgage on her home, which had a balance of only $14,000.

The cost of the work to be performed as shown on the construction contract was $21,866, two thousand dollars more than Big Mike had quoted Shirley just moments before presenting the contract to Clarissa for her signature. Shirley did not notice this discrepancy until after her mother had signed the contract and until after Big Mike left.

When Big Mike left, he told Shirley he would be in touch. Big Mike told Shirley that “he got elderly people loans.” However, Shirley did not believe her mother’s loan application would be approved because Clarissa had bad credit, was elderly, and did not have much of an income.

On September 1, 2004, Big Mike called and told Shirley that Clarissa’s loan had been approved. Shirley was advised the loan would be through Clarion. Big Mike told Shirley that Hartman and Jeremy Bredwell (“Bredwell”) would come to the house so Clarissa could sign necessary paper work.

About ten minutes later, Bredwell called and made arrangements to come to Clarissa’s home. Bredwell and Hartman came to Clarissa’s home on September 2, 2004. Both provided Shirley with their business cards, identifying themselves as loan officers for Clarion.

Hartman and Bredwell arrived at Clarissa’s home with papers for Clarissa to sign. Clarissa was not feeling well that day and asked Hartman if Shirley could sign the paperwork for her. Hartman indicated that would be fine. Shirley thus signed Clarissa’s name to both a Uniform Resident (sic) Loan Application and a Mortgage Brokerage Business Contract. Shirley told Hartman and Bredwell that she had seen Big Mike on television regarding work he had not finished. Shirley questioned them about it and was told that the contractor would not get paid until the work was done. This conversation occurred in the kitchen — the same room where the paperwork had been signed.

On September 21, 2004, Hartman and Bredwell returned to Clarissa’s home. They arrived with a stack of papers to be signed. Though Clarissa was present, Shirley again signed Clarissa’s name to all of the papers. Though the record is not completely clear, it appears the papers signed on September 21, 2004, were “final” loan documents, as they included a Settlement Statement. The Settlement Statement reflected a number of Clarissa’s creditors who were to be paid from the loan proceeds, including the first mortgage lender. The Settlement Statement also reflected that Clarissa would receive “cash” from the transaction in the amount of $1666.32.

Shirley signed all of the papers in the kitchen, with Hartman and Bredwell standing on either side of her. Shirley testified her mother was “there at the time” and “directed” her to sign for her. Hartman and Bredwell then left with the signed papers and told Shirley they would bring Clarissa’s copies back to her, along with her check for the net loan proceeds once the loan closed.

On September 22, 2004, the day after the final loan documents were signed, KC Builders began work on Clarissa’s home. Clarissa’s loan closed on September 24, 2004. The total amount of Clarissa’s loan was $48,000. KC Builders was paid $25,000 from the loan proceeds on that same date.

On September 27, 2004, Hartman and Bredwell returned to Clarissa’s home. Hartman gave Clarissa her $1,666.32 check for the balance of the loan proceeds. Hartman also gave Clarissa copies of the final loan documents which had been signed on September 21, 2004.

KC Builders did not finish its work on Clarissa’s home until the third week of October 2004. Almost immediately, Shirley noticed certain defects in the work. Painted walls had not been primed, and the wood behind the paint was bleeding through. A wood floor installed in a utility room over a concrete floor covered what had been the exposed overflow drain. The garage floor started cracking. The garage door would not close all of the way where concrete had been poured. Shirley called KC Builders about these problems several times. Shirley did not know at the time, and did not learn until later, that KC Builders had been paid $25,000 on the day Clarissa’s loan closed. Shirley could not explain why KC Builder’s was paid more than the amount of the construction contract, $21,866. Given Hartman’s and Bredwell’s representations that the contractor would not be paid until the construction work was complete, Shirley could not explain why the contractor had been paid before the work was completed.

Shirley also testified that although the loan proceeds were to have been used in part to pay Clarissa’s creditors, many of those creditors continued to call Clarissa for payment, suggesting that some of the creditors had not been paid from the loan proceeds.

On May 6, 2005, a Petition was filed on Clarissa’s behalf, through her next friend, Shirley, against Clarion. The petition asserted a claim for fraudulent misrepresentation by Clarion with respect to the release of loan proceeds to the contractors before the work on Clarissa’s house was complete. The petition also alleged a violation of the Missouri Merchandising Practices Act. The ease was tried February 23-26, 2009. At the close of all of the evidence, Clarion’s motion for directed verdict was overruled except that the trial court did not permit the submission of punitive damages. The jury returned a verdict for Clarissa on the fraudulent misrepresentation claim in the amount of $8,600. The jury returned a verdict in favor of Clarion on the Missouri Merchandising Practices Act claim. The trial court entered its judgment accordingly on March 3, 2009. This appeal follows.

Standard of Review

Whether Clarissa made a submissible claim of fraudulent misrepresentation, is a question of law which we review de novo. Shobe v. Kelly, 279 S.W.3d 203, 209 (Mo.App. W.D.2009) (citing Rinehart v. Shelter Gen. Ins. Co., 261 S.W.3d 583, 595 (Mo.App. W.D.2008)). “We accept the plaintiffs evidence as true, disregard the defendants’ contradictory evidence, and draw all inferences in favor of the plaintiffs case.” Id. We also review de novo whether the evidence presented was substantial and whether the inferences drawn from the evidence were reasonable to support the jury’s verdict. Id. A jury’s verdict is reversed for insufficient evidence “only where there was a complete lack of probative fact to support its conclusion.” Id.

Analysis

In Clarion’s sole point on appeal, it contends that the trial court erred in its determination that Clarissa made a sub-missible case of fraud. Clarion maintains that Clarissa failed to present any evidence that Hartman made any representations directly to Clarissa concerning the disbursement of the loan money or that Clarissa had knowledge of the alleged representations made by Clarion’s loan officers to Shirley. Clarion maintains that Clarissa thus failed to present any evidence that she relied on the representations of Clarion’s loan officers before signing the final loan documents on September 21, 2004.

In order to make a submissible case of fraudulent misrepresentation, Clarissa was required to present substantial evidence from which the jury could have reasonably found each and every element of her claim. Townsend v. E. Chem. Waste Sys., 234 S.W.3d 452, 464 (Mo.App. W.D.2007).

The elements of fraudulent misrepresentation are:(l) the speaker makes a false, material representation; (2) the speaker knows the representation is false or is ignorant of its truth; (3) the speaker intends that the representation should be acted on by the hearer in the manner reasonably contemplated; (4) the hearer is ignorant of the falsity of the representation; (5) the hearer relies on the representation’s truth; (6) the reliance is reasonable; and (7) the hearer’s reliance on the representation causes injury.

Bryant v. Smith Interior Design Group, Inc., 310 S.W.3d 227, 233 (Mo. banc 2010). The two essential elements Clarion contends were supported by no evidence are (1) whether the speaker, one of Clarion’s loan officers, made a false, material representation to Clarissa, the alleged “hearer,” and (5) in the absence of any such evidence, whether the hearer, Clarissa, relied on the representation’s truth. Clarion does not contest that its loan officers made the representation that the contractor would not be paid until its work was complete. Rather, Clarion suggests that at best, the evidence indicates this representation was made only to Shirley. Clarion argues that the absence of evidence that the representation was made directly to Clarissa or that the representation was reported by Shirley to Clarissa is fatal to Clarissa’s fraudulent misrepresentation claim. We disagree with Clarion’s narrow and constrained reading of the record.

In its brief and at oral argument, Clarion repeatedly emphasized that the trial transcript does not contain a precise, clear statement to the effect that Clarissa was in the kitchen with Shirley, Bredwell, and Hartman when Shirley asked about whether the contractor’s payment would be held until the contractor’s work was complete. Though this is true, Clarion ignores testimony from which the jury could reasonably have inferred this fact.

The only witness who testified at trial was Shirley. Shirley testified that on September 2, 2004, when Hartman and Bred-well came to Clarissa’s home to speak with Clarissa about a possible loan, they had preliminary loan documents they wanted “[m]y mother to sign. We went into the kitchen and my mother, she wasn’t feeling too good that day. She doesn’t see that good, so she asked Rob Hartman if it was okay that I would sign for her, he stated yes.” This testimony clearly suggests that all of the parties went in to the kitchen and that once in the kitchen, Clarissa had a direct conversation with Hartman about Shirley signing documents on her behalf. Shirley was questioned about the signature on one of the documents she signed for her mother on September 2, 2004. Shirley testified as follows:

Q: If you’d look to the last page, would you, please? Is there a signature on that page?
A: Yes, there is.
Q: Do you recognize it?
A: Yes.
Q: Whose is it?
A: It’s my mother’s name, my signature.
Q: It says Clarissa Wade, but you signed it on there?
A: Yes.
Q: Did you sign that at her direction? A: Yes.
Q: She asked you?
A: Yes.

(Emphasis added.) In addition, Shirley also testified that during the meeting with Hartman and Bredwell, both gentlemen accommodated Clarissa’s limitations.

Q: Rob Hartman and Jeremy Bred-well, they were cordial and nice to you when they came out to the house, weren’t they?
A: Yes.
Q: And they were nice and cordial to your mom?
A: Yes.
Q: And, in fact, they talked a little bit louder when addressing your mom because you told them she was hard of hearing?
A: Yes.
Q: And one of the things that they talked to you about which was kind of central to a lot of stuff you were talking about in your direct exam was certain payoffs that were required as a condition of the loan, correct?
A: Yes.
Q: They talked about conditions like payoff of credits, right?
A: Yes.
Q: And they also, there was specific discussions with you that you knew that K.C. Builders was going to be paid off at the close of the loan in the amount of $25,000; isn’t that true?
A: At the close of the loan he told me — excuse me. My understanding is that no one will be paid until the work was done.

There would have been no point or reason for Hartman and Bredwell to “speak up” when talking to Clarissa unless Clarissa was in the room with Shirley during the meeting.

Because we view the evidence and all reasonable inferences in the light most favorable to the verdict and disregard any evidence to the contrary, we are left with the inescapable conclusion that the jury reasonably concluded that Clarissa was both present and heard the representations made by Hartman and Bredwell. Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. banc 2010). Clarion presented no evidence contradicting Shirley’s testimony. In fact, other than its cross examination of Shirley, Clarion presented no evidence in this case at all. It has staked its appeal on its contention that nothing in Shirley’s testimony could be viewed as confirming Clarissa’s presence during the meeting where the representations critical to Clarissa’s false misrepresentation claim were made. Clarion’s position is without merit.

Clarion also argues that because Clarissa “did not testify at trial, or offer into evidence testimony from her deposition in this matter, there is no evidence of what she knew or relied on at the time she obtained the loan brokered by Clarion.” Clarion is essentially arguing that because Clarissa failed to testify, she could not otherwise establish the requisite element of a fraudulent misrepresentation claim of her reliance on a misrepresentation. Clarion fails to mention that Clarissa did not testify because she was incapacitated by the time of trial and was incompetent to do so. In fact, Clarion filed a motion in limine specifically requesting that Clarissa not be permitted to appear at trial. In support of its motion Clarion stated that:

Clarissa Wade should be prohibited from sitting in the courtroom, pursuant to Missouri S.Ct. Rule 52.05(k), as she has no probative value, except to inflame the passions of the jury, which is highly prejudicial to Clarion, as the court has already determined her to be “incapable by reason of mental or physical infirmity of ... properly caring for [her] own interests in [this] litigation.”

Clarion offers no authority to support the invalid premise underlying its argument that Clarissa’s reliance could only have been shown by Clarissa’s testimony. To the contrary, at trial, Shirley was asked:

Q: You’re complaining that the contractor was paid before he finished?
A: Yes.
Q: But you had a promise from the loan officers that that wouldn’t happen? A: Yes.
Q: Did you count on that, did you rely on that?
A: Yes.

(Emphasis added.) This “reliance” came from the representation made by Clarion’s loan officers during their first meeting with Shirley and Clarissa. We have already established that the evidence supports the conclusion that Clarissa was present and heard the representations made by the loan officers.

At oral argument, Clarion’s counsel suggested for the first time that this court must evaluate whether Clarissa’s evidence of her presence during the first meeting with Hartman and Bredwell, and thus her evidence of having heard their representation about when the contractor would be paid, satisfied the “clear and convincing” burden of proof applied in fraudulent misrepresentation claims. Kempton v. Dugan, 224 S.W.3d 83, 87 (Mo.App. W.D.2007). This argument is materially differ ent from the argument raised by Clarion on appeal and asserted by Clarion in its motion for new trial. Up until the point of oral argument, Clarion has consistently contended that no evidence was presented that Clarissa either heard or relied on the representation made by Clarion’s loan officers. Pursuant to this argument, the applicable “burden of proof’ is irrelevant. On appeal, Clarion seemed to “hedge its bets,” suggesting for the first time that even if some evidence that Clarissa heard and relied on the representation was presented, the evidence was not sufficient to satisfy the clear and convincing standard. This argument was not preserved and will be disregarded. Vance Bros. v. Obermiller Constr. Servs., Inc., 181 S.W.3d 562, 564 n. 3 (Mo. banc 2006) (stating that in a jury tried case, an appellant must raise the alleged error in a motion for new trial in order to preserve the issue for appellate review); Giles v. Riverside Transp., Inc., 266 S.W.3d 290, 296 (Mo.App. W.D.2008) (stating that the questions for decision on appeal are those stated in the points relied on; a question not there presented will be considered abandoned).

Clarion’s contentions that no evidence was submitted to demonstrate that Clarissa either heard or relied on Clarion’s loan officer’s misrepresentation about payment to the contractor are without merit. There was uncontested evidence in the record to permit the jury to conclude that Clarissa both heard and relied on the misrepresentation made by Clarion’s loan officers. The trial court did not error in submitting Clarissa’s claim of fraudulent misrepresentation.

Conclusion

For the aforementioned reasons, the judgment of the trial court is affirmed.

All concur.

      . We view the facts in the light most favorable to the jury’s verdict. State v. O'Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993).

      . None of the trial exhibits were submitted to this Court for review.

      . The total amount of the loan was for $48,000.

      . Wade's post-argument Motion for Attorney’s Fees for Frivolous Appeal is denied.


author: KENNETH M. ROMINES, Chief Judge.

text:
    Michael YAKES, Claimant/Appellant, v. ROLAND LAWN SERVICE, INC., and Division of Employment Security, Respondents.
    No. ED 94545.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 25, 2010.
    Michael Yakes, New London, MO, pro se
    Roland Lawn Service Inc. c/o Shannon M. Roland, Hannibal, MO, Michael Pritch-ett, (Div. of Employment Security), Jefferson City, MO, for respondents.
   KENNETH M. ROMINES, Chief Judge.

Michael Yakes (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision denying his application for unemployment benefits. We dismiss the appeal.

A deputy of the Division of Employment Security (Division) concluded that Claimant was ineligible for unemployment benefits. He appealed to the Appeals Tribunal of the Division, which affirmed the deputy’s decision. Claimant then filed an application for review with the Commission, which issued an order affirming the Appeals Tribunal’s decision. Claimant filed a notice of appeal to this Court. The Division has filed a motion to dismiss Claimant’s appeal, asserting it is untimely. Claimant has filed a response to the motion.

Section 288.210, RSMo 2000, requires that a claimant file a notice of appeal to this Court from the Commission’s decision within twenty days of the decision becoming final. The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. Here, the Commission mailed its decision to Claimant on February 22, 2010. Therefore, the notice of appeal to this Court was due on or before March 24, 2010. Sections 288.200.2, 288.210.

Here, the Commission mailed its decision to Claimant on February 4, 2010. Therefore, the notice of appeal to this Court was due on or before March 8, 2010. Sections 288.200.2, 288.210. Claimant mailed his notice of appeal to the Commission. Under section 288.240, RSMo 2000, a notice of appeal that is mailed to the Commission is “deemed to be filed as of the date endorsed by the United States post office on the envelope.... ” Here the date endorsed by the United States post office was March 10, 2010. As a result, Claimant’s notice of appeal is untimely.

In his response, Claimant asserts he mailed the notice of appeal in a timely fashion, but it was mailed to the wrong address and was late. However, the statute provides that the date of filing is actually the date the envelope is postmarked, and not the date actually received by the Commission. As stated above, the postmark is March 10, 2010. Despite his assertions, the record demonstrates that Claimant did not mail the notice of appeal until March 10, 2010, which was untimely.

Unfortunately, the unemployment statutes do not provide for the late filing of the notice of appeal and do not recognize any exceptions for filing out of time. McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). In addition, an untimely notice of appeal deprives this Court of jurisdiction to entertain the appeal and we must dismiss it. Wancel v. DT Management, LLC, 299 S.W.3d 49, 50 (Mo.App. E.D.2009).

The Division’s motion to dismiss is granted. The appeal is dismissed for lack of jurisdiction.

NANNETTE A. BAKER, J. and ROY L. RICHTER, J., concur.


text:
    Mark SHAVER, Claimant/Appellant, v. CASINO ONE CORPORATION and Division of Employment Security, Respondents.
    No. ED 94617.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 25, 2010.
    Mark Shaver, Florissant, MO, pro se.
    Stuart R. Berkowitz, (Casino One Corporation), St. Louis, MO, Michael Pritch-ett, (Div. of Employment Security), Jefferson City, MO, for respondents.
   KENNETH M. ROMINES, Chief Judge.

Mark Shaver (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision denying his application for unemployment benefits. We dismiss the appeal.

A deputy of the Division of Employment Security (Division) concluded that Claimant was eligible for unemployment benefits. His employer then appealed to the Appeals Tribunal of the Division, which reversed the deputy’s decision and concluded Claimant was ineligible for benefits. Claimant then filed an application for review with the Commission, which issued an order affirming the Appeals Tribunal’s decision. Claimant filed a notice of appeal to this Court. The Division has filed a motion to dismiss Claimant’s appeal, asserting it is untimely. Claimant has filed a response to the motion.

Section 288.210, RSMo 2000, requires that a claimant file a notice of appeal to this Court from the Commission’s decision within twenty days of the decision becoming final. The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. Here, the Commission mailed its decision to Claimant on February 22, 2010. Therefore, the notice of appeal to this Court was due on or before March 24, 2010. Sections 288.200.2, 288.210. Claimant faxed his notice of appeal to the Commission on March 25, 2010. As a result, Claimant’s notice of appeal is untimely.

In his response, Claimant acknowledges that his notice of appeal is untimely, but asks this Court to deny the motion because of his lack of knowledge about the appellate process. Unfortunately, the unemployment statutes do not provide for the late filing of the notice of appeal and do not recognize any exceptions for filing out of time. McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). In addition, an untimely notice of appeal deprives this Court of jurisdiction to entertain the appeal and we must dismiss it. Wancel v. DT Management, LLC, 299 S.W.3d 49, 50 (Mo.App. E.D.2009).

The Division’s motion to dismiss is granted. The appeal is dismissed for lack of jurisdiction.

NANNETTE A. BAKER, and ROY L. RICHTER, JJ., concur.