author: JOSEPH M. ELLIS, Judge.

text:
    FINANCIAL SOLUTIONS AND ASSOCIATES, and Thomas Grimes, Appellants, v. Robin CARNAHAN, Secretary of State and Mathew Kitzi, Commissioner of Securities, Respondents.
    No. WD 71332.
    Missouri Court of Appeals, Western District.
    July 20, 2010.

      Steven W. Koslovsky, for Appellants.
    Jeremiah Morgan, for Respondent.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   JOSEPH M. ELLIS, Judge.

Appellants, Financial Solutions & Associates, Inc., (FSI) a St. Louis-based financial planning firm, and Michael Grimes (Grimes), the principle of FSI, (Appellants) appeal from an Order and Judgment of the Circuit Court of Cole County, which upheld the Findings of Fact, Conclusions of Law and Final Order (Finai Order) issued by the Missouri Commissioner of Securities (Commissioner) finding that the Appellants engaged in an act, practice, or course of business that operated as fraud or deceit upon persons under § 409.5-502(a). The Appellants also appeal from the Commissioner’s denial of their motion to disqualify. For the following reasons, we affirm.

On January 25, 2007, the Securities Division of the Office of Secretary of State (Division) filed a petition for an Order to Cease and Desist with the Commissioner against the Appellants alleging seven violations of law under the Missouri Securities Act of 2003. The Commissioner issued a Cease and Desist Order and sent notice to Grimes, providing him with an opportunity for a hearing. The Appellants requested a hearing and filed a motion to disqualify the Commissioner based on bias. The Commissioner denied the Appellants’ motion to disqualify because they cited to no authority and because Missouri statutes required the Commissioner to hold a hearing in the Appellants’ case.

A hearing regarding the Cease and Desist Order was subsequently held and, after the parties submitted Memorandum of Law, the Commissioner issued his Final Order concluding that Grimes and FSI, among other things and as pertinent to the appeal, engaged in an act, practice, or course of business that operated as fraud or deceit upon persons under § 409.5-502(a). The Commissioner fined the Appellants for violations of the Missouri Securities Act, and the Appellants timely sought judicial review with the Circuit Court of Cole County. The circuit court, after reviewing the record, briefs, and arguments of the parties, affirmed the Commissioner’s Final Order.

Our standard of review has been summarized as follows:

This court reviews the decision of the administrative agency, not that of the circuit court. On appeal from an agency decision in a contested case, we consider only whether the agency’s findings are supported by competent and substantial evidence on the record as a whole. We may not substitute our judgment on the evidence for that of the agency, and we must defer to the agency’s determinations on the weight of the evidence and the credibility of witnesses. If the decision of the agency is supported by substantial and competent evidence on the whole record, it must be affirmed. On the other hand, we must reverse the agency’s findings if it is determined the decision is not supported by competent and substantial evidence on the whole record, or if the decision constitutes an abuse of discretion, or is unauthorized by law, or is arbitrary and capricious.

Moses v. Carnahan, 186 S.W.3d 889, 899 (Mo.App. W.D.2006) (internal quotation and brackets omitted).

The Appellants first contend that the Commissioner erred in failing to disqualify himself as requested by their motion. “The procedural due process requirement of fair trials by fair tribunals applies to an administrative agency acting in an adjudicative capacity.” State ex rel. AG Processing Inc. v. Thompson, 100 S.W.3d 915, 919 (Mo.App. W.D.2003). “Officials occupying quasi-judicial positions are held to the same high standard as apply to judicial officers in that they must be free of any interest in the matter to be considered by them.” Id. at 919-20. “A presumption exists that administrative decision-makers act honestly and impartially, and a party challenging the partiality of the decision-maker has the burden to overcome that presumption.” Id. at 920. “A judge or administrative decision-maker is without jurisdiction ... if the judge or decision-maker failed to disqualify himself on proper application.” Id. “[A]ny administrative decision[-]maker who has made an unalterable prejudgment of operative adjudicative facts is considered biased.” Fitzgerald v. City of Maryland Heights, 796 S.W.2d 52, 59 (Mo.App. E.D.1990).

The Appellants contend that the Commissioner was biased and should have disqualified himself because he and the Secretary of State made public pronouncements that indicated he prejudged the case and he oversaw the Assistant Commissioner, who investigated and prosecuted the case. In their motion for disqualification and petition for judicial review, however, the Appellants did not mention any public pronouncements as a basis for disqualification. Rather, the Appellants only alleged that the Commissioner could not be fair and impartial because the Commissioner was in charge of the Assistant Commissioner and the enforcement section of the division. Nonetheless, we find that all the bases raised by the Appellants for disqualification fail.

The Appellants contend that the Commissioner’s Cease and Desist Order, which found the Appellants guilty of various violations of the Missouri Securities Act, and a press release issued by the Secretary of State describing the findings of the Cease and Desist Order, constituted evidence of bias and prejudgment on the part of the Commissioner. The Appellants cite two cases for support for their contention. First, they cite Texaco, Inc. v. FTC, 336 F.2d 754 (D.C.Cir.1964), vacated on other grounds by FTC v. Texaco, Inc., 381 U.S. 739, 85 S.Ct. 1798, 14 L.Ed.2d 714 (1965).

In Texaco, the Federal Trade Commission filed a complaint that Texaco coerced its dealers, through economic pressure, to distribute Goodrich tires, batteries, and accessories, thereby unfairly and unlawfully preventing Goodrich’s competitors from selling tires, batteries, and accessories to Texaco’s outlets. Id. at 756. As part of the procedural history of the case, Texaco filed a motion to have the Chairman of the Commission withdraw from participating in the proceeding or to have the Commission determine him to be disqualified. Id. at 759. The motion centered on a speech made by the Chairman before the National Congress of Petroleum Retailers, while the case was pending. Id. The Chairman refused to withdraw, the Commission declined to find that he was disqualified, and he participated in the order. Id. On appeal, the United States Court of Appeals determined that it was a denial of due process for the Chairman to participate in the hearing and order. Id. at 760.

The Appellant’s second case, In re 1616 Second Avenue Restaurant v. New York State Liquor Authority, 75 N.Y.2d 158, 551 N.Y.S.2d 461, 550 N.E.2d 910 (N.Y.1990), has facts similar to Texaco. The New York Appeals Court had to determine whether public statements made by the Chairman of the State Liquor Authority, in which the Chairman discussed the charges pending in a case against a licensee, should disqualify the Chairman from participating in the administrative review of the case. Id. at 911. The court held that the Chairman was disqualified because he made statements which, viewed in their entirety, evidenced that the Chairman believed the licensee violated the law. Id. at 913.

The Appellants compare the facts in Texaco and 1616 Second Avenue to the Commissioner issuing a Cease and Desist Order and the Secretary of State’s public comments regarding the Cease and Desist Order. First, because of the Appellants’ failure to provide us with a complete record on appeal, particularly the statements made by the Secretary of State, we are unable to give meaningful review to the Appellants’ claim of error. In re Estate of Abbott, 944 S.W.2d 279, 284 (Mo. App. S.D.1997) (“On appeal, a trial court judgment is presumed valid, and the burden is on appellant to show the incorrectness of the judgment. It is essential that this court have all the evidence necessary to decide the questions presented.” (internal quotation and citations omitted)). Second, the Missouri Securities Act allows the Commissioner to publish any record concerning an action or violation of the Act “if the commissioner determines it is necessary or appropriate in the public interest and for the protection of investors.” § 409.6-602(a)(3). Finally, the Commissioner was performing the duties prescribed by Missouri statute by entering a Cease and Desist Order under § 409.6-604(a)(1) and the fact that the Commissioner issued a Cease and Desist Order that was unfavorable to the Appellants does not show bias. “The mere fact that rulings are made against a party does not show bias or prejudice on the part of the judge.” Robin Farms, Inc. v. Bartholome, 989 S.W.2d 238, 247 (Mo.App. W.D.1999) (internal quotation omitted).

No decision of this Court would require us to hold that it would be a violation of procedural due process for a judge to sit in a case after he had expressed an opinion as to whether certain types of conduct were prohibited by law. In fact, judges frequently try the same case more than once and decide identical issues each time....

Withrow v. Larkin, 421 U.S. 35, 48-49, 95 S.Ct. 1456, 1465, 43 L.Ed.2d 712 (1975) (internal quotations omitted). “This is so because any alleged bias or prejudice on the part of the judge, to be disqualifying, must stem from an extrajudicial source.” Robin Farms, 989 S.W.2d at 247. The Commissioners actions, therefore, were not similar to the statements made by the Chairmen in Texaco and 1616 Second Avenue, and we cannot hold that the Commissioner was biased for issuing the initial Cease and Desist Order.

The Appellants also contend that the Commissioner was biased because the Commissioner was in charge of the Assistant Commissioner and the enforcement section of the Division, which conducted the investigation and prosecuted the action against the Appellants.

Under the Missouri Securities Act, the Commissioner has investigative and adjudicative duties. The Commissioner may conduct investigations when necessary to determine if a person has violated any provision of the Missouri Securities Act. § 409.6-602(a)(l). Likewise, the commissioner may issue an order to cease and desist when a person engages in a practice or course of business that violates the Missouri Securities Act. § 409.6-604(a)(l). Finally, the Commissioner and the Administrative Hearing Commission are authorized to hear cases brought under the Missouri Securities Act. Mo Code Regs. Ann. Tit. 15 § 30-55.010 (2003), For a Cease and Desist Order, the hearing is held before the Commissioner. Mo Code Regs. Ann. Tit. 15 § 30-55.010(l)(E) (2003). The Appellants essentially contend that the Commissioner demonstrated bias by performing the duties required of him by statute.

The Appellants cite Curran v. Commonwealth of PA., Board of Psychology, 766 A.2d 907 (Pa.Commw.Ct.2001), as support for their contention that the Commissioner’s dual roles created bias and partiality in their case. In Curr-an, a disciplinary case, a psychologist who had his license with the State Board of Psychology revoked filed a petition for review and contended that “improper commingling of adjudicative and prosecutorial functions tainted his hearing” because an attorney who served as counsel to the Board served as the senior prosecutor in the disciplinary action against him. Id. at 909-10. The Commonwealth Court of Pennsylvania determined that Curran’s right to a fair hearing included a hearing free from the prosecutor’s conflicts. Id. at 910-11.

Unlike in Curran, where evidence showed the prosecutor acted as counsel to the board, there is no evidence here that the Commissioner participated in any of the investigations relating to Appellants. In fact, the Assistant Commissioner appeared on behalf of the Commission and prosecuted the case while the Commissioner adjudicated the case. The Appellants do not contend, therefore, that the Commissioner acted in dual roles, rather the Appellants contest having an administrative body that contains investigatory departments as well as adjudicative departments, which are functions inherent in virtually all administrative bodies.

In a case more on point, the United States Supreme Court, addressing whether the Wisconsin Medical Examining Board could temporarily suspend a doctor’s license at its contested hearing on charges stemming from its own investigation without violating procedural due process, noted that it is a difficult burden to contend that “the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication.” Withrow, 421 U.S. at 46-47, 95 S.Ct. at 1464 (emphasis added). Addressing a previous decision, the Court noted that the “fact that the Commission had entertained such views as the result of its prior ex parte investigations did not necessarily mean the minds of its members were irrevocably closed on the subject.” Id. at 48, 95 S.Ct. at 1465 (internal quotation omitted).

The Appellants have failed to show that the Commissioner was biased. “Bias and prejudice must flow from an extra-judicial source to be disqualifying.” D.F. v. C.D., 108 S.W.3d 669, 678 (Mo.App. W.D.2002). “It requires a substantial showing of bias to disqualify the officer holding the hearing in an administrative proceeding.” Welty v. State Bd. of Chiropractic Exam’rs, 759 S.W.2d 295, 299 (Mo.App. W.D.1988). In this case, the Commissioner was acting pursuant to, and in compliance with, statutory requirements. We presume the Commissioner acted with honesty and integrity. The Appellants did not present, nor have they directed us to, any evidence from extra-judicial sources demonstrating or even suggesting any bias or prejudgment on the part of the Commissioner. Accordingly, we find the Commissioner acted properly when he denied the Appellant’s motion for disqualification. Point denied.

For the Appellants’ second point, they contend that the Commissioner erred in finding the statements on FSI’s website were fraudulent and deceitful because that finding was not supported by substantial and competent evidence. Section 409.5-502(a) states:

It is unlawful for a person that advises others for compensation, either directly or indirectly or through publications or writings, as to the value of securities or the advisability of investing in, purchasing, or selling securities or that, for compensation and as part of a regular business, issues or promulgates analyses or reports relating to securities: (1) To employ a device, scheme, or artifice to defraud another person; or (2) To engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon another person.

The Commissioner found that Grimes was responsible for the content of the FSI’s website which stated that “Financial Solutions & Associates, Inc. is a fee-only financial planning firm ... compensated solely by fees paid by their clients and does not accept commissions or compensation from any other source.” During that same time, the Commissioner found that Grimes received commissions from various insurance companies for sales of equity-indexed annuities. The Commissioner also found that Grimes received commissions of over $150,000 from Barrington Capital Management, Inc. (Barrington), with whom Grimes was formally engaged as a solicitor from January 14, 2004, through November 2006. The Commissioner concluded that “[m]aintaining a publicly available website claiming to earn no commissions, nor any compensation from sources other than clients, while in fact earning commissions, and compensation from sources other than clients, is a course of business that would deceive another person, primarily potential clients and Missouri investors.”

Grimes contends that the alleged fraudulent statements contained on the FSI website are equally consistent with honesty and good faith and they are insufficient to constitute substantial and competent evidence. Once again, the Appellants failed to raise this issue in their petition for judicial review. The Appellants asserted, in their petition, that there was no competent and substantial evidence of the following: (1) the Appellants transacted business as unregistered investment advisors with respect to June Antolik; (2) the Appellants held themselves out as investment advisors by distributing written material concerning their investment philosophy; (3) the Appellants held themselves out as investment advisors by maintaining a website describing their investment philosophy; and (4) FSI employed an unregistered investment advisor. The Appellants did not contest the Commissioner’s finding and conclusion that the statements on FSI’s website were fraudulent and deceitful.

Nonetheless, even if the Appellants’ arguments had been properly presented and preserved for appeal, we would affirm. When we review an agency’s action to determine whether it is supported by substantial and competent evidence, we look to the whole record and not just the evidence that supports the decision. Morgan v. City of St. Louis, 154 S.W.3d 6, 8 (Mo.App. E.D.2004). Here, there was substantial and competent evidence to support the Commissioner’s finding.

At the time of the investigation, Grimes was acting as a solicitor for Barrington and had his own business, FSI. Grimes was licensed to sell life insurance, variable contracts, accident, and health insurance coverage. Barrington was a federally covered investment adviser. Between March 31, 2005, and June 30, 2006, Grimes received over $150,000 in compensation from Barrington. FSI’s website, maintained by Grimes, contained a section called “Fee-Only Planner.” That section clearly stated:

• “[FSI] is a fee-only planning firm committed to assisting client[s] to reach their financial goals. Fee only planners, like us, are compensated solely by fees paid by their clients and do not accept commissions or compensation from any other source.”
• “The main difference between a Stockbroker and us is that they make a living by charging their clients commissions.”
• “We do not earn any money from commissions, trailers, or markups.”

At the hearing before the Commissioner, Janet Ellingson, an account manager for LiveOffice, who Grimes used to build and house his website, testified that when Grimes gave the information for his initial questionnaire, he stated that he was a fee-only investment advisor. Grimes testified that it was his responsibility, knowing what licenses they had, to build the site and select the proper pages that would equal the services they were licensed to offer. Grimes also admitted that he was a solicitor for Barrington at the same time he maintained his website and would receive 60% of the management fee that Barrington received when they managed the clients Grimes brought to them.

After a review of the record on appeal, particularly the evidence presented regarding the website and the commissions the Appellants received at the same time the website proclaimed they were “fee-only,” we conclude the Commission’s finding is supported by competent and substantial evidence.

Moreover, to the extent Grimes contends that the Commissioner erred in finding the statements constitute fraud or deceit under § 409.5-502(a), that argument also fails. When we review an agency's application of law to fact, our review is de novo. Warner v. Wurm, 254 S.W.3d 148, 150 (Mo.App. E.D.2008). Nonetheless, “[i]t is recognized in Missouri, as well as generally, that the primary purpose of legislation similar to that of the Missouri Uniform Securities Act is that of protecting the buyers of securities.” Garbo v. Hilleary Franchise Sys., Inc., 479 S.W.2d 491, 499 (Mo.App. E.D.1972) (internal quotation and asterisks omitted). To fulfill that purpose, we “embod[y] a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.” Id. (internal quotation omitted). As noted supra, under § 409.5-502(a):

It is unlawful for a person that advises others for compensation, either directly or indirectly or through publications or writings, as to the value of securities or the advisability of investing in, purchasing, or selling securities or that, for compensation and as part of a regular business, issues or promulgates analyses or reports relating to securities: (1) To employ a device, scheme, or artifice to defraud another person; or (2) To engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon another person.

The Appellants contend that fraud and deceit under the Missouri Securities Act require the making of a false or misleading statement of material fact, or the failure to disclose a material fact necessary to avoid making another statement not misleading. They contend that the statements from FSI’s website do not meet this definition. Fraud and deceit are not defined in the Missouri Securities Act. However, the terms “[f]raud,” “deceit,” and “defraud” are not limited to “common law deceit.” § 409.1-102(9).

When interpreting the meaning of words used in the Missouri Securities Act, we look to other states’ interpretations of their securities law as well as federal interpretations. Moses, 186 S.W.3d at 904 (“Missouri courts have often looked to cases decided by courts from other jurisdictions to aid in comprehending the definitional limitations of the Act, particularly when the language of the federal and state securities statutes involved is nearly identical.”); State v. Dumke, 901 S.W.2d 100, 102 (Mo.App. W.D.1995) (“[W]hen construing uniform acts, it must be remembered that the fundamental purpose of a uniform law is to eliminate uncertainty and provide plain and certain the controlling rules of law. It is fitting, therefore, to turn to our sister jurisdictions and examine their solutions to the problem.” (Internal citation and quotation omitted)).

Similar to federal securities legislation, Missouri securities legislation makes it unlawful for persons to engage in practices or a course of business that “operates or would operate as fraud or deceit.” § 409.5-502(a)(emphasis added); cf. 17 C.F.R. § 240.10b-5(c). This language “quite plainly focuses upon the effect of particular conduct on members of the investing public, rather than upon the culpability of the person responsible.” Aaron v. Sec. & Exch. Comm’n, 446 U.S. 680, 697, 100 S.Ct. 1945, 1955, 64 L.Ed.2d 611 (1980). This same approach has been followed in other states, as these states have also relied on the Aaron decision. See, e.g., Secretary of State v. Tretiak, 117 Nev. 299, 22 P.3d 1134, 1141 (2001).

Moreover, when a definition is not present in the statute, “the plain and ordinary meaning is derived from the dictionary.” Cox v. Dir. of Revenue, 98 S.W.3d 548, 550 (Mo. banc 2008). “Fraud” is defined as “[a] knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” Black’s Law Dictionary 731 (9th ed.2009). “Deceit” is defined as “[t]he act of intentionally giving a false impression.” Id. at 465. It is also defined as “[a] false statement of fact made by a person knowingly or recklessly with the intent that someone else will act upon it.” Id. The evidence presented in the record on appeal demonstrates that the FSI website’s language meets these definitions.

The Commissioner did not err in determining that Grimes’s statements on the FSI website constituted fraud or deceit under the Missouri Securities Act. The Commissioner’s decision is in line with other state and federal decisions and meets the definitions given to these terms. We attempt to construe the Missouri Securities Act in a manner that is consistent with the Commissioner’s interpretation, Moses, 186 S.W.3d at 899, and we do not find that the Commissioner’s interpretation was unreasonable or arbitrary. Point denied.

The Commissioner’s decision finding that Appellants engaged in an act, practice, or course of business that operated as fraud or deceit upon persons under § 409.5-502(a) is affirmed.

All concur.

      . The Commissioner's Final Order also found that the Appellants unlawfully transacted business as an investment adviser without the proper registration, unlawfully transacted business as an investment adviser representative without the proper registration, and unlawfully employed an unregistered investment adviser representative. The Appellants do not appeal from these findings or conclusions.

      . After oral arguments and submission of this case, the Appellants filed a suggestion of bankruptcy, indicating that Grimes filed for bankruptcy in Case No. 10-45867 in U.S. Bankruptcy Court, Eastern District of Missouri on May 26, 2010. Generally, under 11 U.S.C. § 362(a)(1), Grimes's filing operates as a slay to the continuation of a judicial proceeding against Grimes. One exception to this automatic stay provision, however, states that the filing of a bankruptcy petition does not operate as a stay of the continuation of an action or proceeding by a governmental unit to enforce such governmental unit's or organization’s police or regulatory power. 11 U.S.C. § 362(b)(4). The Federal Court of Appeals for the Eighth Circuit has interpreted 11 U.C.S. § 362(b)(4) to permit “the government to seek the entry of a money judgment as its sole remedy for the violation of a fraud or other police or regulatory law." United States v. Commonwealth Companies, Inc., 913 F.2d 518, 522 (8th Cir.1990). "[Wjhere a governmental unit is suing a debtor to prevent or stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damages for violation of such a law, the action or proceeding is not stayed under the automatic stay.” Id. (quoting from the Senate and House Committee Reports on the Bankruptcy Reform Act of 1978). Accordingly, the automatic stay provisions of the bankruptcy code are inapplicable to this proceeding.

      . The Appellants alleged the Commissioner was biased because the Assistant Commissioner, who works directly under the supervision of the Commissioner, filed the petition and conducted the investigation against the Appellants.

      . On a petition for judicial review, § 536.140 authorizes the circuit court to hear the case “upon the petition and record filed.” § 536.140. "Appellate review of the Commission's decision is also limited to preserved errors only as defined in the petition for review before the circuit court.” Chipperfield v. Mo. Air Conseivation Comm’n, 229 S.W.3d 226, 234 (Mo.App. S.D.2007).

      . As part of his speech, the Chairman made the following statements:
      "Your problems are many, and many of them are the problems of the Federal Trade Commission, too; for the Commission is con-, cerned with promoting fair competition. More particularly, many of your problems are ours because they arise from practices prohibited by two of the most important statutes administrated by the Commission — discriminatory pricing ... and methods of competition. ...”
      "We at the Commission are well aware of the practices which plague you and we have challenged their legality in many important cases.”
      "You know the practices — price fixing, price discrimination, and overriding commissions on [tires, batteries, and accessories].”
      "You know the companies — Atlantic, Texas, Pure, Shell, Sun, Standard of Indiana, American, Goodyear, Goodrich, and Firestone.” "Some of these cases are still pending before the Commission; some have been decided by the Commission and are in the courts on appeal. You may be sure that the Commission will continue and, to the extent that increased funds and efficiency permit, will increase its efforts to promote fair competition in your industry.” Id.

        . All statutory citations are to RSMo Cum. Supp.2003, unless otherwise indicated.


source: Caselaw Access Project

author: KAREN KING MITCHELL, Judge.

license: Public Domain

text:
    Alan LEAKE, Deceased; Linda Leake, Respondent, v. CITY OF FULTON, Appellant.
    No. WD 71821.
    Missouri Court of Appeals, Western District.
    July 27, 2010.
    Rehearing Denied Aug. 31, 2010.

      Clare R. Behrle, St. Louis, MO, for Respondent.
    Susan M. Turner and C. Travis Har-grove, Jefferson City, MO, for Appellant.
    Before Division II: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

The City of Fulton (“Fulton”) appeals from a final order of the Labor and Industrial Relations Commission (“Commission”) awarding benefits to Linda Leake (“Widow”), the widow of decedent Alan Leake (“Leake”). We affirm the order of the Commission.

Procedural and Factual Background

Leake was a captain with the Fulton fire department and had been with the department for twenty years. On April 30, 2006, Leake was called to the scene of a three-car automobile accident. While no one in the accident was badly injured, one of the automobiles involved had to be removed from the roadway, and Leake and two others pushed the vehicle to the side of the road. During the time that Leake was assisting at the scene of the accident, the light rain that had been falling became very heavy, and hail started to fall. The rain was so heavy that it ran into the raincoat of police officer Mark Moses, who was also assisting with the accident, and it shorted out his radio. Shortly after the vehicle had been removed from the roadway, Officer Moses and Leake were dispatched to a more serious accident nearby.

The second accident was a single truck that had skidded off of a highway, gone over a guardrail, and tumbled to the bottom of a steep embankment. The driver of the truck had been ejected on the way down the embankment and had come to rest in an algae-covered concrete drainage ditch, right next to his truck. By this time the rain had ended and the sun had come out, making the air hot and humid.

Leake scrambled down the steep embankment through shin-deep thick wet grass to get to the ejected driver. Leake, Officer Moses, and others began performing CPR on the man, with Leake using the rescue breathing bag. The rescue efforts were especially difficult because of the large size of the driver, the fact that the driver’s airway and the breathing device were obstructed with the man’s vomit, the fact that the driver was wedged against his vehicle, the wet and slippery condition of the concrete drainage ditch, and the hot, humid weather. The rescuers worked frantically for some time until the ejected driver was able to be put on a backboard. Then Leake and the other rescuers carried the man up the other side of the embankment to a waiting ambulance. This side of the embankment was less steep, but longer in distance. The trip up the embankment was difficult, and Leake slipped once on the way. When the man had been placed into the ambulance, Leake returned to the bottom of the culvert to retrieve his tools and then climbed back up the steep side of the embankment to get back to his vehicle.

When Leake reached the road, he climbed back over the guardrail and asked for some alcohol to clean his hands. Then, suddenly, he said that he felt dizzy, the color left his face, and he collapsed. Officer Moses believed that Leake was possibly having a heat stroke because of the weather, their exertion, and the fact that Leake was wearing his firefighting gear, which consisted of large rubber boots, heavy insulated pants, a heavy insulated coat, a shirt, and a helmet. The other rescuers on the scene removed Leake’s firefighting gear and began trying to resuscitate him. Although he briefly began breathing again, the attempts to save his life were ultimately unsuccessful, and Leake died at the scene.

Widow applied to the Division of Workers’ Compensation for death benefits following Leake’s death. At the hearing, Widow testified that Leake had not been diagnosed with or treated for any heart disease before his death. Widow also testified that Leake had been able to perform his job without any difficulties and that he had been fairly active outside of his employment, doing work around the house and boating.

Leake’s medical records were also admitted into evidence and showed that Leake had not been diagnosed with or treated for heart disease. They indicated that Leake had been recommended to follow a healthy diet and to stop smoking, but he had not been placed on any medications for cholesterol reduction or blood pressure control.

Officer Moses testified at the hearing. He relayed the events as set forth above and offered that in his twelve years as a police officer, the April 30, 2006 vehicle rescue that he and Leake worked was the most physically demanding and emotionally challenging that he had ever experienced. Moses also testified that, as a member of the SWAT team and a former bicycle patrol officer, he had been in good physical shape but that he had never before felt fatigue at the level he experienced following the April 30 rescues. Moses left the Fulton police force shortly after Leake’s death and now works as a fraud investigator for the Division of Workers’ Compensation.

Dr. Jerry Kennett, an expert for Fulton, reviewed Leake’s medical records and his autopsy report and concluded that Leake’s death was primarily caused by his underlying cardiovascular disease. Dr. Kennett opined that while the work Leake was doing on the day of his death may have been a contributing factor, it was not the major factor that led to his death. Dr. Kennett testified that Leake had a thickened heart muscle with blockage in the three main coronary arteries and that Leake had suffered a prior heart attack, although Leake was apparently not aware of the prior heart attack.

Dr. Stephen Schuman, Widow’s expert, also reviewed Leake’s medical records and his autopsy report, as well as the statements of Leake’s co-workers, and concluded that, although not in optimal health, Leake was medically stable during the time leading up to his death because he had been able to go about his business and work activities without any symptoms. Dr. Schuman opined that Leake would have been able to continue his activity level had it not been for the events of April 30, 2006. Dr. Schuman opined that there were significant, unusual physical exertions on the day in question, emotional stress associated with responding to a severe car accident, and hot and humid weather in which the body cannot dissipate heat, and that all of those factors combined to increase demand on the cardiovascular system for enhanced cardiac output. Dr. Schuman explained that the heart muscle requires more blood flow to sustain the extra work, and if there is any restriction of blood flow because of coronary artery blockage, that blood flow cannot increase to the level that the demand increases, causing a supply-demand imbalance. This creates an electrical instability, which in turn causes a serious arrhythmia, or irregular beating, the most severe type of rhythm abnormality. It was Dr. Schu-man’s opinion that this electrical instability was the cause of Leake’s death. Dr. Schu-man concluded that if the demand had not been there, in the form of the physical exertion, emotional stress, and environmental factors, the electrical event would not have occurred and, thus, that Mr. Leake’s work was the prevailing factor causing his death.

Both experts seemed to agree that Leake’s death was not caused by a heart attack but was the result of an episode of ventricular fibrillation — the rhythm abnormality. Both experts also agreed that both Leake’s underlying, although previously undetected, cardiovascular condition and the conditions of Leake’s work combined to cause the cardiac episode leading to Leake’s death. The experts just disagreed about which factor was the prevailing cause.

The Administrative Law Judge (“ALJ”) denied benefits, finding that the events and conditions of Leake’s employment on April 30, 2006, were not the “prevailing factor” causing Leake’s death, but that Leake’s death was primarily attributable to his underlying heart disease. Widow filed a timely application for review with the Commission, and the Commission overturned the decision of the ALJ and awarded Widow benefits. City now appeals to this court.

Standard of Review

We review the Commission’s order pursuant to article V, section 18 of the Missouri Constitution, to determine whether the Commission’s award is “supported by competent and substantial evidence upon the whole record.” See also § 287.495.1 RSMo 2000. An award is supported by competent and substantial evidence so long as it is not “contrary to the overwhelming weight of the evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003).

Legal Analysis

Fulton appeals the order of the Commission, claiming that the Commission’s award of benefits was not supported by competent and substantial evidence and was against the overwhelming weight of the evidence because there was evidence that, absent Leake’s pre-existing coronary artery disease, he would not have died on April 30, 2006.

The Commission’s order notes, at the outset, that because Leake’s fatal injury occurred on April 30, 2006, it falls under the purview of the 2005 amendments to the Missouri Workers’ Compensation Law. For an award of benefits to be appropriate, the 2005 amendments require that the workplace “accident” was the “prevailing factor” or primary factor in causing the injury and the disability (in this case, the ventricular fibrillation that caused Leake’s death). § 287.020.3(1). In other words, Leake’s death must not have “come from a hazard or risk unrelated to the employment to which [Leake] would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.” § 287.020.3(2)(b). Specifically, “cardiovascular ... disease ... suffered by a worker is an injury only if the accident is the prevailing factor in causing the [death].” § 287.020.3(4).

Prior to the 2005 changes in the Workers’ Compensation Law, an employee’s work only had to be a “substantial factor” and not the “prevailing factor.” § 287.020.3(2)(a). The 2005 changes also required the Commission and the courts to construe the law “strictly” rather than liberally in favor of coverage the way it had been before the revisions. § 287.800. Therefore, the employee’s burden in establishing that his injury is compensable is now higher than it was before the changes in the law. In briefing to this court, Fulton urges that we find Leake’s underlying health conditions prevent a finding that any employment-related accident could possibly have been the prevailing factor causing his death. Similarly, at oral argument, Fulton initially suggested that preexisting cardiovascular disease that contributed to a workplace injury or death would always be the prevailing factor. Thus the existence of cardiovascular disease would bar recovery under section 287.020. We disagree. That underlying cardiovascular disease does not always preclude recovery is inherent in section 287.020.3(4)’s recognition that a “cardiovascular disease” can constitute an “injury,” “if the accident is the prevailing factor in causing the resulting medical condition.” Where, as here, both a pre-existing cardiovascular condition and a work-related activity contribute to cause an employee’s injury or death, the question is which of the contributing factors was “the primary factor, in relation to [the] other factor, causing ... the resulting” injury or death. § 287.020.3(1). The determination of whether a particular accident is the “prevailing factor” causing an employee’s condition (in this case, death) is inherently a factual one (a proposition with which Fulton’s counsel agreed at oral argument). We see no reason not to defer to the Commission’s factual finding in this case. See Endicott v. Display Techs., 77 S.W.3d 612, 615 (Mo. banc 2002).

Two different expert opinions served as evidence in Leake’s case. Both experts testified that Leake’s pre-existing, although previously unknown, cardiovascular condition combined with circumstances surrounding his job duties on April 30, 2006, to cause Leake’s death. Leake’s expert, Dr. Schuman, testified, by deposition, that the events and conditions of the rescues on April 30, 2006, taken together, was the prevailing factor leading to Leake’s death. Fulton’s expert, Dr. Kennett, testified that Leake’s pre-existing cardiovascular disease was the prevailing factor in Leake’s death. The Commission fully considered both expert opinions, along with the evidence supporting them, and concluded that Dr. Schuman’s opinion was more credible and better supported. Fulton has not established that the Commission’s conclusion was against the overwhelming weight of the evidence, and therefore, even under the more stringent standards, it is supported by competent and substantial evidence on the record as a whole.

First, as Dr. Schuman pointed out, Leake had never even been diagnosed with any cardiovascular disease. He had never presented with any symptoms of his condition. In fact, Leake had apparently suffered a heart attack at some time in the past without ever having realized it. Leake had not been treated for high blood pressure or high cholesterol. Although Leake’s physician had advised him to quit smoking and follow a healthy diet, the advice was no different than that which any physician would offer to a moderately overweight patient who smoked and did not appear to be in response to any particular complaints that Leake was presenting at the time.

Moreover, both Officer Moses and Widow testified that Leake had been able to perform all of the duties that his job required without problems or difficulty prior to April 30, 2006. Moses had stated that he had witnessed Leake carry heavy hoses and perform physically demanding labor in the past. Widow testified that Leake was active outside of work doing things around the house and boating.

Finally, the testimony established that the April 30 rescues were not typical of the conditions Leake faced in the course of his employment. Moses, who often worked on rescues with Leake, testified that, in the twelve years that he had been on the police force, the April 30, 2006 rescue was the most physically demanding and emotionally challenging that he had experienced.

All of the above evidence would support Dr. Schuman’s conclusion, accepted by the Commission, that he could “[absolutely” say, to a reasonable degree of medical certainty, that Leake would not have had the cardiac event if he had not been exposed to the extraordinary physical and mental stress related to performing his work duties on April 30, 2006. Even Dr. Kennett’s analogy of Leake’s heart condition being like a rusty bridge that finally gives under a great weight supports the conclusion that, absent the weight, the bridge would continue to stand, or that, absent the demanding April 30 situation, Leake’s heart would have continued to function. Fulton’s counsel acknowledged at argument that Dr. Kennett’s testimony would itself support a finding that the events of April 30 were a “substantial” factor in causing Leake’s death; he merely disagreed that the environmental factors were the “prevailing” cause. Even if a contrary result could have been reached by the Commission, we are unable to say, based upon our review of the entire record, that the Commission’s order was not supported by competent and substantial evidence. Therefore, we affirm the award of the Commission.

JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA, Judge, concur.

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

      . Later during argument, counsel for Fulton acknowledged that, where more than one factor contributed to a workplace death or injury, the phrase ''prevailing factor” would require a comparison of contributing factors to determine which was the "prevailing” or "primary" factor that caused the injury or death.

      . Recognizing that the "prevailing factor” determination is a factual question is consistent with the interpretation of the "substantial factor” criterion of prior law. See, e.g., Van Winkle v. Lewellen's Prof'l Cleaning, Inc., 258 S.W.3d 889, 898 (Mo.App. W.D.2008) (citing Royal v. Advantica Rest. Group, Inc., 194 S.W.3d 371, 376 (Mo.App. W.D.2006)).


author: GARY D. WITT, Judge.

text:
    James RISSLER and Jimmy J. Thomas, Appellants, v. Justin HEINZLER and Lance Neff, Respondents.
    No. WD 71316.
    Missouri Court of Appeals, Western District.
    July 27, 2010.

      Scott C. Hamilton, Lexington, MO, for appellants.
    Donald G. Stouffer, Marshall, MO, for respondents.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

James Rissler (Rissler) and Jimmy Thomas (Thomas) appeal the judgment of the trial court, which did not award damages to them even though the court found that defendant Justin Heinzler (Heinzler) breached the contract in question as it pertained to a sale of cattle jointly owned by Heinzler, Rissler, and Lance Neff (Neff). We affirm.

Factual Background

Rissler entered into a contract with Heinzler and Neff on July 11, 2003, regarding the ownership of 508 cows. Pursuant to the contract, the cattle were divided into two equal shares, fifty/fifty. The first share belonged to Heinzler and Neff, and the second share belonged solely to Rissler. To purchase their share, Heinzler and Neff collectively paid Rissler $90,000 pursuant to the contract.

The contract expressly provided that “[n]o cattle shall be sold or moved without the 3 partners agreeing and being present at the time of moving the cattle” and that “[t]he parties must give each other 24[sic] notice of the moving by phone or presence.”

Between July 11-25, 2003, Heinzler became aware of suspicious activity by Ris-sler, including the buying and selling of cattle. On or about July 26, 2003, Hein-zler removed 162 cows (25% of the total cows) from the farm where they were kept and sold them at auction for $69,685.27. Heinzler provided no notice to either Ris-sler or Neff prior to selling these cows, and after deducting the debt owed by Ris-sler for the purchase of the cattle, he kept the remaining proceeds from the sale for himself.

Shortly thereafter, with no notice to the other parties, Rissler sold the remaining 75% of the cattle and kept 100% of the proceeds of this sale for himself. He provided no evidence of the amount of money he received from this sale. Rissler testi-fled that he made no profit at all from this sale.

On December 31, 2007, Rissler filed the instant “Petition On Contract And Petition For Conversion” in Saline County Circuit Court. On March 25, 2009, this matter was tried to the bench, with both Rissler and Heinzler presenting evidence to support their respective theories of the case.

On March 25, 2009, the trial court issued its judgment, wherein it found that “Hein-zler breached said contract on or about July 25, 2003 by removing and selling 162 head of cattle without notifying or receiving permission from the other parties to the contract.” As it pertained to Neff, the trial court found that “Rissler failed to prove that Defendant Neff breached the contract.”

Notwithstanding this breach of contract by Heinzler, the trial court found that Rissler “failed to prove the damages [he] allegefs] [he has] suffered” because he “did not provide the Court with evidence of the amount of money he was paid for the cattle he received nor did he provide evidence of the loan he paid off from his sale of the cattle he received.”

Rissler now appeals.

Standard of Review

This court reviews a bench-tried case under the standard established by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). W. Extralite Co. v. Safeco Ins. Co., 301 S.W.3d 527, 530 (Mo.App. W.D.2009). “ ‘[T]he trial court’s decision will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it misstates or misapplies the law.’ ” Id. (quoting Furne v. Dir. of Revenue, 238 S.W.3d 177, 179 (Mo.App. W.D.2007)). This court must view the evidence in a light most favorable to the judgment and disregard all contrary evidence and permissible inferences. Id.

Analysis

In his sole Point Relied On, Rissler argues that the “trial court erred in not awarding [him] damages because he proved both a breach of the contract and the damages caused by the breach in that the evidence was sufficient to determine the profit received by the defendant.”

“A breach of contract action includes the following essential elements: (1) the existence and terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the contract; (3) breach of the contract by the defendant; and (4) damages suffered by the plaintiff.” Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. banc 2010).

The only issue on appeal is whether the trial court erred in failing to award damages. The parties do not dispute that Heinzler breached the contract in question. Specifically, there is no dispute that Hein-zler breached the contract by removing and selling 162 head of cattle without notifying or receiving permission from the other parties to the contract as required by the contract.

However, the trial court found that Rissler failed to prove damages because he did not present evidence of the amount of money he received from the sale of the remaining 75% of the cattle, nor did he provide evidence of the loan he paid off from the sale of the cattle he received.

[A] party claiming damages for breach of contract bears the burden of proving the existence and amount of damages with reasonable certainty. Stated otherwise, proof of actual facts which present a basis for a rational estimate of damages without resorting to speculation is required. Additionally, the cause of the damage claimed must be proven with reasonable certainty.

Delgado v. Mitchell, 55 S.W.3d 508, 512 (Mo.App. S.D.2001) (footnote, internal citations, and quotation marks omitted.) While, Rissler testified that he made no profit at all from this sale, the trial court was free to believe or disbelieve this testimony. Cent. Am. Health Scis. Univ., Belize Med. Coll. v. Norouzian, 236 S.W.3d 69, 77 (Mo.App. W.D.2007).

On appeal, Rissler fails to demonstrate that the trial court erred in concluding that he did not prove the existence of actual damages resulting from Heinzler’s breach of contract. Specifically, it is undisputed that pursuant to the contract Ris-sler was entitled to only 50% of the cattle, yet after Heinzler breached the contract Rissler received the remaining 75% of the cattle and Defendant Neff received none. To date, Heinzler’s breach of the contract actually resulted in a windfall for Rissler, because he apparently retained a 25% greater share in the cattle than he was entitled to under the contract.

Rissler has failed to demonstrate that the trial court’s conclusion, that he did not sustain actual damages, was somehow against the weight of the evidence. For example, Rissler argues that because “he did not make any profit from the sale of the remaining cattle,” this somehow demonstrated that he was damaged. From Rissler’s own testimony it is apparent that the reason he did not “get any money whatsoever” from selling 75% of the livestock is not because he failed to sell the cattle for a profit, but rather because he personally owed money to a third party bank and was forced to use the proceeds from that sale to pay off that lender. Ultimately, the fact that Rissler owed money to a third party was irrelevant to the instant dispute over the contract and cannot be a basis for relief on appeal.

In light of the fact that the contract provided that the partners were to share in the profit for the sale of all the cattle, Rissler argues that he is entitled to his 50% share of the $69,685.27 that Heinzler received for the sale of the first 25% of the cattle. However, the trial court did not find that Heinzler breached the contract by failing to properly account for the profit on the sale. The trial court only found that Heinzler breached the contract by failing to give the required notice of the sale. The “damages” Rissler claims do not necessarily flow from Heinzler’s breach. Even presuming the question of the division of the profit was before the trail court, to determine whether Rissler failed to get the benefit of the bargain he struck in the contract and therefore was damaged, the operative question is whether Rissler obtained “one half the money” as it pertained to the sale of all the cattle. But, as the trial court noted, Rissler failed to adduce any evidence as to how much he received from the sale of the other 75% of the cattle. Rissler has failed to demonstrate how Heinzler’s breach of the contract (i.e. failure to provide the contractual notice of a sale) deprived him of the benefit of the bargain because, for example, Rissler may have sold his share of the cattle at a far greater price per head than Heinzler. It certainly strains the bounds of credibility that Heinzler could have made a profit of almost $70,000 for the sale of 25% of the cattle but Rissler could have no profit whatsoever on the sale of the remaining 75% a few weeks later.

Rissler insinuates on appeal that Heinzler’s breach of the contract caused him to sustain damages because he lost anticipated profits from the cattle, but Ris-sler failed to put forth sufficient evidence to support such a theory at trial. “The general rule as to recovery of anticipated profits of a commercial business is that they are too uncertain and dependent upon changing circumstances to warrant a judgment for their recovery.” Brown v. McIbs, Inc., 722 S.W.2d 337, 341 (Mo.App. E.D.1986). “The rule is well settled in this state that damages for the loss of anticipated profits resulting from actionable conduct of another ‘are recoverable only when they are made reasonably certain by proof of actual facts which present data for a rational estimate of such profits.’ ” Id. at 340-41 (quoting Yaffle v. Am. Fixture Inc., 345 S.W.2d 195, 199 (Mo.1961)). In addition, because the contract could be terminated at any time by any partner who wished to have the cattle sold, the potential for anticipated profits from the sale of cattle yet to be born is too speculative to support a claim for future damages. Therefore, we reject the notion that the trial court somehow erred in refusing to award Rissler damages under an anticipated profits claim.

Heinzler admits that he breached the contract, which in some cases may give rise to an award of nominal damages, even if the party against whom the breach occurred fails to establish specific damages. Evans v. Werle, 31 S.W.3d 489, 493 (Mo.App. W.D.2000). However, in this case, where the evidence establishes that the non-breaching party may have profited as a result of the breach, an award of nominal damages is inappropriate.

Accordingly, Rissler’s point is denied.

Conclusion

The judgment of the circuit court is hereby affirmed.

All concur.

      . The facts are stated in the light most favorable to the judgment. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

      . Thomas was a named plaintiff in this lawsuit for whatever reason, notwithstanding the fact that he was not a party to this contract. Accordingly, for ease of analysis, we will refer to the plaintiffs as simply “Rissler."

      . For whatever reason, Neff did not participate in the litigation and is not an active party to this appeal.


author: VICTOR C. HOWARD, Judge.

text:
    In the Interest of: T.W.C. and D.K.C.; F.W.M., Appellant, v. CHILDREN’S DIVISION OF THE DIVISION OF SOCIAL SERVICES, Respondent, Juvenile Officer, Respondent.
    Nos. WD 71740, WD 71741.
    Missouri Court of Appeals, Western District.
    Aug. 3, 2010.

      Kirk S. Zwink, for Appellant.
    Gary L. Gardner, for Respondent Missouri Children’s Division
    Jill Creed, for Respondent Juvenile Officer.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   VICTOR C. HOWARD, Judge.

F.M. appeals from the judgments of the trial court terminating his parental rights to his children, D.K.C. and T.W.C., pursuant to sections 211.447.5(3) — failure to rectify — and 211.447.5(6) — unfit parent. He claims that the judgments were not supported by clear, cogent, and convincing evidence. The judgments are affirmed.

Facts

The appellant, F.M. (Father), is the natural father of D.K.C. and T.W.C., both born on April 30, 2004. A.L. (Mother), the natural mother of the children, consented to the termination of her parental rights.

At the time of the hearing on the petitions for termination of parental rights, Father was thirty-six years old and had been continuously incarcerated since he was eighteen years old, except for a thirteen month period during which time the children were conceived and born. Father was originally incarcerated on convictions of three counts of class A felony first-degree robbery, three counts of felony armed criminal action, and class C felony second-degree burglary. He was released from prison in August 2003 and met Mother a month later. In September 2004, when the children were four months old, Father was again incarcerated after being convicted of class C felony endangering the welfare of a child.

In November 2005, when the children were eighteen months old, they were taken into protective custody and placed in foster care. The children have remained in the same foster home in Higbee, Missouri, since November 2005.

Father has had no physical contact with the children since they were four months old. He maintained regular contact with the children by sending drawings, letters, and gifts. When the children were four years old, the children’s division arranged telephone contact between Father and the children. The juvenile office sent Father notice of all court proceedings and copies of all judgments involving the children, and an attorney was appointed to him and represented him at all of the court hearings except one. Father also regularly participated in family support team meetings by telephone where written service agreements were provided for Mother with a goal toward reunification of the children with her. Reunification with Father was never a goal in the ease because of his incarceration and lack of bond between him and the children.

At the hearing on the petitions for termination of parental rights, the trial court heard the testimony of the juvenile officer, a licensed clinical social worker who met with the children to determine what bonds they had with Father and with their foster parents, the previous and current case managers, the court-appointed special advocate, and Father. The trial court entered its judgment terminating Father’s parental rights based on two grounds— failure to rectify, section 211.447.5(3), and unfit parent, section 211.447.5(6). This appeal by Father followed.

Standard of Review

In terminating parental rights, the trial court must find by clear, cogent, and convincing evidence that one or more grounds for termination exists under subsections 2, 4, or 5 of section 211.447 and that termination is in the best interests of the child. § 211.447.7. In the Interest of P.L.O., 131 S.W.3d 782, 788 (Mo. banc 2004); In the Interest of I.Q.S., 200 S.W.3d 599, 603 (Mo.App. W.D.2006). The appellate court reviews whether statutory grounds for termination have been proven by clear, cogent, and convincing evidence under the standard set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). P.L.O., 131 S.W.3d at 788-89. “Thus, the trial court’s judgment will be affirmed unless it is not supported by substantial evi dence, it is against the weight of the evidence, or it erroneously declares or applies the law.” I.Q.S., 200 S.W.3d at 603. The appellate court reviews the question of whether termination is in the best interests of the child under the abuse of discretion standard. P.L.O., 131 S.W.3d at 789; I.Q.S., 200 S.W.3d at 603. “In all of these determinations, the appellate court is deferential to the trial court’s findings of fact and considers all of the evidence and reasonable inferences from the evidence in the light most favorable to the judgment.” I.Q.S., 200 S.W.3d at 603.

Unfit Parent

Although the trial court terminated Father’s parental rights under two statutory grounds for termination, satisfaction of only one ground is sufficient to sustain the judgment. Id. at 604. Thus, although Father raises several points on appeal regarding the evidence to support each ground, this opinion only addresses the trial court’s finding that termination of Father’s parental rights was appropriate under section 211.447.5(6) — unfit parent. Section 211.447.5(6) provides, in pertinent part, that termination is appropriate when:

The parent is unfit to be a party to the parent and child relationship because of a consistent pattern of committing a specific abuse ... or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the child.

Thirty-six year old Father has been incarcerated all but thirteen months since he was eighteen years old. He was originally incarcerated on seven felony convictions. During the thirteen month period that he was not incarcei'ated, the children were conceived and born. When the children were four months old, Father returned to prison upon conviction for endangering the welfare of a child for providing alcohol to minors under the age of fourteen who were babysitting his children. While incarceration alone shall not be grounds for termination of parental rights, section 211.447.7(6), it does not discharge a parent’s obligation to provide the child with a continuing relationship through communication and visitation. I.Q.S., 200 S.W.3d at 604. Father has not had any physical contact with the children since they were four months old. Father acknowledged at the hearing that he never requested visitation with the children because he did not want them to see him in prison. At the time of the hearing, the children were five years old and closely bonded with their foster parents, with whom they have lived since being taken into protective custody when they were eighteen months old. Although Father attempted to create a relationship with the children through drawings, letters, gifts, and telephone conversations, his efforts did nothing to foster a bond between him and the children. According to the case manager and the licensed clinical social worker, the children are not even sure who Father is. When speaking to him on the telephone, they often thought they were speaking to their foster father. Father acknowledged that by his own actions, he has been unavailable to be a parent to the children since they were four months old.

Furthermore, the social worker testified that while visitation and counseling could be offered to Father and the children upon Father’s release from incarceration with a goal to developing a relationship, such process could take “years.” She explained that the first four years of life are critical for attachment and that separating the children from their foster parents, whom they consider their parents, and attempting to create a bond with Father would be damaging to the children and could negatively affect them for the rest of their lives.

Father’s absence from the children and the lack of a bond between him and the children render Father unable, for the reasonable future, to care appropriately for the children’s ongoing physical, mental, or emotional needs. See, e.g., In the Interest of C.W., 64 S.W.3d 321, 325 (Mo.App. W.D.2001)(mother’s unfitness was of sufficient duration or nature to render her unable to care for children’s ongoing needs where children had no emotional ties to mother, one child feared living with mother, mother had failed to protect children from father’s abuse, mother’s repeated incarcerations had deleterious effect on emotional bond with children, and prospects for reunification were poor and would take several years). The trial court’s determination that Father was unfit to be a party to the parent and child relationship was supported by clear, cogent, and convincing evidence.

Best Interests of the Child

Likewise, the trial court did not abuse its discretion in finding that termination of Father’s parental rights is in the best interests of the children. As noted above, Father has been incarcerated and has not had any physical contact with the children since they were four months old. And although Father maintained regular contact with the children by sending drawings, letters, and gifts and by telephone when they got older, no bond exists between Father and the children, and the children are not even sure who he is. The children have been in the same foster home since they were eighteen months old. They are closely bonded with their foster parents and consider them to be their mother and father. Finally, even though Father was due to be released on parole within two months of the hearing, additional services such as counseling would not enable the children to be returned to him within an ascertainable period of time.

The judgments of the trial court are affirmed.

All concur.

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

      . The trial court also found dial termination of Father's parental rights was appropriate under section 211.447.2(1), in that the children had been in foster care for at least fifteen of the most recent twenty-two months. Section 211.447.2(1) is not, however, a separate ground for termination of parental rights "but rather solely ... a trigger for filing a termination petition.” In the Interest of M.D.R., 124 S.W.3d 469, 476 (Mo. banc 2004).


author: ROY L. RICHTER, Chief Judge.

text:
    Chrystal JONES, Claimant/Appellant, v. WIRELESS VISION, LLC, and Division of Employment Security, Respondents.
    No. ED 94962.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 3, 2010.
    Chrystal Jones, Florissant, MO, Pro Se.
    Michael Pritchett, Jefferson City, MO, for Respondent.
   ROY L. RICHTER, Chief Judge.

Chrystal Jones (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision denying her 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. Claimant appealed to the Appeals Tribunal, which reversed the deputy’s conclusion. Claimant’s employer then filed an application for review with the Commission, which issued an order reversing the Appeals Tribunal’s decision and concluding Claimant was ineligible for benefits. Claimant has now 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 not 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 April 21, 2010. Therefore, the notice of appeal to this Court was due on or before May 21, 2010. Sections 288.200.2, 288.210.

Claimant mailed her 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 May 29, 2010. As a result, Claimant’s notice of appeal is untimely under section 288.200.

Unemployment benefits are solely a creature of statutory provision. Martinez v. Lea-Ed, Inc., 155 S.W.3d 809, 810 (Mo. App. E.D.2005). 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).

The Division’s motion to dismiss is granted. The appeal is dismissed.

KURT S. ODENWALD, J., and GARY M. GAERTNER, JR., J., concur.


author: CYNTHIA L. MARTIN, Judge.

text:
    POINTE DEVELOPMENT, LLC, Respondent, v. ENTERPRISE BANK AND TRUST, Appellant.
    No. WD 71591.
    Missouri Court of Appeals, Western District.
    Aug. 10, 2010.

      Michael S. Cessna and Leonard B. Rose, Kansas City, MO, for appellant.
    Steven W. White, Independence, MO, for respondent.
    Before Division One: JAMES M. SMART, JR., Presiding Judge, MARK PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Enterprise Bank and Trust (“Enterprise”) appeals from the trial court’s judgment in favor of Pointe Development, LLC (“Pointe”) in the amount of $51,469.92. Enterprise claims that the trial court erred in granting judgment to Pointe on its claim for breach of contract because Enterprise’s loan commitment included a condition subsequent that the cost of construction could not exceed the loan amount which was not satisfied by Pointe, relieving Enterprise of the obligation to provide the loan. We affirm.

Factual and Procedural History

Pointe was formed to develop unimproved property in Raymore, Missouri. The site was to be improved by the construction of seventy-four townhome units (“Project”). In August 2005, Pointe, through its managing member Steve Walker, approached Northstar Bank (“North-star”) to obtain a site development loan and a construction loan for the Project. The site development loan was to be used to construct roads, sewers, curbs, and other similar improvements to the land. The construction loan was to be used to construct fourteen townhome units.

On August 4, 2005, Northstar’s loan committee approved Pointe’s request for funding. On August 12, 2005, Northstar issued a written loan commitment agreeing to extend Pointe a site development loan in the amount $875,000 and a construction loan in the amount of $1,105,400. The single page commitment, titled “Credit Approval Request,” was delivered by facsimile to Pointe on August 15, 2005. The commitment reflected that both loans were to be secured by a deed of trust on the Project and by Walker’s personal guaranty. The commitment noted with respect to the construction loan that the “LTV would be the lesser of 100% of cost or 85% of APV.” “LTV” means loan to value. “APV” means appraised value.

In April 2006, Pointe requested that Northstar approve a $125,000 increase in the site development loan. Northstar approved this request, thus increasing the site development loan to a total of $1,000,000. The written loan commitment (i.e. the August 12, 2005 “Credit Approval Request”) was not revised to reflect this modification, though other records received in evidence indicate the revised site development loan in the amount of $1,000,000 was fully funded by Northstar.

Sometime prior to July 2006, Walker told Charles VanZante, the Northstar employee who signed the loan commitment, that the cost of construction of the town-homes would exceed $1,105,400, the amount of the construction loan. Walker did not ask Northstar to increase the amount of the construction loan, however.

In July 2006, Enterprise acquired Northstar and assumed Northstar’s obligations to Pointe pursuant to the commitment. Sometime during and after July 2006, Walker similarly advised loan officers at Enterprise that the cost of construction of the townhomes was expected to exceed the construction loan amount. In July, August, or September of 2006, Walker provided Enterprise with documentation that indicated that the cost of construction of the townhomes was expected to increase from $1,105,400 to $1,340,308. Walker did not ask Enterprise to increase the construction loan.

Walker testified that he had the funds available to cover the cost to construct the townhomes over and above the amount of the construction loan. Walker testified that he told Enterprise he would be able to cover any shortfall between the construction loan amount and the cost of construction of the townhomes.

Walker sought to close on the construction loan with Enterprise in or around August 2006. Enterprise attempted to impose additional requirements on Pointe as a condition of closing, which Walker refused to perform. Enterprise refused to close on the construction loan.

Pointe sought and secured construction loan financing from an alternative source and used the proceeds of the new financing to pay off the development loan owed to Enterprise. Because Enterprise would not close on the construction loan when Pointe requested, and because Pointe was required to secure a construction loan from an alternative source, Pointe claimed it was damaged in the amount of $51,469.92.

Pointe filed suit against Enterprise for breach of contract. The case was tried to the court on September 3, 2008. On August 26, 2009, the Honorable W. Stephen Nixon entered Judgment in favor of Pointe in the amount of $51,469.02. The trial court noted that it had heard testimony and made credibility determinations consistent with its Judgment. The trial court found that Enterprise breached its agreement to fund the construction loan component of the loan commitment by failing to close the loan as requested by Pointe in August of 2006. Specifically, the trial court found that while there may have been discussions between Walker and Enterprise’s loan officers regarding an increase in the cost of construction of the townhomes, there was no meeting of the minds between the parties to seek approval for an increase in the construction loan amount. The trial court found that Pointe never asked Enterprise to increase or modify, in any respect, the construction loan promised by the loan commitment. The trial court found that the original construction loan component of the loan commitment remained in full force and effect and was never withdrawn or revoked by Enterprise.

Enterprise appeals.

Standard of Review

“In a court tried case, the ‘judgment of the trial court will be sustained by the-appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.’” Mo. Pub. Serv. Comm’n v. Hurricane Deck Holding Co., 302 S.W.3d 786, 789 (Mo.App. W.D. 2010) (quoting Murphy v. Canon, 536 S.W.2d 30, 32 (Mo. banc 1976)).

Analysis

In its sole point on appeal, Enterprise claims that the trial court erred in granting judgment to Pointe on its claim for breach of contract. Enterprise concedes its commitment formed a contract with Pointe. The essence of Enterprise’s argument on appeal is that it was relieved of its obligation to perform the contract because the loan commitment included a condition subsequent that the cost of construction would not exceed the $1,105,400 construction loan — a condition Pointe did not satisfy, thus relieving Enterprise of its obligation to fund the construction loan. We disagree.

“A condition subsequent is a condition ‘which by its express terms provides for an ipso facto cancellation on the happening or non-occurrence of a stipulated event or condition.” Reed Stenhouse, Inc. of Mo. v. Portnoy, 642 S.W.2d 947, 952-53 (Mo.App. E.D.1982) (quoting Berger v. McBride & Son Builders, 447 S.W.2d 18, 19 (Mo.App.1969)). See also Boatmen’s Bank of Mid-Mo. v. Crossroads W. Shop ping Ctr., Ltd., 907 S.W.2d 800 (Mo.App. W.D.1995). “ ‘[C]onditions subsequent are not favored in law, and are construed strictly.... When relied on to work a forfeiture, they must be created in express terms or by clear implication.’ ” Duncan v. Acad, of Sisters of the Sacred Heart of St. Joseph, Mo., 850 S.W.2d 814, 818-19 (Mo. banc 1961) (quoting Holekamp Lumber Co. v. State Highway Comm’n, 173 S.W.2d 938, 942 (Mo.1943)). “Words of limitation normally associated with the creation of a condition subsequent include the following: ‘upon condition that’; ‘upon express condition that’; ‘provided that’; ‘but if; ‘if it happens that’ or a phrase of like import.” DeHart v. Ritenowr Consol. Sch. Dist., 663 S.W.2d 332, 333 (Mo.App. E.D. 1983) (citing CORNELIUS J. MOYNIHAN, INTRODUCTION TO THE LAW OF REAL PROPERTY, 99 (1962); RESTATEMENT (FIRST) OF PROP, section 45 cmt. j (1936)).

Enterprise failed to identify in its initial brief any provision of the loan commitment which Enterprise believed warranted the “implication” of a condition subsequent. This notable omission was highlighted by Pointe in its brief, prompting Enterprise, in its reply brief, to point to the following language in the loan commitment as the alleged condition subsequent: “LTV would be the lesser of 100% of cost or 85% of APV.”

We conclude that this provision of the loan commitment is not a condition subsequent, whether express or implied. The provision obviously includes no words of limitation typically associated with express conditions subsequent. Nor does the provision expressly or clearly articulate that the occurrence or nonoccurrence of an event will terminate Enterprise’s duty to fund the construction loan. Cf. Deutsch v. Boatmen’s Nat’l Bank of St. Louis, N.A., 991 S.W.2d 206 (Mo.App. E.D.1999) (contingent sale contract contained express language that sale is contingent and if condition is not satisfied that the contract is null and void); Hall v. W.L. Brady Invs., Inc., 684 S.W.2d 379 (Mo.App. W.D. 1984) (contingent real estate construction loan commitment expressly provided for conditions for several installments of the loan, the initial installment conditioned on the satisfactory completion of improvements).

Moreover, even if the proffered provision could be construed to imply a condition subsequent, there was no evidence to suggest the condition was not satisfied by Pointe. The provision required that the $1,105,400 agreed amount of the construction loan could not exceed the lesser of 100% of the cost of construction or 85% of the appraised value. At the time Enterprise refused to fund the construction loan, the cost of construction of the townhome units had increased to $1,340,308. Thus, the agreed amount of the construction loan ($1,105,400) did not exceed 100% of the cost of construction ($1,340,308). There was no evidence, however, of what the appraised value of the townhome units would be once constructed. Thus, Enterprise presented no evidence suggesting whether the agreed amount of the construction loan exceeded 85% of the appraised value, and more to the point, no evidence of which of the two “prongs” of its alleged condition subsequent (100% of the cost of construction or 85% of the appraised value) would, when compared to the agreed construction loan amount, produce the “lesser” number. We conclude that that this provision in the loan commitment is not a condition subsequent, and was more likely intended to prevent Enterprise from being obligated to provide “cash out” to Pointe should Pointe’s cost of construction end up being less that the agreed construction loan amount. Whatever the provision means, one thing is clear. The provision never states that the cost of construction of the townhomes cannot exceed the agreed construction loan amount — a fundamental premise underlying Enterprise’s argument, but a “condition” notably unstated in the loan commitment.

At oral argument, Enterprise conceded that the loan commitment does not provide in clear or express terms that Enterprise’s obligation to fund the construction loan is conditioned on Pointe being able to build the townhomes for the amount of the loan. Enterprise thus abandoned discussion of the aforementioned provision in the loan commitment. Instead, Enterprise argued a new theory— that a condition subsequent can be implied from the circumstances. Enterprise alleged that because the trial court found in its judgment that both Pointe and Enterprise understood that the construction loan was to be “fully secured,” the unexpected increase in the cost to construct the town-homes in excess of the amount of the construction loan required the trial court to conclude, as a matter of law, that Enterprise was relieved of its obligation to close on the loan.

Enterprise offers no support for its contention that a condition subsequent can be implied from the circumstances. In any event, Enterprise’s argument that because the parties expected the loan to be fully secured a condition subsequent must be implied is simply without merit. A lender is “fully secured” when the outstanding balance due on a loan is exceeded by the value of the collateral which secures the loan. Here, there was no evidence (nor any common sense reason to conclude) that an increase in the cost to construct the townhomes would result in the town-homes having a value (once constructed) that was less than the amount of the construction loan.

Implicit in Enterprise’s newly asserted argument is that had it funded the construction loan, and had Pointe failed to come up with the additional funds to cover the difference between the construction loan and the increased cost of construction, then Enterprise would have been left with an incomplete project whose value might not reach the level of the construction loan, leaving Enterprise “under” secured. The difficulty with this argument is that the trial court heard testimony from Walker that he told Enterprise that he had the funds available to cover the cost to construct the townhomes over and above the construction loan amount. Enterprise offered no contrary evidence, and the trial court was free to believe Walker’s testimony. Thus, the notion that the trial court committed legal error by finding on the one hand an agreement between the parties that Enterprise would be “fully secured” while concluding on the other hand that Enterprise breached the loan commitment by not funding the construction loan is without merit.

We understand the dilemma Enterprise faced. A bank may not desire to fund a secured loan to construct property unless it can assure a satisfactory ratio between the amount of its loan and the value of the property once constructed. Moreover, a bank may not desire to fund a loan to construct property unless it knows all of the funds necessary to complete construction of the property are available. However, the loan commitment in this case failed to address these concerns and failed to incorporate provisions which would clearly condition Enterprise’s obligation to fund the construction loan accordingly.

The trial court’s Judgment concluding that Enterprise’s refusal to fund the construction loan was a breach of contract is supported by substantial evidence, is not against the weight of the evidence, does not erroneously declare the law, and does not erroneously apply the law. Enterprise’s point is denied.

Conclusion

We affirm the trial court’s judgment.

All concur.

      . We view the facts in the light most favorable to the trial court's judgment. Estate of Thompson v. Hicks, 148 S.W.3d 32, 35 (Mo.App. W.D.2004).

      . The record suggests that the only material fact in contest at trial was whether Walker asked Northstar or its successor, Enterprise, to increase the amount of the construction loan to cover the additional costs of construction of the townhomes. The trial court found no such request was made.

      . A condition subsequent is distinguishable from a condition precedent. A condition precedent must be shown to have been performed as a precursor to establishing that a contract exists, while a condition subsequent presumes a valid contract, the performance of which is excused by the occurrence or nonoccurrence of the condition. St. Louis Police Relief Ass'n v. Am. Bonding Co. of Baltimore, 197 Mo.App. 430, 196 S.W. 1148, 1152 (1917). The Restatement and other commentators have since abandoned use of the term "condition subsequent,” replacing it with the concept of an event that terminates a duty. Howard v. Youngman, 81 S.W.3d 101, 110 n. 2 (Mo.App. E.D.2002) (citing RESTATEMENT (SECOND) CONTRACTS sections 224, 230). Regardless, the concept of termination of a duty still presumes an existing contract.

      . Property law treatises provide relevant discussion of the law of conditions subsequent as such conditions are often placed in deeds of conveyance to impose conditions with respect to the future use of property as a condition of retaining title.