author: CYNTHIA L. MARTIN, Judge.

text:
    Brian L. BROWDER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71438.
    Missouri Court of Appeals, Western District.
    Aug. 3, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 28, 2010.
    Application for Transfer Denied Dec. 21, 2010.
    Ellen H. Flottman, Columbia, MO, for appellant.
    Shaun J. Mackelprang and Jamie P. Rasmussen, Jefferson City, MO, for respondent.
    Before Division One: JAMES M. SMART, JR., Presiding Judge, MARK PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Brian Browder (“Browder”) appeals from the trial court’s judgment denying his Rule 24.035 motion for post-conviction relief. Browder contends his conviction for the class C felony of making a terrorist threat, section 574.115, should be vacated because his guilty plea was not supported by an adequate factual basis. We affirm.

Factual and Procedural Background

Browder was charged with the Class C felony, making a terrorist threat, section 574.115. Specifically, Browder was charged with communicating a threat to cause an incident or condition involving danger to life with the purpose of frightening ten or more people. Section 574.115.1(1). His charge arose out of an incident in October 2006 where Browder contacted the Marshall Satellite School and threatened to “kick someone’s ass.” Browder was offered probation in exchange for a guilty plea.

On November 13, 2006, Browder pled guilty to the charge. The trial court accepted his guilty plea and sentenced Brow-der to seven years, with execution of the sentence suspended for a five year probationary period.

On September 26, 2007, a motion to revoke Browder’s probation was filed. Browder admitted to violating the terms of his probation by committing two counts of stealing. Browder’s probation was revoked, and the seven year sentence on the guilty plea was imposed.

Browder timely filed a pro se motion for post-conviction relief under Rule 24.035, which was thereafter amended. In the amended motion, Browder claimed there was no factual basis for his guilty plea. Specifically, Browder contended he was never asked about any facts regarding his purpose to frighten ten or more people, or about any facts supporting that he threatened to cause an incident involving danger to life.

The motion court conducted a hearing on Browder’s amended motion. Other than the transcript of the guilty plea hearing conducted before the trial court, no other evidence was presented. The motion court took judicial notice of the file in the underlying criminal case. Browder’s counsel asked him to pay particular attention to the information and complaint, and the probable cause affidavit.

The motion court entered its judgment on July 13, 2009, finding as a matter of law that the factual basis was sufficient to support Browder’s guilty plea and thus his conviction. Browder’s Rule 24.035 motion was, therefore, denied. This appeal follows.

Standard of Review

Review of the denial of a post-conviction relief motion is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Peiffer v. State, 88 S.W.3d 439, 445 (Mo. banc 2002). “The court’s findings of fact and conclusions of law are clearly erroneous only if, after a review of the entire record, the appellate court definitely believes that a mistake was made.” Bucklew v. State, 38 S.W.3d 395, 397 (Mo. banc 2001).

Analysis

Rule 24.02(e) provides that “[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.” The intent of the rule is to help to insure that a guilty plea is knowing and voluntary. Carmons v. State, 26 S.W.3d 382, 384 (Mo.App. W.D.2000). A defendant’s plea is supported by an adequate factual basis if it is “voluntarily and understandably made and unequivocal as to the factual requisites necessary to establish each element of an offense.” State v. Shafer, 969 S.W.2d 719, 734 (Mo. banc 1998). “Where the information clearly charges the defendant with all the elements of the crime, the nature of the charge is explained to the defendant, and the defendant admits guilt, a factual basis is established.” Johnson v. State, 115 S.W.3d 422, 424 (Mo.App.2003) (citing Ivy v. State, 81 S.W.3d 199, 202 (Mo.App.2002)).

During Browder’s guilty plea hearing, the following exchange occurred:

THE COURT: You are represented her today by Ms. Wasson?
BROWDER: Yes, sir.
THE COURT: Have you had plenty of time to discuss this case with her?
BROWDER: Yes, sir.
THE COURT: Have you told her all the facts and circumstances surrounding your case?
BROWDER: Yes, sir.
THE COURT: Has she explained the charges to you and gone over the evidence with you?
BROWDER: Yes, sir.
THE COURT: Are you telling me today you understand your rights, you want to waive those rights and you want to bring this matter to conclusion today because you are in fact guilty of the Class C felony of making a terrorist threat?
BROWDER: Yes, I am.
THE COURT: And you’re guilty of that offense because between the dates of October 2nd, 2006, and October 4th, 2006, in the County of Saline, State of Missouri, you communicated a threat to cause an incident or condition involving danger to life for the purpose of frightening ten or more people by making a threat to come to the Marshall Satellite School and someone was getting their ass kicked by stating, you know me, if you don’t take care of it I’ll take care of it. When advised not to make threats you stated, I’m not, I’m just telling you what I’m going to do.
BROWDER: Yes, sir.
THE COURT: Is that what took place?
BROWDER: Yes, sir.

Following this colloquy, the motion court concluded that “[b]ased on the record, the Court finds a factual basis for the plea.”

Where the trial court reads the information to a defendant, where the information contains all of the required elements of the crime charged, and where the nature of the charge has been explained to the defendant, the defendant’s subsequent guilty plea will satisfy the requirements of Rule 24.02(e). Rios v. State, 848 S.W.2d 638, 640 (Mo.App. S.D.1993). It is not imperative that the trial court explain every element of the crime charged to the defendant at the plea hearing, as long as the trial court can otherwise surmise that the defendant understands the nature of the charge. Harris v. State, 204 S.W.3d 371, 375 (Mo.App. S.D.2007). Often, the defendant’s understanding of the nature of the charge against him is accomplished by the defendant’s discussion with counsel prior to the hearing. Myers v. State, 223 S.W.3d 165, 168 (Mo.App. S.D.2006).

The elements of the offense of making a terrorist threat pursuant to section 574.115.1(1) are: (a) communicating a threat to cause an incident or condition involving danger to life, (b) with the purpose of frightening ten or more people. Both elements were set forth in the Information which charged Browder. The Information was read by the trial court, essentially verbatim, during the guilty plea hearing. Browder heard the trial court recite the elements of the charge against him, and confirmed he had committed those precise elements. Browder expressly affirmed that he was guilty of the offense of making a terrorist threat by virtue ' of having engaged in conduct that communicated a threat to cause an incident or condition involving danger to life with the purpose of frightening ten or more people. The particulars of the threat made by Browder were then explored by the trial court and confirmed by Browder. Moreover, Browder confirmed that his trial counsel had specifically discussed the charge and evidence against him prior to his appearance for his guilty plea hearing. Based on this record, a factual basis for Browder’s guilty plea was established.

Browder contends that notwithstanding his testimony at the guilty plea hearing, there was an insufficient factual basis for the guilty plea. Specifically, Browder contends that his admission that he “threatened to kick someone’s ass” does not mean that he threatened an incident involving danger to life. Browder also contends that no evidence was developed to establish that he had the purpose of frightening ten or more people. In effect, Browder is arguing that his testimony during the guilty plea hearing, where he expressly affirmed that he communicated a threat involving danger to life for the purpose of frightening ten or more people, was inherently insufficient to establish an adequate factual basis for his plea. In support of this contention, Browder relies on Ennis v. State, 887 S.W.2d 771 (Mo.App. S.D.1994); England v. State, 85 S.W.3d 103 (Mo.App. W.D.2002); and Ross v. State, 48 S.W.3d 667 (Mo.App. W.D.2001). Each of these cases is factually distinguishable from the present case.

In Ennis, the defendant was charged with sodomy under section 566.060, and specifically with having deviate sexual intercourse with his granddaughters. 887 S.W.2d at 772. The defendant waived arraignment and entered a plea of guilty. Id. He testified during the guilty plea hearing that he had sexual intercourse with his granddaughters who were less than fourteen years of age. Id. “Sexual intercourse” is defined as “any penetration, however, slight, of the female sex organ by the male sex organ, whether or not an emission results.” Section 566.010(3). In contrast, “deviate sexual intercourse” is defined as “any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person.” Section 566.010(1). The court found that the requirements of Rule 24.02(e) were not met because the meaning of the term “deviate sexual intercourse” is not “readily apparent in the absence of the statutory definition.” Id. at 775. The defendant’s acknowledgment that he had sexual intercourse with his granddaughters was not sufficient to permit the trial court to discern whether the defendant was knowingly pleading guilty to “deviate sexual intercourse.”

In the present case, the elements of the charge of making a terrorist threat under section 574.115.1(1) include no statutorily defined terms. The applicable criminal jury instruction for the specific charge against Browder, MAI-CR 3d 328.30, requires no definitions. Even if one of the terms or phrases employed in section 574.115.1(1) was statutorily defined, that alone would not have required more than Browder’s acknowledgement that he engaged in conduct satisfying the element, so long as the term or phrase is commonly understand and/or possesses a plain meaning. See Johnson, 115 S.W.3d at 425-27 (though statutory definition of “serious physical injury” was not given during guilty plea hearing, meaning of the phrase is readily apparent, particularly in light of the specific conduct admitted by the defendant).

The phrase “threat involving danger to life” is not statutorily defined. Moreover, we believe, the meaning of the phrase “threat involving danger to life” is readily apparent, such that Browder’s admission that he engaged in conduct involving such a threat, and his specific admission that he “threatened to kick someone’s ass,” are sufficient to establish a factual basis for Browder’s guilty plea. See Hoskin v. State, 863 S.W.2d 637, 639 (Mo.App. E.D.1993)(where allegations in counts charged are “simple, specific and sufficient to inform the defendant in terms that a layman would understand what acts he was charged with committing,” factual basis is established for a guilty plea admitting those allegations).

In England, defendant was charged with first-degree assault pursuant to section 565.050.1 after discharging a gun into a home from the street. 85 S.W.3d at 107. The assault charge was based on an attempt to kill an individual. Id. “[A] conviction for first-degree assault by ‘attempt to kill’ requires proof of ‘a very specific intent on the part of the actor to accomplish that objective.’ ” Id. (quoting State v. Gonzales, 652 S.W.2d 719, 722 (Mo.App. W.D.1983)). At the plea hearing, defendant indicated he understood the charges against him and that he had discussed the charges with his counsel. Id However, when asked whether he knew that people were probably home at 4:00 a.m. in the house, the defendant responded “they probably would be. I wasn’t absolutely 100 percent for sure.” Id at 108. This record did not provide a sufficient factual basis to establish that the defendant had the specific intent to kill when he fired shots into the home. Id. at 109.

Browder claims his case is similar to England. Browder’s contention ignores that Browder expressly admitted his “purpose to frighten ten or more people.” In contrast, the defendant in England never admitted a specific intent to kill anyone and conceded facts that were inherently inconsistent with this specific intent. England offers Browder no assistance.

In Ross, the defendant was charged with having a knife in his possession in a correctional center pursuant to section 217.360.1(4). 48 S.W.3d at 670. A conviction required that the defendant had “knowing” possession of the knife. Id. At the guilty plea hearing, the defendant admitted only that a knife was found in his cell. Id. The defendant did not admit that he knew the knife was there. Id. There was no other evidence developed during the guilty plea hearing to establish the defendant’s exclusive control over his cell. Id. at 671. The court found an insufficient factual basis was established for the guilty plea. Id. As in England, there was no admission by the defendant that he possessed the requisite intent for a conviction, and the actual testimony provided by the defendant was inherently inconsistent with the required intent. As with England, Ross is distinguishable from the present case. The requisite intent required for a conviction in Browder’s case was the intent to engage in prohibited conduct with the purpose to frighten ten or more people. Browder expressly admitted this was his purpose. He thus admitted facts sufficient to form the basis for his guilty plea pursuant to Rule 24.02(e).

Conclusion

The motion court did not clearly err by denying Browder’s Rule 24.035 motion. The trial court’s judgment is affirmed.

All concur.

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

      . Browder was also required to have no contact with school personnel and to write letters of apology to certain individuals and to the Marshall public school system.

      . Browder had also failed to pay the court costs associated with his guilty plea as required and had not followed all of the directions of his probation officer.

      .Apparently, however, the charges for stealing were dropped.

      . The motion court consulted and reviewed this instruction during the hearing on Brow-der’s motion.


source: Caselaw Access Project

author: JAMES EDWARD WELSH, Judge.

license: Public Domain

text:
    LAKE OZARK/OSAGE BEACH JOINT SEWER BOARD, et al., Respondents, v. MISSOURI DEPARTMENT OF NATURAL RESOURCES, Land Reclamation Commission and Magruder Limestone Co., Inc., Appellants.
    No. WD 71299.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Timothy P. Duggan, Jefferson City, Counsel for Appellants, Land Reclamation & Dept, of Natural Resources.
    Michael A. Dallmeyer, Jefferson City, Counsel for Appellant, MaGruder Limestone.
    Steven E. Mauer, Kansas City, MO, Counsel for Respondent, Lake Ozark.
    John T. Polhemus, Kansas City, MO, Co-Counsel for Respondent, Lake Ozark.
    Brian E. McGovern, Chesterfield, MO, Counsel for all remaining Respondents.
    Before LISA WHITE HARDWICK, C.J., JAMES EDWARD WELSH, J., and JAMES W. VAN AMBURG, Sp. J.
   JAMES EDWARD WELSH, Judge.

The Missouri Land Reclamation Commission, under the Missouri Department of Natural Resources (referred to collectively as “the Commission”), approved Magruder Limestone Company’s application for a permit to expand its quarry operations. The Joint Sewer Board for the cities of Lake Ozark and Osage Beach and thirty-two citizens opposed the expansion permit and sought judicial review of the Commission’s decision in the circuit court. The circuit court reversed the Commission’s decision after finding that the Commission placed the burden of proof on the wrong party, improperly relied upon evidence outside the record, and erroneously determined that Magruder’s application was complete when it was originally filed. Ma-gruder and the Commission appeal. We reverse the Commission’s decision and remand the cause for a new hearing.

Magruder operates several quarries under a Land Reclamation permit. On April 23, 2007, Magruder filed an application with the Commission to expand its permit to a new site in Miller County. The new site, referred to as the Bowlin Hollow Quarry, consisted of a tract of 212 acres. Magruder requested that it be permitted to engage in surface mining on 205 of those acres, with the proposed mining area set back fifty feet from the tract’s boundaries.

The Land Reclamation Program’s staff notified Magruder on May 14, 2007, that Magruder’s application for the expansion permit met all statutory requirements and that it considered the application complete. The staff further advised Magruder to provide public notice as required by 10 CSR 40-10.020(2)(H). This regulation says that, when the Director of the Land Reclamation Program (“Director”) deems an application complete, the applicant “shall publish a notice of intent to operate a surface mine in any newspaper qualified ... to publish legal notices in any county where the mine plan is located.” Id. The notice is to run once a week for four consecutive weeks, beginning no later than ten days after the application is deemed complete. Id. Magruder published its notice in The Miller County Autogram-Sen-tinel, a weekly newspaper published in Tuscumbia, the Miller County seat, for four consecutive weeks beginning on May 17, 2007.

On June 15, 2007, the Land Reclamation Program began receiving letters from the public requesting a public meeting regarding Magruder’s application. The letters were from several citizens who resided or owned property or businesses in the area surrounding the proposed quarry site. The citizens expressed concern over the effects of the proposed quarry on their homes, health, and businesses. They, along with the mayors of the cities of Lake Ozark and Osage Beach, also expressed concern that the quarry’s blasting operations could damage the Joint Sewer Board’s waste water treatment plant. The plant is located on land to the north of the proposed Bowlin Hollow Quarry. Additionally, two force main sewer lines, which serve the city of Osage Beach, run through the center of the proposed quarry to the sewer plant.

On June 26, 2007, the Director sent reply letters advising that Magruder had declined to hold an informal public meeting but that recipients had an additional fifteen days to petition for a formal hearing. Thirty-two citizens and the Joint Sewer Board (referred to collectively as “Petitioners”) timely requested a formal hearing.

Pursuant to section 444.773.1, RSMo Cum.Supp.2009, the Director issued his formal recommendation to grant Magruder the expansion permit on July 13, 2007. During the Commission’s September 27, 2007 meeting, the Commission considered and granted Petitioners’ requests for a formal hearing. The Commission subsequently appointed a hearing officer to conduct the hearing.

The formal hearing in this matter was conducted over seven days in March, April, May, and June 2008. Following the hearing, the hearing officer issued a recommended order containing findings of fact and conclusions of law. The hearing officer found that Petitioners failed to prove that their health, safety, or livelihood would be unduly impaired by the impact of Magruder’s proposed quarrying operations in the Bowlin Hollow Quarry. The hearing officer further found that Petitioners failed to prove that, during the five years immediately preceding the date of Magru-der’s permit application, Magruder demonstrated a pattern of noncompliance with environmental law that suggested a reasonable likelihood of future acts of noncompliance. The hearing officer recommended that Magruder’s application for an expansion permit be approved, with special conditions, for the area west of the sewer line easement and denied for the area east of the sewer line easement. The approved mining area was limited to approximately fifty-two acres. The Commission approved the hearing officer’s recommended order and adopted the hearing officer’s findings of fact and conclusions of law as its decision.

Petitioners subsequently filed a petition for judicial review of the Commission’s decision in the circuit court. The circuit court determined that the Commission misapplied the burden of proof during the formal hearing and improperly relied upon unscientific evidence that was outside the record. The court further found that Ma-gruder’s application was incomplete as originally filed. The court, therefore, reversed the Commission’s decision granting the expansion permit and ordered the Commission to hold a new hearing. Ma-gruder and the Commission appeal.

On appeal from the circuit court’s review of an agency’s decision, we review the agency’s actions and not those of the circuit court. Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009). Our review is limited to determining whether the agency’s decision was constitutional; was within the agency’s statutory authority and jurisdiction; was supported by competent and substantial evidence upon the whole record; was authorized by law; was made upon lawful procedure with a fair trial; was not arbitrary, capricious or unreasonable; and was a proper exercise of discretion. Lagud v. Kansas City Bd. of Police Comm’rs, 136 S.W.3d 786, 791 (Mo. banc 2004); § 536.140.2, RSMo Cum.Supp.2009. In reviewing the agency’s decision, we must consider the entire record and not simply the evidence that supports the agency’s decision. Coffer v. Wasson-Hunt, 281 S.W.3d 308, 310 (Mo. banc 2009). “If the evidence permits either of two opposing findings, deference is afforded to the administrative decision.” Id. We do not defer to the agency’s decision on questions of law. Vivona v. Zobrist, 290 S.W.3d 167, 171 (Mo.App.2009).

We will address first Petitioners’ claim in their third point, which is that the Commission’s decision was improper and illegal because Magruder’s application was incomplete as originally filed. Magruder’s original application packet did not include a map showing the utility easements and identifying the easement holders as required by section 444.772.3, RSMo Cum. Supp.2006, and 10 CSR 40-10.020(2)(E)2.A. Despite Magruder’s failing to include this map, the Director deemed Magruder’s application complete on May 14, 2007, and directed Magruder to publish notice of its intent to operate a surface mine. The public had fifteen days from the last date of publication of this notice within which to submit a written request to the Director for a public meeting or hearing on Magruder’s application. 10 CSR 40-10.020(2)(H). Those who had requested a public meeting then had fifteen days after receiving notice that Ma-gruder had declined to hold a public meeting to submit a written request to the Director for a formal hearing. 10 CSR 40-10.080(l)(A). Thirty-two citizens and the Joint Sewer Board sent timely requests to the Director for a formal hearing.

Magruder did not file the map showing the utility easements and identifying the easement holders until the Land Reclamation Program’s staff asked Magruder to do so in February 2008. Petitioners argue that the Director should have required Magruder to republish its notice at that time, which would have given other members of the public the opportunity to join the case by submitting requests to the Director for a formal hearing. Because the Director did not require Magruder to republish its notice once it filed the map showing the utility easements, and the hearing officer refused five potential petitioners’ untimely requests to join the case before Magruder’s application was actually complete, Petitioners argue that the Commission’s order granting the expansion permit was improper and illegal. We disagree.

The publication of notice is triggered not by an application’s actually being complete but by the Director’s deeming the application to be complete. Both section 444.772.10 and 10 CSR 40-10.020(2)(H) specifically provide that, when the permit application “is deemed complete by the director,” the applicant is to publish notice once a week for four consecutive weeks. The statute further reinforces that actual completeness is not required to trigger the publication of notice as it provides that, if the Director fails to respond to a permit application within forty-five calendar days, the application “shall be deemed to be complete.” § 444.772.10. The Director’s failure to act in this circumstance results in the application’s being automatically deemed complete and triggers the publication of notice, presumably regardless of whether the application is actually complete. Thus, contrary to Petitioners’ assertion, the timing of the public notice is not dependent upon the actual completeness of the application, but upon the application’s being deemed complete, either by the Director or automatically.

Even if we assume that Magruder’s application was not complete on May 14, 2007, when the Director deemed it to be, we fail to see how the Director’s deeming the application complete before Magruder filed the map showing the utility easements rendered the subsequent public notice defective. Regulation 10 CSR 40-10.020(2)(H) prescribes the contents of the public notice. The map showing the utility easements is not part of this notice. The information contained on the map is not part of this notice. The public notice is unaffected by the inclusion or exclusion of the map in the application packet.

Petitioners claim that “potential petitioners were denied due process and a chance to be heard based on an incomplete application,” but there is nothing in the record to indicate that the absence of the map in Magruder’s application packet caused the potential petitioners to submit their requests to join the case outside of the original time limit. Furthermore, the Commission denied the potential petitioners’ requests to join the case on other grounds in addition to the fact that their requests were untimely. There has been no challenge to the merits of those other grounds. Thus, the Commission’s decision to deny the potential petitioners’ requests to join would stand regardless of the timeliness of their requests.

The Director’s deeming the application complete before Magruder filed the map showing the utility easements did not invalidate the Commission’s ultimate decision to grant the expansion permit. Regulation 10 CSR 40-10.020(1) says that a permit applicant must submit all of the required information before the Commission can issue a permit. Magruder submitted the missing map before the Commission issued the expansion permit.

Petitioners have failed to demonstrate prejudice from the Director’s deeming the application complete before Magru-der filed the utility easement map. “ ‘[Ojnly prejudicial error is reversible error.’ ” Campbell v. Dir. of Revenue, 297 S.W.3d 656, 659 (Mo.App.2009) (citation omitted). We deny Petitioners’ third point.

We -will next address Petitioners’ allegation of error in them first point. In this point, Petitioners claim that the Commission misapplied the burden of proof because, during the formal hearing, the hearing officer placed the burden of proof on Petitioners rather than on Magruder. The statute governing formal hearings on permit applications is section 444.773. Subsection 3 of this statute provides that where, as in this case, the Director recommends issuing a permit, a formal hearing may be held upon a timely petition from “any person whose health, safety or livelihood will be unduly impaired by the issuance of this permit.” Id. Following the formal hearing, if the Commission finds, “based on competent and substantial scientific evidence on the record, that an interested party’s health, safety or livelihood will be unduly impaired by the issuance of the permit,” then the Commission may deny the permit application. § 444.773.4. The statute further provides that, “[i]n any hearing held pursuant to this section!,] the burden of proof shall be on the applicant for a permit.” Id.

While the statute says only that the burden of proof is on the applicant, the regulation promulgated pursuant to the statute makes clear that the burden of proof is broken down into its two components — the burden of production and the burden of persuasion — and allocates those burdens between the hearing petitioner and the applicant:

The burden of establishing an issue of fact regarding the impact, if any, of the permitted activity on a hearing petitioner’s health, safety or livelihood shall be on that petitioner by competent and substantial scientific evidence on the record. Furthermore, the burden of establishing an issue of fact whether past noncompliance of the applicant is cause for denial of the permit application shall be upon a hearing petitioner and/or the director by competent and substantial scientific evidence on the record. Once such issues of fact have been established, the burden of proof for those issues is upon the applicant for the permit.

10 CSR 40-10.080(3)(B). Pursuant to this regulation, the hearing petitioner has the initial burden of production, that is, the “duty to introduce enough evidence on an issue to have the issue decided by the fact-finder.” Black’s Law Dictionary 223 (9th ed.2009). To meet the burden of production, the petitioner must present “competent and substantial scientific evidence” regarding the impact, if any, of the permitted activity on the petitioner’s health, safety, or livelihood. 10 CSR 40-10.080(3)(B).

If the petitioner produces sufficient scientific evidence of the impact of the permitted activity under this standard, the applicant must then satisfy the burden of persuasion, which is the “duty to convince the fact-finder to view the facts in a way that favors that party.” Black’s, supra at 223. To satisfy the burden of persuasion, the applicant must prove, by competent and substantial scientific evidence, that the petitioner’s health, safety, or livelihood will not be unduly impaired by the impact from the permitted activity. See 10 CSR 40-10.080(3)(B) and (D).

In its order, the Commission did not distinguish between the burdens of production and persuasion and, instead, repeatedly stated that Petitioners bore the burden of proof and that the applicant, Magruder, bore no burden. Specifically, the Commission said:

The first question to be addressed is simply whether the Petitioners presented competent and substantial scientific evidence on the record, that a petitioner’s health, safety or livelihood will be unduly impaired by impacts from quarrying in Bowlin Hollow by the Applicant. Neither [the Director] nor [the] Applicant carries a burden of proof to establish that the permitted activity will not unduly impair a petitioner’s health, safety or livelihood. Unless petitioners are able to carry their burden of proof, the expansion of Permit 0086 is to be approved.
The burden of proof as it relates to the issues raised and the relief sought by Petitioners is on the Petitioners. The general principle is that the burden of proof rests on the party bringing the action, the Petitioners in the present case. In general, the party seeking to establish a claim bears the burden of proof to establish the entitlement to the claim.
The Applicant did not have the burden to prove that the operation of the proposed quarry will not unduly impair the health, safety or livelihood of the petitioners.

The Commission’s statements are contrary to the plain language of section 444.773 and 10 CSR 40-10.080(3)(B). Petitioners bore only the burden of producing sufficient scientific evidence to establish an issue of fact that the permitted quarrying operations would impact their health, safety, or livelihood. As the applicant, Magru-der bore the burden of persuading the Commission to rule in its favor by proving that the impact from the permitted quarrying operations would not unduly impair Petitioners’ health, safety, or livelihood.

Magruder and the Commission argue that the Commission applied the statute and regulation properly because its findings indicate that Petitioners failed to meet their threshold burden of production. The Commission’s findings, however, were made by a fact-finder who, by failing to distinguish between the burden of production and the burden of persuasion, evaluated Petitioners’ evidence under a higher standard — whether or not it proved undue impairment — than the statute and regulation require. Petitioners were entitled to have their evidence judged under the correct standard — whether or not it established an issue of fact — with the burdens of production and persuasion properly allocated pursuant to section 444.773 and 10 CSR 40-10.080(3)03) and (D).

Because the Commission failed to apply the burden of proof in accordance with the statute and regulation, its decision was made upon unlawful procedure. Accordingly, we reverse the Commission’s decision granting Magruder the expansion permit and remand the cause to the Commission for a new hearing.

All concur.

      . Pursuant to Rule 84.05(e), the Joint Sewer Board and the citizens filed the appellants’ brief because they were the parties aggrieved by the Commission's decision, and the Commission, the Department, and Magruder filed the respondents’ brief.

      . The regulations provide that, if the applicant does not agree to a public meeting, a petitioner may request a formal hearing in writing within fifteen days of notification of the applicant's denial of a public meeting. 10 CSR 40-10.080(1)(A).

      . Only twenty-one of the thirty-two citizens proceeded as petitioners in the formal hearing because the hearing officer dismissed eleven pro se petitioners for failing to attend the pre-hearing conference and failing to file witness lists, written direct testimony, and supporting documents as ordered. Following the Commission's decision, the dismissed pro se petitioners joined in the petition for judicial review but did not seek review of their dismissal from the case.

      .The special conditions concerned restricting the days, times, and location of the blasting with regard to the sewer line easement; using seismographs to monitor the sewer plant and sewer lines; and restricting the elevation of the mine floor to run at or above the grade of the sewer line easement.

      . The Commission found that one of the proposed petitioners failed to establish standing for a formal hearing pursuant to 10 CSR 40-10.080(2)(A) and (B); that three of the proposed petitioners failed to request a public meeting, which is a prerequisite to requesting a formal hearing; and that one of the proposed petitioners who had requested a public meeting failed to request a formal hearing.

      . See Kinzenbaw v. Dir. of Revenue, 62 S.W.3d 49, 53-54 (Mo. banc 2001) (noting that, ''[w]hen courts discuss the burden of proof, there are two components: the burden of producing (or going forward with) evidence and the burden of persuasion”).

      . The second sentence of 10 CSR 40-10.080(3)(B) concerns the allocation of the burden of production on the issue of whether an applicant’s past noncompliance indicates likely noncompliance in the future. Although Petitioners argued this as a basis for denying Magruder’s expansion permit application in the formal hearing, they do not raise the Commission's rejection of this ground on appeal.

      . Regulation 10 CSR 40-10.080(3)(D) provides that the Commission may deny the permit if it "finds, based upon competent and substantial scientific evidence on the record, that a hearing petitioner's health, safety or livelihood will be unduly impaired by impacts from activities that the recommended mining permit authorizes.”

      . Before adopting the hearing officer’s recommended order, the Commission questioned him regarding whether the applicant had the burden of proof. According to the minutes of the Commission’s meeting, the hearing officer said that "he’s read the [s]tatute and regulations regarding this issue and he reads that the burden of proof is upon the persons bringing the action. He stated the applicant does not have to prove the negative, this is in case law.” The record indicates that the hearing officer advised the parties early in the proceedings that Magruder bore no burden of proof. In his November 2007 pre-hearing conference order, the hearing officer stated that ”[t]he Applicant has no burden of proof to establish that the permitted activity — operation of a limestone mine site, a quarry — does not impact upon the health, safety or livelihood or any individual or entity.”

      . In their second point, Petitioners seek reversal of the Commission’s decision and a new hearing based upon the Commission’s relying upon unscientific evidence outside the record. Our disposition of Petitioners’ first point renders this point moot.


author: LISA WHITE HARDWICK, Chief Judge.

text:
    TRAVELERS INDEMNITY COMPANY OF AMERICA, Appellant, v. THE WILLIAMS-CARVER COMPANY, Respondent.
    No. WD 71181.
    Missouri Court of Appeals, Western District.
    Sept. 7, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.
    Application for Transfer Denied Dec. 21, 2010.

      Robert W. Cockerham, Esq., and Corey L. Kraushaar, Esq., St. Louis, MO, for appellant.

      Stephen D. Manz, Esq., and Theresa S. Hall, Esq., Kansas City, MO, for respondent.
    Before Division One: LISA WHITE HARDWICK, Presiding Judge, JAMES M. SMART, JR. and ALOK AHUJA, Judges.
   LISA WHITE HARDWICK, Chief Judge.

Travelers Indemnity Company of America (“Travelers”) appeals from a summary judgment ruling that its negligence claim against the Williams-Carver Company (“Williams-Carver”) is barred by the statute of repose in Section 516.097. Travelers contends the circuit court erred in granting summary judgment because there are genuine issues of material fact as to whether the affirmative defense in Section 516.097 is applicable. For reasons explained herein, we affirm the summary judgment.

Factual and Procedural History

Mr. Dell Foods, Inc. (“Mr. Dell”) prepares frozen potato products at its production facility in Kearney, Missouri. In 1987, Mr. Dell hired Dennis Watson Construction (“Watson”) as general contractor for the construction of an addition to the production facility. The proposed addition included an insulated room to be used as a large walk-in freezer.

Watson retained Williams-Carver to plan and construct a refrigeration system for the freezer room. Watson also hired Mid-Continent Industrial Insulation (“Mid-Continent”) to build the enclosure of the room with insulated wall panels. Construction of the addition to the production facility was completed in 1988.

On February 28, 2001, a fire was intentionally set by a Mr. Dell employee in a box room used for storage of packaging and shipping materials. The box room was located adjacent to the freezer room. The two rooms were separated by a concrete block wall, but there was a gap of approximately sixteen to twenty-four inches between the top of the wall and I-beam on the ceiling. The fire damaged the facility and frozen potato products by spreading from the box room, over the top of the concrete wall, into the freezer room, and beyond.

As the insurer for Mr. Dell, Travelers paid in excess of $5,000,000 for the damage from the fire and received an assignment of Mr. Dell’s rights regarding the loss. In August 2005, Travelers filed a petition against Williams-Carver for negligent installation of the freezer. The petition alleged that Williams-Carver should have separated the freezer room from the adjacent area with a floor-to-ceiling firewall. The petition further alleged that Williams-Carver concealed the defective gap in the wall of the freezer room and failed to disclose it to Mr. Dell.

After discovery, Williams-Carver moved for summary judgment based on the Statute of Repose, Section 516.097, which provides a ten-year statute of limitations for actions for damages arising from the design, planning, or construction of any improvement to real property, unless any defect or deficiency in the improvement was concealed and directly resulted in the defective or unsafe condition. The court granted the motion, concluding that Travelers’ claims against Williams-Carver were filed beyond the ten-year statute of limitations and did not fit within the eoneealment exception of Section 516.097.4(2). Travelers appeals the summary judgment.

STANDARD OF REVIEW

The propriety of summary judgment is a question of law subject to our de novo review. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We view the record in the light most favorable to the party against whom judgment was entered and accord that party the benefit of all reasonable inferences. Id.

“The key to summary judgment is the undisputed right to judgment as a matter of law....” Id. at 380. Summary judgment is proper when the movant establishes that there is no genuine dispute as to any material fact. Id. at 378. Once the moving party has established a right to judgment as a matter of law, the non-moving party must show by affidavits, depositions, answers to interrogatories or admissions that one or more of the material facts shown by the movant as above dispute is, in fact, genuinely disputed. Id. at 381. The non-movant must present “specific facts showing that there is a genuine issue for trial.” Id. (quoting Rule 74.04(c)(2))

Analysis

Travelers contends the court erred in granting summary judgment because genuine issues of material fact exist as to whether its negligence claim against Williams-Carver is barred by the statute of repose in Section 516.097. The statute provides in relevant part:

1. Any action to recover damages for economic loss, personal injury, property damage or wrongful death arising out of a defective or unsafe condition of any improvement to real property, including any action for contribution or indemnity for damages sustained on account of the defect or unsafe condition, shall be commenced within ten years of the date on which such improvement is completed.
2. This section shall only apply to actions against any person whose sole connection with the improvement is performing or furnishing, in whole or in part, the design, planning or construction, including architectural, engineering or construction services, of the improvement.
4. This section shall not apply:
(2) If a person conceals any defect or deficiency in the design, planning or construction, including architectural, engineering or construction services, in an improvement for real property, if the defect or deficiency so concealed directly results in the defective or unsafe condition for which the action is brought[.]

§ 516.097.

In Point I on appeal, Travelers argues the statute of repose is inapplicable because: (a) Williams-Carver had more than one connection to the defective refrigeration system, in that it sold, distributed, assembled, and installed the defective system; and (b) William-Carver installed a prefabricated refrigeration system, which did not constitute “performing or furnishing construction ... including construction services” under Section 516.097.

The Missouri Supreme Court has defined the phrase “sole connection with the improvement” in Section 516.097 as “a connection to a defective or unsafe condition of an improvement or real estate giving rise to liability.” Magee v. Blue Ridge Prof'l Bldg. Co., 821 S.W.2d 839, 843 (Mo. banc 1991). Missouri applies an “activity analysis” to determine whether a defendant’s activity is solely connected with the design, planning and construction of the improvement. Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822, 887 (Mo.banc 1991). “[I]f a defendant has any connection that gives rise to liability with respect to an improvement other than by design, planning, or construction, Section 516.097 is not available as an affirmative defense.” Lay v. P & G Health Care, Inc., 37 S.W.3d 310, 321 (Mo.App.2000). The defendant’s sole connection to the defective or unsafe improvement to real property must be as an architect, engineer, or builder. Id.

Travelers cites Lay in arguing that Williams-Carver had more than one connection to the defective refrigeration system. In Lay, our court determined that a defendant elevator company served a dual role by selling and installing a defective dumbwaiter that fell down the shaft and injured the repairman working on it. 37 S.W.3d at 322. The defendant had purchased the dumbwaiter from a manufacturer, sold it to the facility owner, and installed it on-site. Id. Because the defendant had more than one relationship with the defective dumbwaiter — as both seller and installer — we found the “sole connection” requirement of Section 516.097 was not met, and the ten-year statute of repose did not apply. Id.

As compared to Lay, Travelers asserts that Williams-Carver sold, distributed, assembled, and installed a prefabricated refrigeration system. We note, however, the undisputed evidence shows that Williams-Carver obtained all of the component parts from various vendors and then constructed the refrigeration system on site. Accordingly, there are important distinctions between this case and the facts in Lay. Williams-Carver did not sell and install a prefabricated product; rather it configured and manufactured a refrigeration system by purchasing, assembling, and installing the component parts into the freezer room addition of Mr. Dell’s production facility.

A manufacturer that fabricates or assembles building materials or component parts incorporated within the real property in the construction of an improvement is “performing or furnishing ... construction services” under Section 516.097.2. Blaske, 821 S.W.2d at 837. The statute does not protect a manufacturer whose standard product is fabricated at the manufacturer’s factory, made available to the general public, and then “furnished for the inclusion in the improvement by the persons constructing the improvement under circumstances where the manufacturer has no substantial on-site construction activity.” Id. To invoke the affirmative defense, a manufacturer must have “substantial participation at the construction site in significant activities in installing or incorporating the product into the real property.” Id.

In support of its motion for summary judgment, Williams-Carter presented deposition testimony and affidavits to establish that it planned the refrigeration system, obtained the component parts, and built the system inside the walls of the freezer room. An architect provided Williams-Carver with certain criteria including the square footage of the area to be cooled, the basic size of the freezer room, and the approximate temperature requirements. The architect also supplied the thickness and specifications of the freezer room walls to be constructed by Mid Continent, so the heat load coming into the freezer room could be determined and taken into account in planning and configuring the equipment for the refrigeration system. Local weather conditions, personnel traffic in and out of the area, type and location of lighting, and door locations were also factors considered by Williams-Carver.

Taking this information into account, Williams-Carver calculated the freezer room’s refrigeration load (in tons of refrigeration) and decided on the type of system and equipment required to maintain the room at a temperature below freezing. Layout and shop drawings were created to identify the location of the piping, mechanical devices, and electrical equipment within the confines of the building. Williams-Carver then selected and purchased the following equipment and supplies necessary to fabricate the refrigeration system: compressors, oil separators, starters, elements, gauges, switches, valves, freezer coils, condensers, condenser tanks, solenoid flanges and thermostats, beams, miscellaneous hardware, pitch pans, thread rod, elbows, pipe and miscellaneous fittings, time relays, electric boxes, drain hangers, insulation material, bronze fittings, and wood hangers.

At the job site, twenty-one foot lengths of steel pipe and fittings were laid out, cut-to-size, and welded by Williams-Carver. Per its plans, Williams-Carver built the system to include various valves and controls. Piping was placed on roof stands and welded together by Williams-Carver using various valves and fittings. Williams-Carver customized control stations for the air units by cutting them to size and connecting them by welds.

Unlike the dumbwaiter in Lay, the refrigeration system here was not a pre-designed, mass-produced refrigerator that was purchased, re-sold to Mr. Dell, and merely installed by Williams-Carver. It was a system configured and fully constructed by Williams-Carver on-site as an improvement to Mr. Dell’s production facility. Williams-Carver’s sole connection with the improvement was as the builder of the refrigeration system. The work done by Williams-Carver falls within the test for the manufacture of a specialized system that required substantial on-site construction as discussed in Blaske.

Travelers argues the circuit court improperly weighed conflicting statements made by Richard Carver, of the Williams-Carver Company, in granting summary judgment. We disagree that Mr. Carver made statements in his affidavit that contradicted his earlier deposition testimony about whether the refrigeration system was prefabricated.

During his deposition on September 8, 2006, Mr. Carver agreed with Travelers’s counsel that Williams-Carver purchased “pre-fabbed” parts that “work[ed] as a whole system together to cool the freezer.” Two years later, Mr. Carver stated in his affidavit:

Based on the refrigeration load, Williams-Carver decided on the type of system required to refrigerate the room. Various options as to the system’s configuration and layout were considered by Williams-Carver. Williams-Carver determined the equipment and parts that it needed to purchase from various manufacturers and suppliers in order to construct the refrigeration system.

The earlier deposition testimony established that the “pre-fabbed” parts Mr. Carver referred to included evaporators, coolers, pumps, coils, condensers, and the water pump. Contrary to Travelers’ suggestion on appeal, Mr. Carver did not testify that Williams-Carver purchased a prefabricated refrigeration system. He clearly testified that Williams-Carver purchased a wide variety of prefabricated component parts that it used to construct “a whole system ... to cool the freezer.” This testimony was not inconsistent with his later statement in the affidavit that “Williams-Carver determined the equipment and parts that it needed to purchase from various manufacturers and suppliers in order to construct the refrigeration system.” Accordingly, the testimony and statements of Mr. Carver did not create a genuine issue of fact as to whether Williams-Carver configured and constructed a refrigeration system at Mr. Dell’s production facility.

Travelers’s damages lawsuit against Williams-Carver was filed more than ten years after the improvements to Mr. Dell’s production facility were completed in 1988. Williams-Carter properly invoked the affirmative defense of the ten-year statute of repose in Section 516.097 by presenting uncontroverted evidence that its sole connection with the improvements was to perform or furnish construction services. Accordingly, Williams-Carter was entitled to summary judgment unless the concealment exception in Section 516-097.4(2) is applicable. Point I is denied.

In Point II, Travelers argues that Williams-Carter is not entitled to protection under Section 516.097 based on the concealment exception. Travelers contends there is a genuine issue of material fact as to whether Williams-Carver “had superior knowledge of the defective condition consisting of a highly flammable freezer wall next to the gap above the adjacent firewall, and concealed this information from Mr. Dell Foods.”

Pursuant to Section 516.097.4(2), the ten-year statute of repose does not apply “[i]f a person conceals any defect or deficiency in the design, planning or construction ... in an improvement for real property,” and the concealed defect or deficiency “directly results in the defective or unsafe condition for which the action is brought.” As used in the statute, the term “conceals” means “an affirmative act, something actually done directly intended to prevent discovery or to thwart investigation.” Magee, 821 S.W.2d at 844; see also Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 19-20 (Mo.banc 1995).

Travelers asserts that Williams-Carver was aware of the gap above the firewall because Mr. Carter “advised” the general contractor, Dennis Watson, to allow for the gap or a man-way to service the walk-in freezer. Travelers argues the gap was a defective condition, that it was concealed by the wall covering, and that the defective condition directly resulted in the spread of the fire that damaged Mr. Dell’s production facility and products.

We disagree that a genuine factual dispute exists with regard to whether Williams-Carver concealed a defective condition. First, we find no evidence indicating that Williams-Carver “advised” Dennis Watson, the general contractor, to allow for a gap above the wall. The only evidence remotely addressing this subject is an April 5, 1988 letter from Mr. Carver to the architect, Herman Scharhag, providing the following update on the progress of the construction project at Mr. Dell:

Herman, I also talked with Mr. [Dell] Johnson about running the freezer headers on top of the building roof instead of on the freezer roof. This was suggested to allow for ease of maintenance (otherwise some sort of man way should be installed).
Your cost for running pipe on the roof (excluding sealing of roof penetrations)_$1,815.00[.]

This letter in no way suggests that Williams-Carver “advised” Mr. Watson to take any action. Mr. Carver contacted the architect to resolve a potential maintenance issue and provide a cost estimate for placing the pipes on the roof. The suggested “man way” simply indicates the need for access to the pipes, but it does not infer the need for a gap in the wall between the box room and the freezer room. The letter does not indicate that Williams-Carver had any superior knowledge about a potential fire hazard or that it engaged in an affirmative act to prevent the discovery of a defective condition.

Second, the record does not establish that Williams-Carver had any control over the height of the freezer wall. Travelers presented an affidavit from its expert, Carl Martin, who conducted an on-site investigation of the Mr. Dell facility to provide an engineering evaluation of the fire. Based on the investigation, Mr. Martin reported that Mr. Carver, the architect, and Mr. Watson had “discussed” a change in the height of the freezer wall to allow for ventilation of the area above the freezer. However, the affidavit does not indicate that Williams-Carver had any decision making power regarding the height of the wall or whether Williams-Carver advocated or recommended against changing the height of the wall. The architect acknowledged in his deposition that Williams-Carver had no authority to shorten or otherwise change the height of the wall. Moreover, the record is undisputed that Williams-Carver did not build the freezer room. Mid-Continent built the freezer room by erecting insulated wall panels inside Mr. Dell’s production facility. The freezer room was largely completed before the refrigeration system was constructed by Williams-Carver.

Third, the deposition testimony of several witnesses established that the gap between the top of the wall and the roof was open and obvious to everyone. A Mr. Dell employee had actually climbed over the wall and into the gap to check the roof for leaks. To rebut the evidence of openness, Travelers alleges the defective nature of the gap was “latent” and, therefore, its significance should have been disclosed by Williams-Carver. However, latent defects are not the same as concealed defects. Fueston v. Burns & McDonnell Eng’g Co., 877 S.W.2d 681, 688 (Mo.App.1994). “Conceals” means more than a failure to reveal information allegedly known. Butler, 895 S.W.2d at 19-20. Rather, it carries the “implication of intentional conduct designed to prevent discovery.” Id. at 19. As the circuit court noted:

Plaintiff argues that the Defendant Williams-Carver was required not only to disclose the existence of the gap in the separation wall, but also the significance of the gap. It is uncontroverted that the gap in the wall was open and obvious to anyone who looked (including the architect in an inspection). However, plaintiff asserts that the significance or danger created by the gap in the wall was not revealed, thus bringing this claim within the concealment exception in the statute. This argument goes far beyond the plain meaning of the concealment exception in the statute, and has been rejected by the Missouri Supreme Court in Butler.

There is no evidence that Williams-Carver acted affirmatively to prevent the discovery of the gap in the wall. Given the open and obvious nature of the alleged defective condition, there is no factual dispute as to whether the concealment exception in Section 516.097.4(2) could be applied. Point II is denied.

Conclusion

Summary judgment was proper because the undisputed facts show that: (1) Travelers’s damages claim against Williams-Carver is barred by the ten-year statute of repose in Section 516.097; and (2) the concealment exception therein is not applicable. We affirm the circuit court’s judgment.

All Concur.

      . All statutory citations are to the Revised Missouri Statutes 2000, as updated by the Cumulative Supplement 2009.