text:
    STATE ex rel. Christopher A. ROSTER, Respondent, v. Robyn L. BONSTELL, Appellant.
    No. WD 71635.
    Missouri Court of Appeals, Western District.
    May 18, 2010.
    Robyn Bonstell, Cameron, MO appellant Acting pro se.
    Megan K. Fewell, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES M. SMART, JR., and CYNTHIA L. MARTIN, JJ.
   ORDER

PER CURIAM:

Mr. Robyn L. Bonstell appeals a judgment denying a motion to set aside the judgment awarding reimbursement to the State for Mr. Bonstell’s incarceration.

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


source: Caselaw Access Project

author: VICTOR C. HOWARD, Judge.

license: Public Domain

text:
    R.L. POLK & COMPANY, Samba Holdings, Inc., Appellant-Respondents, and Experian Information Solutions, LLC., Appellant-Respondent, v. MISSOURI DEPARTMENT OF REVENUE and the Missouri Director of Revenue, Respondent-Appellants.
    Nos. WD 70973, WD 70997, WD 70998, WD 71018.
    Missouri Court of Appeals, Western District.
    May 18, 2010.

      Michael A. Dallmeyer, for Appellant-Respondent R.L. Polk & Company.
    Benjamin A. Lipman, for Appellant-Respondent Samba Holdings, Inc.
    Mark E. Long, for Respondent-Appellants Missouri Department of Revenue and Missouri Director of Revenue.
    Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C. HOWARD, Judge and ALOK AHUJA, Judge.
   VICTOR C. HOWARD, Judge.

The Department of Revenue and the Director of Revenue (“the Department”) appeal the trial court’s judgment finding that the Department’s 3.82<t charge per electronic copy of a Missouri motor vehicle or drivers’ license record violates section 610.026.1(2) of Missouri’s Sunshine Law. The Department claims that the trial court erred in finding that the Department could not impose a per record charge and in finding that the charge was excessive. RL Polk & Company, Samba Holdings, Inc., and Experian Information Solutions, LLC also appeal the judgment and contend that the trial court erred in denying their request for attorney’s fees. The judgment of the trial court is affirmed.

Factual and Procedural Background

Prior to May 1, 2008, R.L. Polk & Company, Samba Holdings, Inc., and Experian Information Solutions, LLC (“the Companies”) often requested copies of motor vehicle and drivers’ license records from the Department. The Department transferred the records to the Companies in bulk via an electronic transfer for a charge that averaged out to approximately .23c per record. Starting on May 1, 2008, the Department increased the fee for a copy of a record to $7.00 per record, including records transferred by electronic means.

The Companies filed an action against the Department challenging the fee increase. On June 20, 2008, the trial court entered its judgment and a permanent injunction. The court found that the motor vehicle and drivers’ license records were public records within the meaning of Missouri’s Sunshine Law. The court further concluded that, instead of complying with the fee limitations of the Sunshine Law, the Department improperly imposed the $7.00 per record charge in order to fund a new computer system. However, the court declined to award attorney’s fees to the Companies because it found that the Department did not violate the Sunshine Law knowingly or purposely. Based on its finding that the $7.00 charge per electronic copy provided in bulk violated the Sunshine Law, the court permanently enjoined the Department from charging any fee other than: (1) the charges in effect prior to May 1, 2008; or (2) charges that are established in compliance with the fee limitations set forth in section 610.026.1(2).

Following the trial court’s judgment, the Department announced that on December 1, 2008, it would implement a new fee of 3.82$ per electronic copy. On February 17, 2009, the Companies filed a motion to enforce the trial court’s judgment and injunction, claiming that the Department’s new fee did not comply with section 610.026.1(2). The Companies also sought to recover attorney’s fees.

The trial court issued its judgment and permanent injunction regarding the 3.82$ charge on April 16, 2009. The court found that section 610.026.1(2) of the Sunshine Law did not expressly permit the Department to charge a “per record” fee for electronic access to records. Instead, the statute limited the Department to charging only for the actual staff time necessary to respond to each request and transfer the records and for the cost of the medium on which the record is copied. However, because the records were provided by electronic transfer through the internet, the court found that the Companies did not have to pay for the cost of the medium used for duplication.

In addition, the court concluded that, even if the Department could charge a per record fee pursuant to the Sunshine Law, the 3.82c: fee violated section 610.026.1(2) because it was excessive and, therefore, unlawful. The evidence submitted to the court showed that, in computing the 3.82$ fee, the Department determined that its annual cost to maintain and provide electronic copies of records was $269,562. The Department arrived at the 3.82$ fee by dividing the annual cost figure by the total number of motor vehicle and drivers’ license records that were updated during the year, which was approximately 7 million records. The evidence also showed that in 2007, the Department sold 90,316,-752 electronic copies of records and in 2008, it sold 81,074,358 electronic copies of records. The court found that, if the total annual cost was divided by the number of electronic copies sold in 2007, the per record cost would be less than .30$, and if it was divided by the number sold in 2008, the per record cost would be .34$. Therefore, the court determined that the evidence did not justify a fee of 3.82$ per record but, rather, the Department could not lawfully charge more than .34$ on a per record basis.

On the issue of attorney’s fees, the court found that the Department did not knowingly or purposely violate the Sunshine Law and declined to award attorney’s fees to the Companies. While the Department’s calculation to set its fee was incorrect, its interpretation of the statute and its proposed rate did not demonstrate a knowing or purposeful violation. Furthermore, the court found that there was no evidence of a purpose or intent to violate the Sunshine Law. The court’s judgment permanently enjoined the Department from charging any fee other than: (1) the fees in effect prior to May 1, 2008; or (2) a fee established in compliance with section 610.026.1(2). The Department and the Companies appeal.

Standard of Review

In reviewing a court-tried case, we will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “[W]e accept as true the evidence and reasonable inferences therefrom in favor of the prevailing party and disregard the contrary evidence.” Evans v. Werle, 31 S.W.3d 489, 491 (Mo.App. W.D.2000). “This court will set aside the trial court’s decision only when firmly convinced that the judgment is wrong.” Id. Interpretation of a statute is a question of law and is subject to de novo review. See McKinney v. State Farm Mut. Ins., 123 S.W.3d 242, 245 (Mo.App. W.D.2003).

Compliance with the Sunshine Law

We address first the Department’s appeal from the trial court’s judgment. In its two points on appeal, the Department claims that the trial court erred in finding that the 3.82<t charge violated section 610.026.1(2) of the Sunshine Law because: (1) the plain language of the statute allows the Department to charge a per record fee for electronic records; and (2) the charge was not excessive in that the statute permits the charge to include the cost of maintaining and providing electronic records.

Section 610.026.1(2) provides that, except as otherwise provided by law, public governmental bodies shall provide access to and, upon request, furnish copies of public records subject to the following fee limitations:

Fees for providing access to public records maintained on computer facilities, recording tapes or disks, videotapes or films, pictures, maps, slides, graphics, illustrations or similar audio or visual items or devices, and for paper copies larger than nine by fourteen inches shall include only the cost of copies, staff time, which shall not exceed the average hourly rate of pay for staff of the public governmental body required for making copies and programming, if necessary, and the cost of the disk, tape, or other medium used for the duplication.

In an attempt to comply with the statute, the Department performed a cost analysis in which it determined that its annual cost to maintain and provide electronic copies of records was $269,562. The Department divided the total cost by the number of records that were updated during the year and arrived at a fee of 3.82<[ per record, to be applied to all electronic records requests regardless of the nature or size of a particular request. The trial court found that section 610.026.1(2) does not expressly permit a per record fee for electronic access to records but, rather, limits the Department to charging “only for the actual staff time necessary to respond to each request made and to transfer the electronic records and the cost of any medium on which the records are copied.” Therefore, the court concluded that the Department’s fee of 3.82<t per electronic record violated section 610.026.1(2).

The Department contends that the trial court’s interpretation of the statute is unduly restrictive. In support of its contention, the Department argues that the legislature intended some relationship between the scope of the request and the amount paid. Otherwise, a person who requests ten electronic records could potentially pay the same amount as a person who requests all of the electronic records, or the person requesting only ten records could pay more because the Department must spend more time identifying and isolating the records. However, based on the language of section 610.026.1(2), we find that, in the context of electronic transfers of records, the amount paid relates not to the actual number of records requested but, instead, relates to the staff time used and the cost incurred by the Department in responding to the request. Therefore, the trial court did not err in finding that the statute does not authorize the Department to charge an across-the-board per record fee for electronic records, without any reference to the nature, size, or other particulars of a given request.

“The primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute.” State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. banc 2007). In the absence of statutory definitions, the plain and ordinary meaning of the terms in a statute may be derived by considering the context of the entire statute in which the terms appear. See id. The Department refers to the first subsection of section 610.026.1 in support of its argument that a blanket per record fee is allowed. Section 610.026.1(1) provides that “[flees for copying public records ... shall not exceed ten cents per page for a paper copy.” This language appears to undermine the Department’s argument rather than strengthen it. The legislature specifically chose to authorize a per record fee for paper copies in section 610.026.1(1). Similar language is conspicuously absent from section 610.026.1(2), which imposes fee limitations for, among other types of records, records maintained on computer facilities.

The Department claims that, while the legislature set the per record cost for paper copies in the first subsection, the absence of similar language in section 610.026.1(2) implies that the Department is to set the per record fee for the types of records included in section 610.026.1(2). However, in the context of electronic records, a flat per record fee would not properly take into account the costs the statute authorizes the Department to include in its fee. Where the records are transferred electronically to the Companies, the number of records requested does not necessarily correspond to the cost to the Department in terms of staff time and the cost to transfer the records.

For instance, as the Department itself points out, the trial court received evidence which demonstrated that the Department may incur the same cost in responding to a request for all of its records as it would in responding to a request for only ten records. Essentially, the Department would not incur any further costs simply due to the difference in the number of records requested. Furthermore, the evidence showed that it may cost the Department more to process a request for only ten records because it would have to spend more staff time to identify and isolate those particular records.

Section 610.026.1(2) specifically limits the fee for providing access to public records maintained on computer facilities to include only the cost of copies, staff time, and the cost of the medium used for duplication. In the context of transferring electronic records, the Department incurs these costs based on each request, whether it be for ten or all of the Department’s records, rather than based purely on the number of records sought in the request. Where a uniform per record fee is not expressly authorized by the statute, and where a per record fee for the transfer of electronic records does not correspond to or properly account for the types of costs listed in the statute, the trial court did not err in finding that the Department’s fee of 3.82<p per record for records provided electronically through the internet was not in compliance with the requirements of section 610.026.1(2). The Department’s point on appeal is denied.

Attorney’s Fees

In their individual cross-appeals, the Companies claim that the trial court erred in denying their request for attorney’s fees because the Department purposely and knowingly violated the Sunshine Law when it set its fee at 3.82<t per electronic record.

Section 610.027 authorizes the trial court to award attorney’s fees to any party who successfully establishes a purposeful or knowing violation of the Sunshine Law. If the court finds that a public governmental body has knowingly violated sections 610.010 to 610.026, the court may order the governmental body to pay all costs and reasonable attorney’s fees to the prevailing party. § 610.027.3. If the court finds that the violation was purposeful, the court is required to order the payment of all costs and reasonable attorney’s fees. § 610.027.4. To purposely violate the Sunshine Law, “more than a mere intent to engage in the conduct resulting in the violation is necessary.” Spradlin v. City of Fulton, 982 S.W.2d 255, 262 (Mo. banc 1998). Instead, the “public governmental body must exhibit a ‘conscious design, intent, or plan’ to violate the law and do so ‘with awareness of the probable consequences.’ ” Id. Furthermore, “[ejngaging in conduct reasonably believed to be authorized by statute does not amount to a purposeful violation.” Id. at 263.

On the issue of attorney’s fees, the trial court found that the Department had not purposefully or knowingly violated the Sunshine Law. While the court found that the Department’s calculation to set its 3.82<t charge was incorrect, it did not believe that the Department’s interpretation of the statute and method of calculating the charge were the type of conduct that constituted a purposeful or knowing violation. Additionally, the court found that there was no evidence of a purpose or intent to violate the Sunshine Law.

The Companies argue that the Department unlawfully included certain costs in its cost analysis and underestimated the number of records it would sell in a given year, thereby inflating the per record charge in order to recover a profit. The Companies claim that this constitutes a purposeful and knowing violation of the Sunshine Law. The Department contends that it did not purposefully or knowingly violate the Sunshine Law in setting its fee for electronic records because neither section 610.026.1(2) nor the terms of the trial court’s judgment set forth specific criteria regarding how a charge was to be calculated for electronic records.

The trial court was familiar with the entire course of the parties’ litigation and similarly found that the Department did not purposefully or knowingly violated the Sunshine Law when it set its rate at $7.00 per electronic record. At that stage of the litigation, the Department set its rate premised on its belief that the Sunshine Law and the fee limitations of section 610.026.1(2) did not apply to the records at issue. After the trial court ruled that the Sunshine Law applied, the Department performed a cost analysis and attempted to set a fee that conformed to section 610.026.1(2). The trial court’s previous judgment did not set forth standards by which the Department was to calculate the new fee; it merely limited the Department to charging the fees in effect prior to May 1, 2008, or to charging a fee that complied with the criteria set forth in section 610.026.1(2). While the statute limits the types of costs the Department may seek to recover in its fees, it does not expressly set forth a method by which the fee should be calculated, i.e., whether a per record fee could be charged for electronic records. Under these circumstances, the trial court’s finding that the Department had not purposefully or knowingly violated section 610.026.1(2) was not against the weight of the evidence. The Companies’ point is denied.

The judgment of the trial court is affirmed.

All concur.

      . All statutory references are to RSMo Cum. Supp.2008.

      . The Department’s charge for electronic records in bulk was based on a fee schedule that included a processing fee, a programming fee, a fee of .43$ per 100 records for the first 50,000 records, and a fee of .03<C per 100 records for over 50,000 records.

      . At this stage of the litigation, the Department was claiming that its charge for a copy of a record was not subject to the fee limitations of the Sunshine Law.

      . The court specifically stated that it was not deciding whether each of the individual items set forth in the Department’s cost calculation were lawfully included.

      . This appeal involves only the Department’s attempt to establish a per record fee that applies uniformly to all electronic records requests, without regard to the nature of the particular request. We are not called upon to address, and do not address, the lawfulness of a fee schedule in which the Department seeks, for purposes of administrative convenience, to pre-determine the rates for particular categories of requests based on the costs associated with particular types of requests. In this regard, we note that the Companies have not challenged that aspect of the trial court’s June 20, 2008 or April 16, 2009 judgments which permitted the Department to return to its pre-May 1, 2008 fee schedule, which contained certain pre-determined rates.

      . Like the trial court, we do not address whether the individual items in the Department's cost analysis were properly included.

      . Because we affirm the trial court's finding that the Department cannot charge a per record fee in this instance, we do not address the Department's second point challenging the trial court’s ruling that the 3.82<t fee violated section 610.026.1(2) in that it was excessive.

      . In a deposition that was entered into evidence, a member of the Department testified that the goal of its cost analysis was to calculate a new fee that was in compliance with the Sunshine Law.


author: KAREN KING MITCHELL, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Kelly J. BRAND, Appellant.
    No. WD 71068.
    Missouri Court of Appeals, Western District.
    May 18, 2010.

      Matthew Ward, Assistant State Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division I: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and CYNTHIA L. MARTIN, Judges.
   KAREN KING MITCHELL, Presiding Judge.

Kelly J. Brand appeals her convictions of possession of a controlled substance in violation of section 195.202 and possession of drug paraphernalia in violation of section 195.233, after a jury trial in Harrison County and for which she was sentenced to five years imprisonment. On appeal, Brand claims that the trial court erred in admitting evidence seized in what she argues was an unconstitutional search of an automobile and in admitting evidence of other uncharged crimes. She claims that the evidence of uncharged crimes was irrelevant to the determination of whether she possessed methamphetamine or a methamphetamine pipe. We affirm the judgment of the trial court.

Factual and Procedural Background

On January 28, 2008, off-duty Missouri State Highway Patrol Trooper Jason Cross saw Brand and William Worley arguing in a Wal-Mart store in Bethany, Missouri. Worley was holding a one-gallon can of Coleman camping fuel. Cross thought the pair looked suspicious and watched them in the store. Worley purchased the camping fuel and some lithium batteries. Through his training, Trooper Cross knew that camping fuel and lithium batteries were essential components to one process used to manufacture methamphetamine.

Trooper Cross called the Bethany Police Department and told Officer Brian Holloway what he had observed. While he was talking to Officer Holloway, he followed Worley out of the store and saw him enter a red Dodge Durango with Iowa license plates.

Officer Holloway drove through the Wal-Mart parking lot and found the Dodge Durango matching the description that Cross had given him. Because he was in a marked patrol car, he contacted Harrison County Deputy Coleman, who was in an unmarked patrol car, advised him of the situation, and had him watch the Durango.

Officer Holloway waited in the area until Deputy Coleman advised him on the radio that the Durango was leaving the parking lot. Officer Holloway saw the Durango on a connecting street to the parking lot. The Durango did not signal when it turned onto another street or when it changed lanes shortly thereafter. The officer directed Deputy Coleman, who was directly behind the Durango, to stop it. The deputy stopped the Durango.

Officer Holloway arrived at the scene and approached the driver, Deana Doman-Bishop. Worley was in the front passenger seat and Brand was in the right rear passenger seat. There was a purse in the back seat, which at one point Brand had in her hands. The occupants of the Durango gave their identification cards to Officer Holloway. Worley was acting very nervous; he was visibly shaking as he handed his identification to Officer Holloway.

The officer asked Doman-Bishop to step out of the Durango and follow him to Deputy Coleman’s car, which was directly behind the Durango and closer than his own vehicle. In the deputy’s car, Officer Holloway checked all of the identifications for warrants but found none. The officer handed Doman-Bishop’s license back to her and gave her a warning about the traffic violation. He then asked her if she were willing to speak with him further, and she asked him what he wanted to talk about. Officer Holloway asked Doman-Bishop if she had any illegal items in her car. She told him that she did not and invited him to look in her car. Officer Holloway asked her whether she was consenting to a search of her automobile, and she responded, “Go ahead and look. I don’t have anything.”

Officer Holloway left Doman-Bishop in the deputy’s car with Deputy Coleman. He approached the passengers in the Du-rango, got the remaining occupants out of the vehicle, patted them down, and told them to have seats in patrol cars to stay warm. Brand was placed in Officer Holloway’s car, and Worley was placed in the vehicle of another Missouri State Highway Patrol trooper who had stopped to give assistance.

Officer Holloway then searched the Du-rango. In Wal-Mart bags found behind the driver’s seat, he found two cans of Coleman fuel, two cans of engine starting fluid, and a respiratory mask. Ether, the main ingredient of engine starting fluid, is also used in the production of methamphetamine. A 100-count case of needle syringes was found on the rear driver’s-side seat. A bottle of pseudoephedrine was found on the console between the two front passenger seats. A “.38 special” gun was found on the right rear passenger floorboard, where Brand’s feet would have been. The gun had six bullets in it, and twenty-one other bullets were found in a bag under the front passenger’s seat.

Officer Holloway found a purse in the same area as the gun. It was the same purse he had seen in Brand’s hands earlier. Without seeking further consent, Officer Holloway opened the purse. Inside the purse was a zippered pouch that contained three baggies of an off-white powder. The powder was later determined to be methamphetamine. The zippered pouch also contained a glass pipe wrapped in a bandana. The pipe contained methamphetamine residue. Also in the purse, Officer Holloway found three or four containers of marijuana, a marijuana pipe, a plastic bag of marijuana, two packages of rolling papers, a cigarette rolling machine, digital scales, a canceled check in Brand’s name, a bank statement for Brand’s son, and a piece of mail addressed to Brand.

Doman-Bishop told Officer Holloway that the purse was Brand’s, and Brand was arrested for possession of methamphetamine and for possession of the methamphetamine pipe.

Before the trial, defense counsel moved to suppress the evidence found in the Du-rango. At trial, counsel renewed the motion before the State presented its case in chief, and again when Officer Holloway testified about what he found when he searched the Durango. The trial court did not allow a continuing objection, so counsel objected to each piece of evidence as it was introduced. The trial court overruled all of defense counsel’s motions to suppress the evidence. The jury found Brand guilty, and this appeal follows.

Standard of Review

“When reviewing the trial court’s overruling of a motion to suppress, [an appellate] [c]ourt considers the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court’s ruling.” State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). We will reverse the trial court’s ruling only if it is clearly erroneous. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). Whether the Fourth Amendment has been violated, however, is an issue of law that we review de novo. State v. Sullivan, 49 S.W.3d 800, 806 (Mo.App. W.D.2001).

Once the evidence has been found not to have been obtained in violation of the Fourth Amendment, we review the admissibility of the evidence for abuse of discretion. State v. Mozee, 112 S.W.3d 102, 105 (Mo.App. W.D.2003).

Legality of Search

Brand’s first point on appeal is that Officer Holloway’s search of Doman-Bishop’s car and, thus, of Brand’s purse, which was in the car, violated the Fourth Amendment’s prohibition of unreasonable searches and seizures. As a general rule, warrantless searches are considered unreasonable and, therefore, prohibited by the Fourth Amendment. State v. Martin, 79 S.W.3d 912, 916 (Mo.App. E.D.2002). When a defendant moves to suppress evidence found as a result of a search that she claims violates the Fourth Amendment, it is the State’s burden to show that the search was reasonable and that it was conducted under circumstances such that a warrant was not required. Id. One case where a warrant is not required for law enforcement to conduct a search of an automobile is when the owner of the automobile voluntarily consents to the search. Sullivan, 49 S.W.3d at 813. Brand acknowledges that Doman-Bishop gave Officer Holloway her consent for his search of her vehicle. However, she claims that by the time the consent was given, Doman-Bishop and the other occupants of the automobile were being detained beyond the reasonable scope of the initial stop of the automobile, thus negating the volun-tariness of the consent and rendering the search illegal.

The State offers two different justifications for the stop of Doman-Bish-op’s automobile. First, the State claims that Doman-Bishop was properly stopped for a traffic violation. Police may briefly stop an automobile when they observe a violation of the traffic laws. Martin, 79 S.W.3d at 916. Officer Holloway stopped Doman-Bishop because he observed her make a right-hand turn and then a lane change without using her turn signals. Thus, the stop of the Durango and its occupants was a proper traffic stop, even though it is considered a seizure of the occupants within the meaning of the Fourth Amendment. Id. Traffic stops may not go on indefinitely, however, while law enforcement conducts investigation of other suspected criminal activity. “[I]f the detention extends beyond the time reasonably necessary to effect its initial purpose [in this case, the traffic stop], the seizure may lose its lawful character unless a new factual predicate for reasonable suspicion is found during the period of lawful seizure.” Id.

Brand argues that by the time Officer Holloway asked Doman-Bishop whether anything illegal could be found in her vehicle and whether he might search it, the traffic stop had effectively terminated. Officer Holloway had already run the computer search of the identifications of the Durango’s occupants and had already given Doman-Bishop an oral warning about her traffic offense. Because Officer Holloway had already given Doman-Bishop her warning, Brand claims that the stop had concluded and that Officer Holloway was not entitled to ask Doman-Bishop any more questions.

Brand cites two Missouri cases where it was found that consent to search an automobile had been given after the traffic stop had ended, thus rendering the search illegal and warranting suppression of evidence. In State v. Granado, 148 S.W.3d 309, 310 (Mo. banc 2004), a vehicle was stopped for weaving on an interstate highway. The patrolman conducting the stop had the driver of the vehicle accompany him to his patrol car while he ran the driver’s identification. Id. The patrolman asked the driver several questions while the identification check was ongoing. Id. The patrolman then returned to the vehicle to retrieve the proof of registration, at which time he asked several questions of the vehicle’s passenger; the answers to the questions were inconsistent with those the driver had provided. Id. The patrolman returned to the patrol car, gave the driver a warning about the traffic violation, and told him he was free to go. Id. Then, just before the driver reached his vehicle to leave, the patrolman re-engaged the driver, informed him that his passenger’s story varied from his own, and requested the driver’s consent to search the vehicle. Id. When the driver refused, the patrolman told the driver that he could not remove the vehicle until it could be observed by a K-9 unit. Id. at 310-11. The K-9 unit arrived at the scene, alerted to the vehicle, and a subsequent search revealed thirty-six pounds of marijuana. Id. at 311.

In reversing Granado’s conviction and the trial court’s overruling of the motion to suppress, the Missouri Supreme Court stated:

The purpose of the stop, to investigate a traffic violation, was satisfied as soon as Granado stepped out of the patrol car. Once these steps were completed, the patrolman was required to allow Grana-do to proceed without further questioning unless specific, articulable facts created an objectively reasonable suspicion that the individual was involved in criminal activity.

Id.

State v. Sanchez, 178 S.W.3d 549 (Mo.App. W.D.2005), has similar facts: the car was stopped for a traffic violation; the driver was questioned in the patrol vehicle while the patrolman investigated the occupants’ identifications; the driver was issued a warning and was told that she was free to go; and then the driver was reengaged by the officer just before getting back into her vehicle. Id. at 550-52. Also as in Granado, the patrolman requested consent to search the vehicle; consent was refused; and the vehicle was retained while a canine unit was summoned to the scene. Id. at 552. In Sanchez, this court cited Granado and noted that, when the officer told the driver that she was free to go, the traffic stop had ended. Id. at 555. Because the officer detained the vehicle after the traffic stop had ended, the subsequent search of the automobile, which revealed a large amount of drugs, was conducted in violation of the Fourth Amendment, and the evidence was, therefore, inadmissible. Id. at 555-56.

We find the case at bar distinguishable from Granado and Sanchez. In this case, although Officer Holloway had given Doman-Bishop her warning, she had not yet been told that she could go and had not yet exited his vehicle when Officer Holloway asked her whether he might ask her a few more questions. He had also not yet returned their respective identification cards to Worley and Brand. Doman-Bishop did not refuse to answer further questions, and Officer Holloway immediately then asked her whether there was anything illegal in the Durango. She answered in the negative, and then, unlike the drivers in Sanchez and Granado, she reportedly offered to let Officer Holloway search the Durango. “ ‘[A] volunteering of consent without a prior request from police is a strong indication of voluntariness.’ ” Sullivan, 49 S.W.3d at 812 n. 8 (quoting State v. Kennedy, 290 Or. 493, 624 P.2d 99, 105 (1981)).

Here, in order to reverse the trial court, we would have to conclude that once the investigation of the traffic offense had been completed and a warning or ticket had been given, there could be no additional questioning, regardless of: (1) how little time had passed since the completion of the investigation; (2) the location of the driver; (3) the nature of the questioning; and (4) whether the officer had undertaken any additional actions to end the stop (i.e. returning the passengers’ identifications). Such a finding would be a significant and unwarranted extension of the holdings in Granado and Sanchez. Considering the totality of the circumstances, we do not find that Doman-Bishop was detained unnecessarily or unreasonably after the completion of the traffic stop.

Alternatively, the State argues that, even if a traffic violation had not occurred, the stop of the Durango would have been justified under the principles outlined in Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because law enforcement officers had a reasonable suspicion that Worley and Brand were engaged in criminal activity. If the stop were justified on this alternative ground, a brief detention and questioning regarding the suspected criminal activity would not run afoul of the Fourth Amendment. Trooper Cross saw Worley and Brand, both of whom appeared suspicious, arguing loudly in the pharmacy section of Wal-Mart. He also noticed that Worley was carrying camping fuel even though it was January and camping was unlikely. The pair’s behavior and demeanor made Trooper Cross “immediately” suspicious of them — enough so that he continued to watch Worley while he was in the store. He then noticed that Worley purchased lithium batteries. Through his training as an officer, Trooper Cross knew that camping fuel and lithium batteries, both fairly unusual purchases, were often used together to manufacture methamphetamine. While any of these circumstances individually might not be evidence of any illegal conduct but, instead, consistent with wholly innocent behavior, we look at the totality of the circumstances, which includes consideration of the expertise of law enforcement officials, whose training might make seemingly “unremarkable” behavior seem “quite unusual.” State v. Hawkins, 137 S.W.3d 549, 558-59 (Mo.App. W.D.2004) (quoting United States v. Arvizu, 534 U.S. 266, 276, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)).

Trooper Cross was suspicious enough that Worley and Brand were engaged in criminal activity that he phoned the police station to have someone follow them, even though he was not on duty at the time. We find Trooper Cross’s suspicion reasonable and based on articulable facts sufficient to support a brief Terry-type stop. The Supreme Court acknowledged that innocent people might be detained briefly while a Terry investigation was conducted, but concluded that such a risk was justifiable because it was a “minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way.” Illinois v. Wardlow, 528 U.S. 119, 126, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

If the stop of the Durango had been a Terry stop to investigate whether the occupants were engaged in the manufacture of methamphetamine, it would have been reasonable under Terry. Officer Holloway checked the occupants’ identifications for outstanding warrants and then, apparently, asked Doman-Bishop exactly one question before she offered her consent to search: whether there was anything illegal in the Durango. This is about as brief as an investigation can be without having contraband in plain view. We thus find that the stop of the Durango is justifiable as either a traffic stop or a Terry stop and that the consent to search was given voluntarily by Doman-Bishop before the stop had terminated. The evidence was, therefore, not obtained in violation of Brand’s rights under the Fourth Amendment.

Evidence of Uncharged Crimes

Brand’s second point on appeal is that the trial court erred by admitting evidence of other, uncharged, crimes against Brand to prove that she was guilty of possession of methamphetamine and paraphernalia and that she was prejudiced by the error. Specifically, Brand objects to the trial court’s admission of evidence of marijuana, marijuana paraphernalia, ingredients used to manufacture methamphetamine, a handgun, bullets, rolling papers, a cigarette rolling machine, and digital scales that were found either in Brand’s purse or elsewhere in the Durango. As a rule, evidence of uncharged crimes is inadmissible to show that a defendant has a propensity to commit the crimes for which she has been charged. State v. Harris, 156 S.W.3d 817, 824 (Mo.App. W.D.2005). Brand argues that the evidence admitted at her trial was improperly allowed to show that she had a propensity to commit the crimes for which she was charged and that the prejudicial value of the evidence outweighed any probative value of the evidence such that it should have been excluded. We disagree.

Evidence of uncharged crimes may be admissible to show motive, intent, absence of mistake, the existence of a common scheme or plan, or the identity of the person being charged with the commission of the crime. State v. Yahne, 943 S.W.2d 741, 745 (Mo.App. W.D.1997). When a defendant is charged with possession of a controlled substance (or paraphernalia), the State must establish that she had (1) conscious and intentional possession of the controlled substance, either actual or constructive; and (2) awareness of the presence and nature of the substance. § 195.010(34). The State attempted to establish that Brand had constructive possession of the methamphetamine and the methamphetamine pipe by presenting evidence showing that the purse in which the contraband was found belonged to Brand and that it was near her in the Durango.

To establish that a defendant is aware of the presence and the nature of a controlled substance, courts will typically admit evidence such as the evidence admitted by the trial court in this case. Evidence of other drugs in possession of the defendant, especially if found at the same time as the controlled substance with which the defendant is being charged of possessing, are admissible to show that the defendant knowingly and intentionally possessed the charged substances. State v. Allen, 856 S.W.2d 676, 677 (Mo.App. E.D.1993) (“ ‘[Possession of marijuana is logically relevant to establishing that another drug was possessed with full knowledge of its illegal character.’ ”) (quoting State v. Webb, 646 S.W.2d 415, 417-18 (Mo.App. W.D.1983)). Therefore, Brand’s possession of the marijuana and marijuana paraphernalia, rolling papers, and rolling machine were admissible to show that Brand knowingly possessed the methamphetamine and methamphetamine paraphernalia.

Evidence tending to show that the defendant is involved in the manufacturing or distribution of a controlled substance also tends to show that the defendant knowingly possessed the substance. Yahne, 943 S.W.2d at 746. Thus the camping fuel, lithium batteries, digital scales, and other items used to manufacture methamphetamine were properly admitted by the trial court to show that Brand knowingly possessed the methamphetamine and the methamphetamine pipe.

Finally, evidence of a firearm found on or near the defendant is usually admissible to show that the defendant knew of the illegal nature of the substance she has been accused of possessing. See State v. Charlton, 114 S.W.3d 378, 384 (Mo.App. S.D.2003). Therefore, it was within the trial court’s discretion to admit the evidence of the handgun and the bullets found in the Durango, even though Worley admitted that they belonged to him. In sum, we find that the evidence of the uncharged crimes was properly admissible to establish that Brand knowingly and intentionally possessed the methamphetamine and the methamphetamine pipe, the offenses for which she was on trial. Brand has not shown that the trial court exceeded its discretion in admitting the evidence or that she was unfairly prejudiced by the admission of the evidence. Point denied.

Conclusion

The search of the Durango was conducted with the consent of its owner and did not violate Brand’s rights under the Fourth Amendment. The evidence was also properly admissible to show that she knowingly and intentionally possessed methamphetamine and methamphetamine paraphernalia. Accordingly, we affirm the judgment of the trial court.

LISA WHITE HARDWICK, Judge, and CYNTHIA L. MARTIN, Judge, concur.

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

      . "We review the facts in the light most favorable to the jury’s verdict.” State v. Elam, 89 S.W.3d 517, 520 (Mo.App. W.D.2002).

      . As stated in note 3, infra, Brand argued before the trial court that the search of her purse, specifically, was in violation of her Fourth Amendment rights in that Doman-Bishop did not have standing to consent to the search of Brand's purse. This argument has been abandoned on appeal.

      . Brand did challenge the search of the Du-rango before the trial court, making this same argument and also apparently arguing that Doman-Bishop did not have standing to consent to the search of Brand's purse. The trial court's order denying Brand's motion to suppress the evidence at trial that has been included in the record addresses only the fact that the search of the purse, as a container in the vehicle, was within the scope of the consent search of the vehicle, citing State v. Shoults, 159 S.W.3d 441 (Mo.App. E.D.2005). The judgment of the trial court is a form judgment wherein the trial court checked boxes delineating the offenses charged, the verdicts, and the sentences imposed, and it does not set forth any conclusions of law. The State’s submissions to the trial court are also not included in the record. Accordingly, assuming that the State offered both of the justifications for the stop at the trial-court level that it offers here, it is unclear under which of the two justifications the trial court found the stop and subsequent consent search to have been properly conducted. This opinion, therefore, addresses both justifications.

      . We note that Brand did not challenge the fact that Officer Holloway requested all of the Durango's occupants to produce identification, and we take no position in this opinion on the propriety of an officer's running a check on the identifications of passengers as part of a routine traffic stop. See State v. Waldrup, - S.W.3d -, - (Mo.App. W.D.2010).

      . We also find that State v. Vogler, 297 S.W.3d 116 (Mo.App. S.D.2009), is distinguishable. In Vogler, the driver was told at the outset that he would only receive a warning. Id. at 117. The driver was also told to wait in his own vehicle while the stopping officer ran the driver's license check. Id. Therefore, when the officer had completed the check and returned the license to the driver, the stop had been completed. Also, in Vogler, the stopping officer asked the driver whether he might conduct a search of the vehicle and of the driver's person, whereas in this case, Doman-Bishop voluntarily offered to let the officer search her vehicle before the officer asked her whether she were consenting to a search of her vehicle. See id. at 118. Interestingly, Vogler, and State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007), which Vogler cites, both stress that the stopping officers had not told the respective drivers that they were free to go when the drivers consented to the searches of their vehicles, indicating that this failure made the requests for consent more coercive and thus not voluntary. By contrast, the cases the State cites here and that we mention above, Granado and Sanchez, both stress that the officers had told the drivers that they were free to go, thus ending the scope of the traffic stops, which then caused the courts to conclude that any further delay of the drivers was improper. See Sanchez, 178 S.W.3d at 555, and Granado, 148 S.W.3d at 311.


author: THOMAS H. NEWTON, Chief Judge.

text:
    C-H BUILDING ASSOCIATES, LLC., Respondent, v. Joe H. DUFFEY, et al., Appellant.
    No. WD 71158.
    Missouri Court of Appeals, Western District.
    May 18, 2010.

      Michael P. Keleher and Michael T. Fee-back, Gladstone, MO, for Appellant.
    Thomas E. Hankins, Gladstone, MO, for Respondent.
    Before: THOMAS H. NEWTON, C.J., JAMES M. SMART, JR., and CYNTHIA L. MARTIN, JJ.
   THOMAS H. NEWTON, Chief Judge.

C-H Building Associates, LLC (C-H) sued Mr. and Mrs. Joe Duffey (the Duf-feys) under three theories, including breach of contract based on an alleged lease in a commercial real estate sales agreement. After discovery, C-H filed a motion for summary judgment, which the trial court granted. The Duffeys appeal the trial court’s summary judgment. We reverse and remand.

Factual and Procedural Background

C-H entered a real estate sales contract with the Duffeys to purchase a commercial building. The contract contained the following language under the property description: “lease with Liberty Homes to be 3 YEARS AT 3,000.00 PER MONTH TRIPLE NET ON THE NORTH APPROXIMATELY 2500 Sq. FT. OF building .... Buyer is aware that seller is a LICENSED REAL ESTATE AGENT IN THE STATE OF Missouri.” Liberty Homes had been a tenant in the building for several years; Mr. Duffey owned a third of the entity.

C-H’s owners signed the contract as the buyers. After the closing, Liberty Homes stopped paying rent to the Duffeys and started paying rent in the amount of $3,000 a month to C-H. C-H accepted all payments and was in negotiation with Liberty Homes for a three-year lease. After fourteen months, Liberty Homes moved out and stopped paying rent.

C-H and its owners sued the Duffeys under three counts. First, they alleged that the Duffeys committed fraud, deceit, and misrepresentation because they represented that a three-year lease with Liberty Homes existed when in fact there was no lease. Second, they alleged the Duffeys committed negligent misrepresentation because the Duffeys represented that C-H would receive rental income from Liberty Homes based on a lease in conscious disregard of C-H’s rights. Third, they alleged the Duffeys breached the contract because the Duffeys failed to produce a three-year lease on a triple net basis with Liberty Homes.

The Duffeys answered, denying the averments and asserting the doctrine of merger. Subsequently, C-H filed a motion for summary judgment on the breach of contract claim. The Duffeys responded by denying, admitting, and adding material facts. C-H replied, denying most of the additional material facts. After a brief hearing, the trial court granted the motion for summary judgment. C-H filed a notice dismissing the remaining claims without prejudice. The Duffeys appeal.

Standard of Review

We review a trial court’s decision to grant a summary judgment motion de novo. Taryen Develop., Inc. v. Phillips 66 Co., 31 S.W.3d 95, 97 (Mo.App. E.D.2000). We use the same criteria for testing the propriety of summary judgment employed by the trial court in determining whether to grant the motion. Id. We view the record in the light most favorable to the non-movant. Id,, (citing ITT Commercial Fin. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). We also view reasonable inferences from the record in the light most favorable to the non-movant. ITT, 854 S.W.2d at 376.

Legal Analysis

The Duffeys raise three points on appeal challenging the propriety of the summary judgment. They contend: (1) C-H failed to assert undisputed material facts establishing the Duffeys breached the contract; (2) a fact question existed about the meaning of undefined, material terms within the contract that were ambiguous; and (3) CH did not show that the Duffeys’ affirmative defense was not viable. Since the first point is dispositive, we do not address the remaining two points.

To prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute as to the material facts and that it is entitled to judgment as a matter of law. Cosky v. Vandalia Bus Lines, Inc., 970 S.W.2d 861, 864 (Mo.App. S.D.1998) (citing Rule 74.04(c)). Thus, C-H had the burden “to show a right to judgment flowing from facts about which there is no genuine dispute.” Taryen Dev., Inc., 31 S.W.3d at 97 (internal citation omitted). Specifically, to prevail on a motion for summary judgment for a breach of contract claim, C-H was required to make a prima facie showing that there was no genuine dispute as to the material facts establishing: (1) the existence of a valid contract; (2) the defendants’ obligation under the contract; (3) a breach by the defendants of that obligation; and (4) resulting damages. See id. at 104.

Our review of the motion for summary judgment shows C-H did not allege that the Duffeys had a contractual obligation. Rather, it quoted the following contractual provision:

Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller the real estate described in Exhibit A ... and all personal property used in the operation of the buildings ... including the following: Lease with Liberty Homes to be 3 years at $3,000 per month triple net on the North approximately 2500 sq ft of building.

C-H alleged that Liberty Homes vacated the premises after paying rent for only fourteen months. In paragraph 17, it then alleged that a lease existed between it and Liberty Homes. In paragraph 28, C-H alleged that the Duffeys owed $103,647.08 for breaching the contract, but did not allege any material facts depicting a breach by the Duffeys.

The quoted contractual language did not constitute an allegation of an obligation the Duffeys had to C-H concerning Liberty Homes’ performance under the purported lease. Moreover, the absence of material facts depicting a breach by the Duffeys precludes an inference of any obligation. Nor can a breach be inferred from reading the allegations together. Pub. Sch. Ret. Sys. of Mo. v. Taveau, — S.W.3d —, — (Mo.App. W.D.2010) (reading allegations and supportive evidence collectively to imply an undisputed material fact). Because C-H did not allege an obligation or allege undisputed material facts depicting a breach by the Duffeys, it failed to make a prima facie showing entitling it to a summary judgment. Because C-H failed to make a prima facie showing, the trial court improperly granted the summary judgment. See Wilson v. Lodwick, 96 S.W.3d 879, 885 (Mo.App. W.D.2002). The Duffeys’ first point is granted.

Conclusion

Therefore, we reverse the summary judgment and remand the case to the trial court for further proceedings.

      . The payments were not on a triple net basis, meaning Liberty Homes did not pay a pro-rata share of the taxes, insurance, or common area maintenance.


author: DONALD P. HARRIS, SR., J.,

text:
    Robbie Edwina ELMORE v. FLEETGUARD, et al.
    Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, at Nashville.
    June 29, 2009 Session.
    Nov. 3, 2009.
    Order Directing Publication Dec. 4, 2009.
    Frederick R. Baker, Cookeville, Tennessee, for the appellant, Fleetguard.

      Craig P. Fickling, Cookeville, Tennessee, for the appellee, Robbie Edwina El-more.
    Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and Joshua Davis Baker, Assistant Attorney General, for the appellee, Tennessee Department of Labor and Workforce Development, Second Injury Fund.
   MEMORANDUM OPINION

DONALD P. HARRIS, SR., J.,

delivered the opinion of the court,

in which CORNELIA A. CLARK, J., and JEFFREY S. BIVINS, SP. J., joined.

In this workers’ compensation case, the employee, Robbie Edwina Elmore, sustained compensable gradual injuries to her neck, shoulders and arms. The trial court made three separate awards, which totaled 122% to the body as a whole. On appeal, the employer, Fleetguard, and the Second Injury Fund contend that the trial court erred by failing to make a single award pursuant to the concurrent injury rule, and by finding that she was not permanently and totally disabled. We conclude that the concurrent injury rule is applicable. We therefore modify the judgment to award 65% permanent partial disability, and find it unnecessary to address the remaining argument.

Factual and Procedural Background

Robbie Edwina Elmore was sixty-five years old at the time of the trial. She had worked as an assembler for Fleetguard, a manufacturer of automotive equipment, since 1979. Prior to that time, her main work experience had been as a waitress. She had attended school through the eighth grade and also had attended a vocational school where she studied typing and related subjects. Prior to the events at issue in this case, she had a compensable injury with Fleetguard which had resulted in a workers’ compensation award of 35% permanent partial disability to both arms in 1973.

In January 2003, she gave her employer notice of a gradually occurring injury to her right hand. The “incident report” completed at the time describes the injury as: “Noticed lump center of right hand.” Fleetguard provided a panel of physicians. She initially chose Dr. Toney Hudson, but later requested a second panel, and transferred her care to Dr. Douglas Weikert. Dr. Weikert did not testify, but at least some of his records were attached as exhibits to the deposition of another physician. From those records, it appears that he diagnosed a duPuytren’s contracture of the right hand, which was not work-related, and also tendinitis of both elbows. He treated the tendinitis conservatively, primarily with injections.

On October 8, 2003, Ms. Elmore reported a second gradual injury to Fleetguard. The incident report completed at that time describes her condition as “left hand pain, elbow pain (both), arms and shoulders.” Fleetguard provided another panel of physicians, from which she selected Dr. Richard Williams, an orthopaedic surgeon. Dr. Williams first examined Ms. Elmore in January 2004. His diagnosis was “complex upper extremity pain,” a condition which “involves a variety of issues, including muscloskeletal problems, tendinitis, bursitis, and potential neurologic issues, such as nerve compression.” Because Dr. Weikert was already treating Ms. El-more’s elbow problems, Dr. Williams initially limited his treatment to her shoulders. He ordered conservative treatment, consisting of injections, medications, and work restrictions.

In April 2004, Dr. Williams performed a “mini-open” rotator cuff repair on Ms. El-more’s right shoulder. She reached maximum medical improvement from that surgery on September 30, 2004. He assigned an anatomical impairment of 13% to the body as a whole, and placed permanent restrictions upon her activities. Those restrictions were: “[A] ten-pound lift limit, no repetitive motions, no heavy push-pull, no above shoulder or overhead lifting, no lifting away from the body.”

Ms. Elmore filed suit against Fleetguard and the Second Injury Fund in June 2004. The complaint alleged: “On or about July 28, 2003, Plaintiff, Robbie Edwina Elmore, while employed for the Defendant, Fleet-guard, and while performing work arising out of and in the course and scope of her employment sustained an injury by accident to her neck and both upper extremities due to repetitive work activities at Fleetguard.” The complaint also alleged that “she has sustained a permanent injury to her neck and both upper extremities.” Fleetguard filed an answer to the complaint which denied that it had sufficient knowledge or information to form a belief as to the truth of those allegations.

In early 2005, Ms. Elmore filed a motion requesting that Dr. Weikert be relieved as a treating physician, and Dr. Williams be designated as her treating physician for all purposes. Her motion stated, in pertinent part: “On or about July 28, 2003, [Ms. Elmore] sustained a work-related injury to her neck and both upper extremities due to repetitive work as a result of her work activities with [Fleetguard].” The reason for the requested change was that Dr. Weikert was located in Nashville, nearly one hundred miles from Ms. Elmore’s residence, and it would be easier for her to receive all of her care from Dr. Williams, who was located nearby in Cookeville. The motion further stated that she wanted Dr. Williams to treat her “elbows and •wrists which are a part of this case.”

Fleetguard opposed the motion. It offered another panel of physicians, located nearer to Ms. Elmore than Dr. Weikert. It noted that Ms. Elmore had selected Dr. Weikert from a panel of physicians, and also stated that: “The hands/upper extremity injuries are a separate claim from the shoulder injuries, and they have been treated as such by the parties throughout this case.” The trial court granted Ms. Elmore’s motion, and Dr. Williams began treatment of Ms. Elmore’s elbows and wrists in April 2005. He concluded that she had lateral epicondylitis of both elbows. He also found tendinitis of both wrists, which may have progressed to carpal tunnel syndrome.

In March 2006, Dr. Williams performed a left shoulder arthroscopy and left carpal tunnel release. These procedures were performed simultaneously. On May 31, 2006, he performed an arthroscopic procedure on her right elbow and a right carpal tunnel release. These surgeries were also performed simultaneously. In July 2006, he performed an arthroscopic procedure on Ms. Elmore’s left elbow. No additional surgical procedures were performed after that date. Dr. Williams assigned additional impairments of 11% to the body as a whole for Ms. Elmore’s left shoulder problems; 15% (9% to the body as a whole) to each arm for carpal tunnel syndrome and epicondylitis. According to the AMA Guides to the Evaluation of Permanent Impairment, these impairments combine for a total of 36% to the body as a whole. It was Dr. Williams’ opinion that all of these conditions were related to Ms. El-more’s repetitive work activities. The permanent restrictions recommended by Dr. Williams for Ms. Elmore remained the same as those placed upon her after her right shoulder surgery.

Ms. Elmore was also referred to Dr. Robert Davis, a neurosurgeon, in November 2004 for evaluation of her neck. She related to him that she had been experiencing gradually increasing neck pain since July 2003. Dr. Davis’ diagnosis was cervicalgia or cervical radiculopathy. He referred her to her primary care physician for symptomatic treatment, and assigned a 5% permanent anatomical impairment. Combined with the impairments assigned by Dr. Williams, this results in a total impairment of 39% to the body as a whole. Dr. Davis was also of the opinion that her condition was caused by the repetitive nature of her work.

Ms. Elmore was off work after her first surgery in April 2004. When she returned, she was placed in a light duty position. The duties of this job involved placing small pieces of metal into a machine which then formed them into set screws. After one month in that position, she took a voluntary layoff, which was scheduled to last for approximately a year. In May 2005, she returned to work at a second light duty job. This job consisted of sitting in a chair and examining oil filters which passed by on a conveyor. The purpose was to determine that a gasket was properly placed on the filter. She was not required to handle the filters in any way. After two and one-half weeks, she left this position “because of a constant pain in [her] back every night.” Ms. El-more has not been employed, or sought employment since that time. She applied for and received social security disability benefits. Her husband suffers from Alzheimer’s disease, and Ms. Elmore devotes most of her time to assisting him with his activities of daily living.

Michael Galloway, a vocational evaluator, testified on behalf of Fleetguard. He performed academic testing of Ms. Elmore which showed that she was able to read on a high school level, and to perform arithmetic at a fourth grade level. She had no transferrable skills. Mr. Galloway believed that Ms. Elmore was permanently and totally disabled.

In light of the position which Fleetguard had taken in response to Ms. Elmore’s motion to transfer her medical care to Dr. Williams, the trial court found that the doctrine of judicial estoppel barred Fleet-guard from contending that Ms. Elmore had sustained a single injury, rather than multiple injuries. It found that the Second Injury Fund was not estopped from taking this position, however. The trial court nonetheless ruled that Ms. Elmore had suffered three separate injuries on three separate dates. It found that she was not permanently and totally disabled and awarded 55% permanent partial disability to “each upper extremity” for an injury of January 29, 2003; 50% permanent partial disability to the body as a whole for the injury to Ms. Elmore’s shoulders on October 8, 2003; and 17% permanent partial disability for the injury to her neck that it found she had sustained January 26, 2004. The total award for the three injuries amounted to 122% to the body as a whole. The trial court found Fleetguard was liable for 65% permanent partial disability and the Fund was liable for the remaining 57% permanent partial disability. Fleetguard has appealed, asserting that the trial court erred by making three separate awards for permanent partial disability, and by finding that Ms. Elmore was not permanently and totally disabled.

Standard of Review

The standard of review of issues of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of evidence is otherwise. Tenn.Code Ann. § 50-6-225(e)(2) (Supp. 2008). When credibility and weight to be given testimony are involved, considerable deference is given the trial court when the trial judge had the opportunity to observe the witness’ demeanor and to hear in-court testimony. Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d 164, 167 (Tenn.2002). Where the issues involve expert medical testimony that is contained in the record by deposition, determination of the weight and credibility of the evidence necessarily must be drawn from the contents of the depositions, and the reviewing court may draw its own conclusions with regard to those issues. Bohanan v. City of Knoxville, 136 S.W.3d 621, 624 (Tenn.2004); Krick v. City of Lawrenceburg, 945 S.W.2d 709, 712 (Tenn.1997); Elmore v. Travelers Ins. Co., 824 S.W.2d 541, 544 (Tenn.1992). A trial court’s conclusions of law are reviewed de novo upon the record with no presumption of correctness. Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn.2003); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.1997).

Analysis

1. Separate Awards

Fleetguard and the Fund contend that the trial court should have applied the “concurrent injury rule,” and made a single award, rather than three separate awards. In the circumstances of this case, this argument involves two distinct issues: (a) application of the doctrine of judicial estoppel, and (b) a factual determination as to whether Ms. Elmore’s injury, or injuries, resulted in “concurrent disabilities.”

(a) Judicial Estoppel. The trial court ruled that Fleetguard, but not the Fund, was barred by the doctrine of judicial estoppel from arguing that a single award should be made. The court stated:

“[Ms. Elmore] indicated that these were separate injuries, and [Fleetguard] agreed that these were separate injuries and stated thus in their pleadings or in their information that they provided in the case. The Court recognizes that Ms. Elmore relied upon the representation by [Fleetguard] that these were separate incidents. And when [Fleet-guard] tried to change their position ... [Ms. Elmore] was prejudiced as a result.”

These statements concern the proceedings on Ms. Elmore’s motion requesting that Dr. Williams be authorized to provide all of her care, described previously. On the basis of that ruling, the trial court made three separate awards, as described above.

The trial court erred in its application of judicial estoppel in this case. The Supreme Court has recently stated that “judicial estoppel is applicable only when a party has attempted to contradict by oath a sworn statement previously made.” Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 315 (Tenn.2009). (emphasis omitted). Statements made by counsel for the parties in connection with Ms. Elmore’s motion, Fleet-guard’s response to that motion, or in other pleadings, were unsworn, and therefore do not provide a basis for application of judicial estoppel. The only sworn statements remotely related to the issue are contained in Fleetguard’s responses to Ms. Elmore’s interrogatories. Such statements likewise do not provide a basis for raising judicial estoppel. See Tenn. R. Evid. 803(1.2) advisory commission comments.

In addition, it must be noted that Ms. Elmore explicitly alleged in her original complaint, and in her motion to have her medical care transferred to Dr. Williams, that she had sustained a single injury. Her position at trial and on appeal is that she suffered three separate and distinct injuries. We can find no basis in the record, to permit her to change her position on the issue while forbidding the opposing party from doing so. We therefore hold that the Fleetguard was not barred from arguing that the concurrent injury rule applies in this case.

(b) Concurrent Injury Rule. The injuries at issue in this case are all gradually occurring injuries, caused by Ms. El-more’s repetitive use of her hands and arms in the course of her employment. Fleetguard argues that the trial court should have applied the concurrent injury rule found in Tennessee Code Annotated section 50-6-207(3)(C) (2008). That Code section provides in pertinent part: “When an employee sustains concurrent injuries resulting in concurrent disabilities, such employee shall receive compensation only for the injury that produced the longest period of disability....” As Fleetguard points out, several recent decisions of Workers’ Compensation Appeals Panels have consistently held that the concurrent injury rule applies when gradual injuries to different body parts are caused by work activity conducted over the same time period.

In Lane v. Perdue Farms, Inc., No. M2008-00235-WC-R3-WC., 2009 WL 1099276 (Tenn.Workers Comp.Panel Apr.24, 2009), the employee suffered gradually occurring hand and shoulder injuries. The Workers’ Compensation Panel found that the employee had sustained gradual injuries to different body parts “caused by the same activity conducted over the same time period” and that the concurrent injury rule applied. Id. at *3.

In Ayers v. Cracker Barrel Old Country Store, Inc., No. E2007-00077-WC-R3-WC, 2008 Tenn. LEXIS 775 (Tenn. Workers’ Comp. Panel June 11, 2008), review denied, 2008 Tenn. LEXIS 745 (Sept. 26, 2008), the employee filed separate suits for carpal tunnel injuries to her hands and tarsal tunnel injuries to her feet. The panel held the trial court correctly held these injuries to be concurrent because “both [injuries] were caused gradually by the duties of her job, carried out over the same period of time.” Id. at *13. The panel rejected the argument that her injuries were separate because they were caused by different activities, i.e. the injuries to her hands by repetitive use of her hands and the injuries to her feet by standing and moving about. Id. at *15.

In Clardy v. TRW Commercial Steering Division, No. M2006-01261-WC-R3-WC, 2007 WL 4730083 (Tenn.Workers Comp.Panel Nov.6, 2007), the employee sustained gradual injuries to his right shoulder, right arm and thumb, and left arm. The panel found the evidence was “to the effect that these gradual injuries were caused by the same activity, conducted over the same period, and manifested themselves at more or less the same time.” Id. at *5. Consequently, the panel held the concurrent injury rule applied and reversed the trial court’s awards for separate injuries. Id.

In Reagan v. Transcontinental Insurance Co., No. M2006-00009-WC-R3-CV, 2006 WL 3804402 (Tenn.Workers Comp.Panel Dec.27, 2006), a trial court made separate awards for a gradually occurring left hand injury that manifested itself in the Spring of 2003 and a gradually occurring left shoulder injury that first manifested itself in August 2003. An examining physician testified both injuries were the result of the increased use of the employee’s left hand and arm due to a prior injury to her right shoulder. The Workers’ Compensation Appeals Panel reversed the separate awards, holding that section 50 — 6—207(3)(C) required a single “body as a whole” award encompassing both gradual injuries. Id. at *4.

Ms. Elmore argues that the injuries are separate and distinct because they arose at different times. She cites Scales v. City of Oak Ridge, 53 S.W.3d 649 (Tenn.2001) in support of her position. In that case, the employee had carpal tunnel syndrome. After she had surgery for that condition, she returned to work. She then tripped and fell, injuring her back. The employer argued that a single award should have been made. Both the trial court and the Supreme Court disagreed, finding the injuries to be separate. Id. at 652-53. Scales differs from this case in that Ms. Scales’ second injury was the result of a specific, identifiable, traumatic event. In contrast, all of Ms. Elmore’s injuries in this case occurred gradually as a result of the same repetitive activities.

During his deposition, Dr. Williams discussed the interrelationship of the gradual injuries at issue here. He stated:

My perspective on a problem, or problems such as Ms. Elmore has, is that I have an umbrella term which I call complex upper extremity pain and, as I mentioned, it can involve a number of entities, which can each, in its own right, become the preeminent pain that a patient experiences at a given time and there is a tenuous interrelationship certainly of all of these conditions because they all exist in the same upper extremity in the same person who is doing the same types of repetitive motion, but I don’t think it’s wrong at all to consider them as separate conditions, and I guess, if you will, separate injuries.
There is a semantic issue here because I think it’s — 'we think of an injury typically as something where someone trips and falls, and puts out their wrist and breaks the bone. That’s an acute injury and very well-defined. It’s very easy to understand.
Something like carpal tunnel syndrome may be a progressive problem precipitated by tendinitis, and as it worsens, the patient may initially have some hints of discomfort, maybe a little tingling. Maybe it comes and goes, but they don’t really think much of it until it reaches a certain critical point, and everybody has a different threshold, I guess, if you will, of concern.
* * *
It’s difficult to pinpoint a calendar date with cases such as carpal tunnel, and even in shoulder impingement, or in tennis elbow....

The injuries for which Ms. Elmore seeks workers’ compensation benefits were reported to Fleetguard at the same time. Her initial injury report to Fleetguard was dated January 29, 2003, and states that she “noticed [a] lump center of right hand.” That condition, however, was found to be not work-related. Her second injury report, in October 2003, referred to “left hand pain, elbow pain (both), arms and shoulders.” This report is the only report of the injuries for which she seeks benefits and is supported by her complaint for benefits which alleges that, on July 28, 2003, she “sustained an injury by accident to her neck and both upper extremities due to repetitive work activities at Fleet-guard.”

The first physician to evaluate Ms. El-more for her work-related conditions was Dr. Hudson on July 31, 2003. His notes state that she gave him a history of “painful pressure” in her right hand beginning in January 2003 which she noted “while picking up some [parts] ... She did not notice any further problems until about two to three weeks ago, when she again noticed some discomfort in her right hand.” Dr. Hudson found that she had duPuytren’s contracture, a condition which was not related to her work. He also ordered nerve conduction studies and x-rays which revealed mild carpal tunnel syndrome and mild degenerative arthritis of the cervical spine.

Dr. Weikert began to treat Ms. Elmore in September 2003. In addition to Dr. Hudson’s diagnoses, he found that she had tendinitis of both elbows. He treated her with physical therapy and injections.

Dr. Williams first examined Ms. Elmore on January 13, 2004. His note states that Ms. Elmore told him: “Her [bilateral shoulder] pain has been gradually worsening since July of this year.” The note states that Dr. Williams explained to Ms. Elmore that “[he frequently sees] an overlap between lateral epicondylitis and shoulder weakness and that [he thinks] shoulder weakness may precipitate lateral epicon-dylitis in many cases, as it forces the individual to rely more heavily on elbow manipulation when the shoulders are weak and painful.” In his note of his next contact with Ms. Elmore, on February 10, 2004, he commented that “[he believes] the neck is probably playing a role as well.” Ms. Elmore was referred to Dr. Davis for evaluation of her neck in November 2004. At that time she gave a history of “mechanical neck pain and right extremity pain which she relates to an on-the-job injury with repetitive lifting in July 2003.”

Our assessment of the medical evidence in this case is that the histories given by Ms. Elmore to the various physicians who treated her indicates she began experiencing significant symptoms with her various injuries in July 2003. It is clear from Dr. Williams’ testimony that all of these symptoms were the result of anatomical conditions caused by the same set of repetitive work activities carried out by Ms. Elmore over the course of her employment. The medical treatment for those conditions included a variety of procedures. Beginning in April 2004, those procedures included multiple surgeries. After that time, she was unable to return to work, other than two brief attempts at light duty.

We find Ms. Elmore sustained gradual injuries that were caused by the same activity, conducted over the same period, and manifested themselves at more or less the same time. As have the other recent Workers’ Compensation Panels cited above, we conclude that the concurrent injury rule applies in this case. Accordingly, the trial court should have made a single award of permanent partial disability benefits apportioned to the body as a whole, covering all of Ms. Elmore’s injuries.

Having reached that conclusion, we find that it is not necessary to address Fleetguard’s contention that the trial court erred by failing to find that Ms. Elmore was permanently and totally disabled. Fleetguard’s position is based upon Tennessee Code Annotated section 50-6-207(4)(A)(i), which limits awards of permanent total disability to workers who sustain compensable injuries after the age of 60 to 260 weeks of benefits. In Vogel v. Wells Fargo Guard Services, 937 S.W.2d 856, 862 (Tenn.1996), the Supreme Court held that, in order to avoid an irrational result, the statute would be interpreted to limit awards of permanent partial disability in a similar fashion.

In this case, Ms. Elmore has sustained injuries to both arms, both shoulders and her neck. The medical impairments alone from those injuries amount to 39% to the body as a whole. The trial court explicitly found that she is unable to work at any full-time job. She has limited education, and her work experience is all in unskilled jobs. Based upon these facts, we have no difficulty in finding that her work-related injuries have resulted in a permanent partial disability of at least 65% to the body as a whole, which is the maximum permissible award. A finding of permanent total disability would not affect the amount of the award. Further, if Ms. Elmore were found to be permanently and totally disabled, Fleetguard would remain liable for the entire award, pursuant to Tennessee Code Annotated section 50-6-208(a). See, Roper v. First Presbyterian Church, No. M2007-02287-WC-R3-WC, 2008 WL 5101006, *3-4 (Tenn.Workers Comp.Panel Dec.4, 2008).

Conclusion

The judgment of the trial court is modified to award 65% permanent partial disability to the body as a whole to Ms. Elmore, to be paid entirely by Fleetguard. The Second Injury Fund is dismissed from this action without liability. The judgment of the trial court is affirmed in all other respects. The case is remanded to the trial court for the entry of an appropriate order. Costs are taxed to Robbie Edwina Elmore, for which execution may issue if necessary.

JUDGMENT

PER CURIAM.

This case is before the Court upon the entire record, including the order of referral to the Special Workers’ Compensation Appeals Panel, and the Panel’s Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference.

Whereupon, it appeals to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and

It is, therefore, ordered that the Panel’s findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court.

Costs will be paid by Robbie Edwina Elmore, for which execution may issue if necessary.

IT IS SO ORDERED.

ORDER

PER CURIAM.

It appears to the Court that the Judgment was filed in this matter on November 3, 2009, in which the panel’s findings of fact and conclusions of law were adopted and affirmed and the decision of the Panel made the judgment of the Court. The Court directs the publication of the opinion of the Special Workers’ Compensation Appeals Panel at Nashville, June 29, 2009, Session.

IT IS SO ORDERED.

      . This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law.

      . Tenn.Code Ann. § 50-6-207(3)(C) (2008).

      . Ms. Elmore’s emphasis, and that of the trial court, on the question of whether there was a "single injury,” or "separate injuries,” is misplaced. The appropriate question is whether or not the injuries were "concurrent” under Tennessee Code Annotated section 50-6-207(3)(C), and therefore required a single award of benefits.