author: GARY D. WITT, Judge.

text:
    Robert ADAMS, Appellant, v. ONE PARK PLACE INVESTORS, LLC, and, William Foote, Respondents.
    No. WD 71652.
    Missouri Court of Appeals, Western District.
    June 29, 2010.

      Joseph R. Colantuono and Katherine I. Tracy, Overland Park, KS, for appellant.
    Curtis E. Woods and Jason R. Scheiderer, Kansas City, MO, for respondents.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

Robert Adams filed suit against One Park Place Investors, LLC (“OPPI”) and William Foote based on Adams’s claims against those parties pertaining to the termination of his employment as the Project Director for a construction and development project converting the BMA Tower in Kansas City, Missouri, from an office building into residential condominiums. For the reasons explained below, we affirm in part and reverse in part.

Factual Background

In November of 2004, Adams and OPPI allegedly entered into an oral contract, wherein OPPI agreed to employ Adams as the Project Director for the residential condominium project. William Foote, as the Managing General Partner of OPPI, negotiated the contract on behalf of OPPI. Subsequently, in January 2007, Foote, on behalf of OPPI, notified Adams that his employment with OPPI was terminated immediately.

On May 11, 2007, Adams filed the instant lawsuit in Jackson County Circuit Court against OPPI and Foote. As pled in his First Amended Petition, Adams brought three counts, all of which sought monetary relief. Count One was a breach of contract claim brought solely against OPPI. Count Two was an unjust enrichment claim brought exclusively against OPPI. Count Three was a “misrepresentation” claim against OPPI and Foote pursuant to the California Labor Code, Section 970.

In part because this case was assigned at differing times to three different judges, the procedural history pertaining to the dispositive motions filed by OPPI is somewhat convoluted.

On January 29, 2008, OPPI filed a motion for summary judgment as it pertained to Counts One and Two. After extensive briefing by the parties, the trial court granted this motion in part by entering a judgment on June 26, 2008, dismissing Count One, the breach of contract claim against OPPI. However, the trial court denied the motion as it pertained to Count Two, the unjust enrichment claim against OPPI.

On August 26, 2008, Adams filed its First Amended Petition. Thereafter, on January 5, 2009, OPPI and Foote filed its Motion to Dismiss Count Three of the Amended Petition.

After various briefing by the parties, the trial court entered an order on February 2, 2009, dismissing Count Three of Adams’s Petition as it pertained to both OPPI and Foote. Additionally, in this same order, the Court “reinstituted” Count I of Adams’s Petition “as a valid and pending claim by plaintiff.”

On March 4, 2009, the trial court entered another order denying Adams’s motion to reconsider its ruling in dismissing Count Three of Adams’s Petition.

On September 4, 2009, OPPI filed its “Renewed Motion for Summary Judgment,” which sought judgment against Adams’s claims as it pertained to Count One and Two of his Amended Petition. After various briefing by the parties, the trial court entered its judgment on September 22, 2009, that, inter alia, granted OPPI’s motion for summary judgment as it pertained to Counts One and Two of the Petition. However, this judgment did not rule on or dispose of Count Three of Adams’s Petition against Foote.

On May 11, 2010, the trial court issued its nunc pro tunc judgment, which stated that the “September 22, 2009 Judgment is amended to dispose of all claims, including Count I — III, against all parties, including [OPPI and Foote].”

Adams now appeals.

Analysis

I. Motion For Summary Judgment

In Point One, Adams argues that the trial court erred in granting summary judgment as it pertained to his contract claim in light of the fact it erroneously applied “Missouri law to Adams’ breach of contract claim because California law applies in that Missouri’s conflict of laws principles require application of California law.”

“We review a circuit court’s summary judgment de novo.” Ascoli v. Hinck, 256 S.W.3d 592, 593 (MoApp. W.D.2008) (citing ITT Commercial Fin. Coup. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). “Summary judgment is proper only when the parties are not genuinely disputing material factual issues and when the moving party is entitled to judgment as a matter of law.” Id. “When we review a circuit court’s summary judgment, we view the record in the light most favorable to the party against whom the circuit court entered judgment.” Id. at 593-94.

“Conflict of laws questions are to be answered by applying our own state’s conflict of laws doctrines.” Farmers Exch. Bank v. Metro Contracting Sens., Inc., 107 S.W.3d 381, 391 (MoApp. W.D.2003). In resolving a conflict of laws question, Missouri courts rely on the Restatement (Second) of Conflict of Laws. Id. Specifically, in contract cases, Missouri courts have adopted the Restatement (Second) of Conflict of Laws, Section 188, test that states that “the law of the state where the predominant contract interests lie will be applied.” Ranch Hand Foods, Inc. v. Polar Pak Foods, Inc., 690 S.W.2d 437, 441 (Mo. App. W.D.1985).

Section 188 provides that the following factors are to be considered:

(a) the place of the contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicile, residence, nationality, place of incorporation and place of business of the parties.

RESTATEMENT (SECOND) CONFLICT OF LAWS § 188 (1971).

“In considering these five factors, we also apply the choice of law principles of section 6 of the Restatement (Second) Conflict of Laws.” Accurso v. Amco Ins. Co., 295 S.W.3d 548, 552 (Mo.App. W.D. 2009) (citing Armstrong Bus. Sews., Inc. v.H&R Block, 96 S.W.3d 867, 872 (Mo. App. W.D.2002)). These principles are the following:

(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Id. at 553.

Here, in granting summary judgment in favor of OPPI, the trial court found that Missouri law applied, and in so concluding the court stated the following:

The parties agree the employment agreement at issue was negotiated and made in California. However, the remaining factors weigh in favor of the use of Missouri law. The subject matter of the contract — the Project — was located in Missouri. Adams worked on the Project from California for a time, but his efforts — making contacts and gathering information — were concentrated in Missouri. Adams traveled to Missouri numerous times to conduct business concerning the Project. Eight-five percent of his time in 2004 was spent in Missouri. In early 2005, he moved to Missouri and according to his Amended Petition, he currently resides here. OPPI’s principle (sic) place of business is Missouri. Adams paid Missouri income taxes. Clearly, Adams’ place of employment was Missouri. Finally, the termination of the contract at issue- — the alleged breach — took place in Missouri. The predominant contract interests are in Missouri, and Missouri law should be applied.

In applying the five elements of Section 188 to the instant case, it is apparent that a majority of these factors compel that Missouri law should be applied to the instant dispute. To begin with, as it pertains to both “the place of performance” of the contact and “the location of the subject matter of the contract,” there can be no dispute that both elements suggest that Missouri law should apply because Missouri is where the relevant building was located that was transformed into condominiums as contemplated by the contract. While he argues on appeal that a small portion of his work on this project took place in California, Adams does not dispute the trial court’s finding that his work was “concentrated in Missouri.” Simply put, Adams has failed to demonstrate that the above findings and conclusions are somehow in error.

Moreover, as it pertains to “the domicile, residence, nationality, place of incorporation and place of business of the parties,” Adams contends that California is his legal residence because this is where he lived while negotiating the relevant contact and this is where he returned to “after his termination.” But these arguments ignore the fact Adams averred in his Petition that he “is an individual residing in Kansas City, Jackson County, Missouri.” When determining residency pursuant to Section 188, we attach significance to where the individual or entity resided when the Petition was filed. Rivers v. Rivers, 21 S.W.3d 117, 122 (MoApp. W.D. 2000). Adams further contends that he “only resided in Kansas City because Foote (OPPI) required him to re-locate to Kansas City as part of the employment offer,” but he fails to cite any supporting authority that this fact is relevant to our analysis.

Furthermore, Adams contends that “OPPI’s primary business address is in Newport Beach, California.” Again, Adams ignores that his own pleadings belie this assertion because he averred that OPPI “is a limited liability company organized under the laws of the State of Delaware in November of 2004, and authorized to transact business in the State of Missouri, with a 'principle [sic] place of business in Kansas City, Jackson County, Missouri.” (Emphasis added). While it is true that Foote resided in California during the relevant period of time in question, we believe this fact carries less significance because (1) Foote was merely an employee of OPPI and (2) Adams alleged that he entered into the relevant contract with OPPI, not Foote.

The only factors that weigh in favor of applying California law are: California was the place where the contract was entered into, and California was the place where the contract was negotiated. Therefore, we believe the trial court correctly concluded that the other factors as outlined above outweighed the fact that contract was negotiated and entered into in California and that, therefore, Missouri law applied pursuant to Section 188.

Finally, Adams argues that the trial court improperly focused on the payment of income taxes in Missouri and the occurrence of the breach in Missouri as factors in its decision to apply Missouri law and that these issues don’t fit within the factors to be considered under Section 188. But in making this argument, Adams ignores the fact that this Court has previously held that the trial court is allowed to consider other factors beyond those outlined in Section 188. Accurso, 295 S.W.3d at 552. Specifically, as outlined above, there are seven other factors to consider in section 6 of the Restatement (Second) Conflict of Laws. Id. at 553. For example, in considering the last factor outlined in Section 6 (the “ease in the determination and application of the law to be applied”), we cannot conclude that the trial court somehow erred in considering the undisputed fact that Adams paid taxes in Missouri and the breach of the contract occurred in Missouri.

For all of these reasons, Point One is denied.

Adams argues in Point Two that the “trial court erred in granting summary judgment on Adams’ breach of contract claim because, under California law, the statute of frauds is not a defense to Adams’ breach of contract claim.” (Emphasis added.) This Point Relied On need not detain this Court because Adams makes clear that his argument is predicated on the assumption that California law should apply to the instant dispute. However, because the trial court did not err in concluding that Missouri law applied in granting summary judgment for the reasons outlined at length in Point One, Adams’s argument that California law requires reversal must fail.

Point Two denied.

In Point Three, Adams argues that “the trial court erred in granting summary judgment on Adams’ breach of contract claim because Adams’ contract was not barred by the statute of frauds under California or Missouri law, in that the contract was capable of performance within one year.”

When granting OPPI’s motion for summary judgment as it pertained to Adams’s breach of contract claim, the trial court found the following:

Contracts such as the one at issue here are governed by the Missouri Statute of Frauds which requires any such contract to be in writing and capable of being performed in one year. Section 432.010. Adams has admitted his employment contract was not in writing and the terms were not capable of completion within one year, but he argues OPPI should still be held liable under a theory of promissory estoppel. Courts have held, however, this defense is barred from application when the underlying contract violates the Missouri Statute of Frauds. Therefore, his breach of contract claim fails as a matter of law and must be dismissed.

Adams does not dispute that if the oral contract in question was not capable of being performed within one year it is barred pursuant to the Statute of Frauds. Section 432.010. Adams contends on appeal that the evidence before the trial court demonstrated that the contract in question was in fact “capable of performance within one year.” However, Adams’s position on appeal is inconsistent and untenable in light of the express admissions he made before the trial court.

Prior to filing its motion for summary judgment, OPPI served Adams with requests for admissions pursuant to Rule 59.01(a). That discovery included two relevant requests for admissions, and Adams’s responses follow each individual request:

1. The verbal agreement alleged in paragraphs 8 and 9 of the Petition was not to be performed within one year from the time the alleged verbal agreement was made.
Response: Admitted.
2. The verbal agreement alleged in paragraphs 8 and 9 of the Petition could not be performed within one year from the time the alleged verbal agreement was made.
Response: Admitted.

On appeal, Adams fails to directly address the fact that he expressly admitted that the contract in question could not be performed within one year. “To be entitled to a summary judgment, Plaintiff was required to establish that it had a right to a judgment as a matter of law by showing, in the manner provided in Rule 74.04, that there was no genuine dispute as to those material facts upon which it would have the burden of persuasion at trial.” Dana Commercial Credit Corp. v. Cukjati, 880 S.W.2d 612, 615 (Mo.App. S.D.1994). “Matters admitted pursuant to a request for admissions under Rule 59.01 may be used to make that showing.” Id. (citing Rule 74.04(c)).

Adams’s previous admissions are dispos-itive of this Point Relied On. Adams argues on appeal that he in fact denied that the contract could not be performed within one year and denied that it was not capable of performance within one year. To support this assertion, Adams cites to his memorandum in opposition to OPPPs motion for summary judgment, which attempted to controvert that which he had previously admitted. Attached to Adams’s memorandum was Exhibit A, which purported to be his “Supplemental Responses to Defendant’s Requests for Admissions” that attempts to rescind his previous admissions in this regard.

Had he wished to withdraw or amend his previous admissions, Adams was required to file a motion to that effect and to have that motion granted by the trial court. Rule 59.01(b). Adams failed to file such a motion and, therefore, was not entitled to any such relief from his previous admissions as a matter of law. Dynamic Computer Solutions, Inc. v. Midivest Mlctg. Ins. Agency, L.L.C., 91 S.W.3d 708, 715 (Mo.App. W.D.2002). “The matters admitted under the rule bind the party to whom the requests were addressed and eliminates the need for further proof of the matters admitted.” Dynamic Computer, 91 S.W.3d at 715.

For all of these reasons, Point Three is denied.

In Point Five, Adams argues that the trial court erred in granting summary judgment on his unjust enrichment claim “because a genuine issue of material fact exists regarding whether OPPI unjustly retained a benefit Adams conferred to it without paying its reasonable value, in that OPPI terminated Adams prior to completion of the project but retained the investment rights to the project.”

We set forth the following applicable principles for an unjust enrichment claim in Executive Board of Missouri Baptist Convention v. Windermere Baptist Conference Center, 280 S.W.3d 678 (Mo.App. W.D.2009):

The elements of unjust enrichment are: (1) that the defendant was enriched by the receipt of a benefit; (2) that the enrichment was at the expense of the plaintiff; and (3) that it would be unjust to allow the defendant to retain the benefit. The third element, unjust retention of the benefit, is considered the most significant and the most difficult of the elements. Mere receipt of benefits is not enough, absent a showing that it would be unjust for the defendant to retain the benefit.

Id. at 697 (citations and quotations omitted).

In dismissing Adams’s unjust enrichment claim, the trial court found that the claim failed “because OPPI was not enriched at Adams’ expense” in light of the fact that “OPPI retained no benefit after Adams’ termination” and also because “OPPI paid Adams according to their agreement.” In so concluding, the trial court made the following findings of fact, which Adams does not dispute on appeal:

Adams was paid $180,000 per year plus vehicle allowance and costs while he acted as project manager. Adams admits he was reimbursed for the expenses he incurred in connection with the Project, and he did not pass up other employment or investment opportunities as a result of the Project. Adams remains entitled to fifty percent of any profits from the Project, even though he was terminated as project manager. Adams also testified the payment to him for the value of the services he provided as project manager, while he was project manager, was reasonable.

Without any supporting authority, Adams argues that whether he was fairly compensated for his employment with OPPI “is not relevant to the issue of whether OPPI unjustly retained the investment opportunity ” and therefore “the trial court should not have considered Adams’ wages as Project Manager as reasonable payment for the remaining 5 years worth of investment opportunity that he did not receive.” (Emphasis added). We disagree.

To have a viable unjust enrichment claim, Adams was required to demonstrate that OPPI was unjustly enriched at the expense of Adams. Executive Bd. of Mo. Baptist Convention, 280 S.W.3d at 697. Adams states that OPPI was unjustly enriched because “OPPI unjustly retained the investment opportunity.” Even when reviewing the record in the light most favorable to Adams, it is clear that the “investment opportunity” that Adams speaks of must mean his labor as Project Manager, for which he was indisputably compensated.

Specifically, Adams has made no claim that OPPI was unjustly enriched because he deposited resources, other than his labor, into the former BMA building. This is in contrast to Zipper v. Health Midwest, where Dr. Zipper, after losing staff privileges with a medical center corporation brought, inter alia, an unjust enrichment claim against the corporation. 978 S.W.2d 398, 412-13 (Mo.App. W.D.1998). Specifically, prior to being discharged by the corporation, Dr. Zipper personally “expended approximately $125,000 renovating” the corporation’s Medical Building and “Dr. Zipper introduced evidence establishing that the building was worth $150,000 before the renovations and between $230,000 and $270,000 after the renovations.” Id. Based on the fact that the corporation refused “to sell the building to Dr. Zipper or compensate him for the renovations established] circumstances in which retention without payment would be inequitable and, thus,” this Court concluded that “Dr. Zipper has adduced sufficient facts to defeat summary judgment on the theory of unjust enrichment.” Id.

Simply put, Adams makes no allegation in the instant lawsuit similar to that in Zipper. The gravamen of Adams’s claim is that “OPPI terminated Adams approximately 5 years prior to Adams realizing the full, reasonable value of the investment opportunity he provided to OPPI because OPPI’s projected date for selling all of the condo units is approximately February 2012.” But Adams does not dispute on appeal that pursuant to his agreement with OPPI he was an employee at will. Had he wished to ensure his employment with OPPI through 2012, Adams should have sought to negotiate a written contract that expressly stated those terms.

Finally, in granting summary judgment on Adams’s unjust enrichment claim, the trial court made an express finding that OPPI’s conduct was not wrongful. To determine whether it would be unjust for the defendant to retain the benefit, the trial court may consider whether any wrongful conduct by the defendant contributed to the plaintiffs disadvantage. Graves v. Berkowitz, 15 S.W.3d 59, 61 (Mo.App. W.D.2000). Because Adams has failed to demonstrate that there were material facts in dispute to demonstrate that trial court’s above findings and conclusions were somehow in error, we deny this Point.

In Point Six, Adams argues that the trial court erred in granting OPPI’s motion for summary judgment because the “motion was not fully briefed as required by Missouri Rule of Civil Procedure 74.04(c)(3) and (6), in that Adams’ response to the [ ] motion included additional material facts that OPPI did not respond to prior to the trial court ruling on the renewed motion.” We disagree.

Here, there can be no doubt that after Adams filed its response in opposition to OPPI’s motion for summary judgment, OPPI had a right to file a reply in support of the motion for summary judgment. See Rule 74.04(c)(3). However, prior to OPPI filing such a reply, the trial court entered an order granting OPPI’s motion for summary judgment.

Adams argues that “Missouri courts have recognized that the ‘terms of Rule 74.04(c) are mandatory and failure to comply requires reversal,’ ” but he ignores the fact that both of the cases he relies on in this appeal illustrate that reversal is only required upon a showing of prejudice. (Quoting Murphy v. Middleton, 256 S.W.3d 159,162 (Mo.App. S.D.2008)).

In Murphy, after plaintiff submitted its evidence at trial, defendants made an oral motion for summary judgment that the trial court granted. 256 S.W.3d at 161-62. On appeal, the Southern District acknowledged that “clearly, none of the requirements of Rule 74.04(c) were complied with” because among other things defendants “did not submit a written motion for summary judgment with any undisputed facts” in addition to the fact that Plaintiff “was not given notice or time to respond.” Id. at 162 (emphasis added). “Despite the failure to comply with Rule 74.04(c),” the Southern District concluded that the trial court did not commit reversible error because the error was merely “technical” since “the result was a judgment on the merits under Rule 73.01(b)” in light of the fact “[t]he court made its ruling based upon the evidence that it heard and ruled under the facts and the law that [plaintiff] had not made her case.” Id. at 162-63. Hence Murphy was not a summary judgment case at all, but a ruling on a Motion for Judgment (or Directed Verdict) at the Close of Plaintiffs Evidence.

Similarly, Adams’s reliance on Motley v. Henske is misplaced. 704 S.W.2d 298, 299 (Mo.App. E.D.1986). In Motley, during a discovery motion hearing, plaintiff “made an oral motion for summary judgment,” and in response the trial court “denied [defendant’s request for an opportunity to respond to the motion and immediately granted summary judgment in favor of [plaintiff] on the issue of liability alone.” Id. Defendant then requested that the trial court “enter Findings of Fact and Conclusions of Law” on the summary judgment motion, and that “the court comply with Rule 74.04(d) by entering its order specifying which facts are uncontroverted.” Id. Because “[t]hese requests were ignored by the court,” the Eastern District concluded that the court’s ruling upon the motion for summary judgment was “prejudicially erroneous.” Id.

Here, Adams fails to demonstrate any prejudice, even if we assume there was a procedural abnormality in the trial court’s grant of summary judgment. Adams’s sole attempt to demonstrate prejudice is predicated on his argument that his motion in opposition to summary judgment contained “additional statements of fact” that “if uncontroverted, would defeat” OPPI’s motion for summary judgment. Similarly, Adams argues that if OPPI had controverted these statements of fact, “then summary judgment would be completely improper because genuine issues of material fact would exist.” Id. To support this claim, Adams cites to the following two “additional uncontroverted material facts” contained in his response:

39. Adams understood that he would be the Project Manager for the duration of the Project “as long as Mr. Foote was receiving compensation from the project” and that when Foote’s compensation for any role he had in the Project, outside of his profit share ended, Adams’ compensation would end at the same time, (regarding the statute of frauds defense to Adams’ Contract).
42. Adams would not have arranged for Foote’s participation in the Project or relocated to Kansas City from California if Foote had not agreed to employ Adams as the Project Manager for the duration of the Project, (regarding Adams’ unjust enrichment claim).

Neither of these two “additional uncon-troverted material facts” demonstrate that Adams was somehow prejudiced in this matter because they were immaterial to the trial court’s rationale for granting summary judgment. Accordingly, regardless of whether OPPI disputed these “additional uncontroverted material facts,” the trial court would not have been precluded from granting OPPI’s summary judgment motion.

Adams contends that this first “uncon-troverted material fact” (# 39) somehow would have precluded OPPI from asserting a statute of frauds defense to his breach of contract claim, yet Adams fails to explain why such is the case. As explained in detail in Point Three, the trial court did not err in ruling that the statute of frauds acted to bar the breach of contract claim in light of the fact that Adams admitted that the contract could not be completed within a year. As such, what Adams now suggests he “understood” to be the terms of the contract is irrelevant because he had already conceded the issue for the purposes of the litigation.

Likewise, we find it difficult to discern, without any explanation from Adams on appeal, why this second “uncontroverted material fact” would have precluded the trial court from granting OPPI’s motion for summary judgment as it pertained to the unjust enrichment claim. As explained in detail in Point Five, the only resource Adams conferred to OPPI was his labor, which he did not dispute he was fairly compensated for via his salary from OPPI. To quote the trial court, “[c]ertainly a com-pensable claim would exist had Adams continued working as project manager without compensation ... [b]ut, those are not the allegations presented here.”

For all of the aforementioned reasons, Adams has failed to demonstrate any prejudice that would entitled to him relief on appeal.

Point Six is denied.

II. Motion To Dismiss

Finally, in Point Four, Adams argues that the trial court erred in dismissing Count III of his Petition (pursuant to Section 970 of the California Labor Code) based on OPPI’s motion to dismiss because the Court improperly found that it was time barred as a matter of law.

“The standard of review for a trial court’s grant of a motion to dismiss is de novo.” Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). “When this Court reviews the dismissal of a petition for failure to state a claim, the facts contained in the petition are treated as true and they are construed liberally in favor of the plaintiffs.” Id. “If the petition sets forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim.” Id.

The trial court, in dismissing Count III of Adams’s Petition, found that California’s applicable one year statute of limitations period applied and noted “that the Sec. 970 claim was not asserted within the one year limitation” In arguing that the trial court’s dismissal of Count III was proper, OPPI cites to our holding in Alvarado v. H & R Block, Inc., 24 S.W.3d 236 (MoApp. W.D. 2000), for the proposition that when a cause of action “originates” in a state other than Missouri, Missouri applies the foreign state’s statute of limitations through Missouri’s borrowing statute. While this is a true proposition of law, the fatal flaw in OPPI’s argument is that it does not even attempt to analyze where Adams’s claim originated pursuant to the law as outlined in Alvarado:

In ruling on statutes of limitations issues, the law of the forum state is applied. Missouri, the forum, considers statutes of limitations issues procedural, and therefore governed by Missouri law.... When a cause of action ‘originates’ in a state other than Missouri, however, Missouri applies the foreign state’s statute of limitations through Missouri’s borrowing statute. If that state’s statute of limitations bars the action, Missouri’s borrowing statute bars the action in Missouri as well....
Missouri’s borrowing statute, Section 516.190, provides: “Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.” “Originated” as used in § 516.190 is synonymous with “accrued” as used in § 516.100.
Section 516.100 states: “for the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment....” In applying this test, the courts have held that a cause of action accrues when an injury is complete as a legal injury. This occurs when the plaintiff could have successfully maintained the action....
Section 516.100 not only determines when a cause of action accrues but also where it accrues for the purpose of applying the borrowing statute, § 516.190. The cause arises where and when the final significant event that is essential to a suable claim occurs.

Id. at 241^42 (citations omitted).

In Alvarado, taxpayers brought suit against H & R Block, alleging it performed services in a negligent and fraudulent manner after the Internal Revenue Service assessed penalties against taxpayers. Id. at 239. We concluded that taxpayers’ claims were barred by the applicable California statute of limitations because the “Alvarados cause of action accrued where the Alvarados ascertained that they had sustained damages in the form of assessed penalties by the IRS pertaining to the preparation of their tax returns [and t]he Alvarados received the IRS notices, from which they were capable of ascertaining that they had sustained damages, while they were living in California.” Id. at 242.

Therefore, pursuant to Alvarado, the dispositive analysis on this issue is where Adams’s claim originated and accrued, i.e., when and where Adams’s damages were sustained and capable of ascertainment. Id.; Wright v. Campbell, 277 S.W.3d 771, 774 (Mo.App. W.D.2009) (“‘Because a cause of action originates where it accrues, § 516.100 not only determines when a cause of action accrues but where it accrues for purposes of determining whether the borrowing statute operates to bar an action.’ Accordingly, a cause of action accrues, and ‘originates’ for purposes of § 516.190, when and where the damage ‘is sustained and is capable of ascertainment.’ ”).

Here, OPPI does not dispute on appeal that “Adams could not have maintained a suit under Section 970, which Defendants admit, until his termination in Missouri.” Furthermore, OPPI expressly concedes on appeal that “OPPI terminated Adams’ employment when Foote and Adams were at a breakfast meeting in Kansas City, Missouri.”

Pursuant to these undisputed facts, we find it difficult to discern how Adams’s Section 970 claim originated or accrued anywhere other than Missouri, notwithstanding the fact that the claim is based on California substantive law. As such, Missouri’s borrowing statute, Section 516.190, is inapplicable to the instant matter. Thus, we would assume that Missouri law (the law of the forum state) would apply, meaning Missouri’s three year statute of limitations period governs to determine whether Adams’s Section 970 claim was timely filed. OPPI cites no authority to the contrary.

Alternatively, OPPI argues that “Missouri’s statutes of limitation cannot salvage Adams’ Section 970 Claim” because “Adams’ claim would have originated at the time of the alleged misrepresentations, 2004.” We disagree. As outlined above, Section 516.100 is clear that “the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment.”

In light of the limited evidentiary record established on this issue, which was disposed of by the trial court on a motion to dismiss, it is impossible for this Court to pinpoint when Adams’s alleged damages were “sustained” and “capable of ascertainment.” However, when reviewing the facts in the light most favorable to Adams, as we must pursuant to our standard of review, it is apparent that Adams’s cause of action was not “sustained” nor “capable of ascertainment” until OPPI discharged Adams on January 4, 2007. Because Adams filed his Section 970 claim on August 26, 2008, which was within the applicable three year period, we conclude that the trial court erred in dismissing Adams’s claim as time barred.

Conclusion

The trial court’s judgment, which granted OPPI’s summary judgment motion as it pertained to Adams’s breach of contract claim and unjust enrichment claim, is affirmed. However, as it pertains to Adams’s Section 970 claim, the trial court’s judgment is reversed and remanded because the trial court erred in concluding that this claim was time barred based on the motion to dismiss.

All concur.

      . Which was not denominated a "Judgment.”

      . Adams brings six Points Relied On, five of which pertain to the motion for summary judgment. Accordingly, these issues will be analyzed together herein, with the sole Point Relied On pertaining to the motion to dismiss (Point Four) being analyzed last.

      . OPPI attempts to argue on appeal that the contract was negotiated in Missouri, but we agree with the trial court's conclusion in this regard that the "parties agree[d] the employment agreement at issue was negotiated and made in California.” For example, in its motion for summary judgment, OPPI states it "does not dispute that the alleged ‘handshake agreement' giving rise to the alleged verbal employment contract occurred in California.”

      . All statutory citations are to RSMo 2000, as updated through the 2009 Cumulative Supplement, unless otherwise indicated. Section 432.010 states the following:
      No action shall be brought to charge any executor or administrator, upon any special promise to answer for any debt or damages out of his own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of another person, or to charge any person upon any agreement made in consideration of marriage, or upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year, or upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract.

      . Unless otherwise indicated, all rule references are to the Missouri Supreme Court Rules (2010).

        . We note that Adams originally alleged in his Petition that he "provided valuable services to OPPI that exceeded the value of the compensation that OPPI has paid to Adams.” For whatever reason, however, Adams conceded this issue during the litigation of this claim, and therefore OPPI cannot be considered to have been unjustly enriched by Adams’s labor.

      . This would be an appropriate case to apply the VanPelt Doctrine. This Doctrine holds that if the parties wanted a provision in a contract they should have stated it in the contract. We will not create a provision by judicial fiat that the parties could have easily provided for when they negotiated the agreement.

      . California Labor Code Section 970 prohibits an employer from knowingly making a false representation to an employee regarding tire length of the employment in order to induce an employee to relocate for the employment.

      . The motion to dismiss was actually filed by OPPI and Foote, but for ease of analysis on this point we will refer to these parties simply as OPPI.

      . Assuming that Missouri's statute of limitation applies, it is undisputed that Section 516.130(2) provides for a three year statute of limitations that is applicable to Adams's Section 970 claim.


source: Caselaw Access Project

author: MARK D. PFEIFFER, Presiding Judge.

license: Public Domain

text:
    Stephen J. PITTS, Respondent, v. Janet K. WILLIAMS and Ronald J. Levy, Appellants.
    No. WD 71275.
    Missouri Court of Appeals, Western District.
    July 6, 2010.

      Chris Koster, Attorney General, Caleb M. Lewis, Assistant Attorney General, Jefferson City, MO, for Appellants.
    Frederick A. Duchardt, Jr., Trimble, MO, for Respondent.
    Before Division II: MARK D. PFEIFFER, Presiding Judge, and VICTOR C. HOWARD and ALOK AHUJA, Judges.
   MARK D. PFEIFFER, Presiding Judge.

Janet Williams (Williams) and Ronald Levy (Levy), employees of the Missouri Department of Social Services — Children’s Division (collectively referred to as the Children’s Division), appeal the judgment of the Circuit Court of Carroll County (trial court) granting a writ of mandamus requiring the Children’s Division to commence the administrative appeal process and to release the investigative records allegedly substantiating the finding by the Children’s Division that Stephen Pitts (Pitts) had committed child abuse or ne-gleet. On appeal, the Children’s Division argues that section 210.150.2(5) does not require it to produce such documentation while a criminal investigation is ongoing. We disagree and affirm the judgment of the trial court.

Factual and Procedural Background

On August 18, 2008, the Ray County office of the Children’s Division notified Pitts that a report of child abuse and neglect had been substantiated against him by the Children’s Division. Pitts made a timely request for administrative appeal of this agency determination as authorized by section 210.152. Pitts simultaneously sought disclosure of the reports and other investigative documents contemplated by section 210.150. Williams, the circuit manager for the Ray County office of the Children’s Division, informed Pitts that the Children’s Division refused to release the requested documents or commence the administrative appeal process because there was an ongoing law enforcement criminal investigation based upon the alleged child abuse.

Pitts did not initially contest the Children’s Division’s position on document disclosure. However, after eight months of waiting to either be charged with a crime or to receive notification from the prosecutor that the criminal investigation was concluded without formal charges, Pitts filed a petition for a writ of mandamus requesting that the Children’s Division be required to immediately turn over the sought-after investigative documents and begin the administrative appeal process. The trial court granted Pitts’s mandamus petition and ordered that the Children’s Division commence the administrative appeal process and produce the requested documents. However, the document production was stayed pending the appeal to this court.

Mootness Doctrine

After this appeal was fully briefed, but before this appeal was procedurally taken under submission by this court, the Carroll County Prosecutor notified the parties that the Pitts investigation was complete and the prosecutor would not be pursuing criminal charges against him. Given this notification to the parties from the prosecutor, the Children’s Division no longer objects to production of the investigative reports in question. Consequently, the controversy this court was asked to decide between these parties is removed and this appeal is moot. “ ‘When an event occurs that makes a court’s decision unnecessary or makes it impossible for the court to grant effectual relief, the case is moot and generally should be dismissed.’ ” State ex rel. Claudia Lee & Assocs., Inc. v. Bd. of Zoning Adjustment of Kansas City, 297 S.W.3d 107, 111-12 (Mo.App. W.D.2009) (quoting State ex rel. AG Processing, Inc. v. Pub. Serv. Comm’n, 276 S.W.3d 303, 306 (Mo.App. W.D.2008)).

In the instant case, however, both parties have requested that this court take up the substance of the contested matter despite the mootness of the appeal. This joint request, even though agreed upon by both parties, does not empower this court to hear a moot appeal absent an authorized exception. The mootness doctrine possesses at least two such exceptions which allow for appellate review of an otherwise non-justiciable controversy: (1) The controversy becomes moot after it was argued and submitted; (2) the underlying issue is of general public interest and importance, is recurring, and otherwise is likely to continue to evade appellate review. Reiz v. Bd. of Zoning Adjustment of Kansas City, 316 S.W.3d 331 (Mo.App. W.D.2010). We conclude that the present appeal meets the requirements of the second exception.

In the present case, the underlying issue of the mechanics of the administrative appeal process after an individual has been found by the Children’s Division to have abused or neglected a child is of general public interest and importance. Missouri’s administrative appeal process involves the often competing and equally important statutory procedures designed to protect the due process rights of its citizens while also ensuring the protection and privacy of the alleged victims of child abuse and those that report the alleged abuse. As the facts of this case illustrate, this procedural scenario is of a category that tends to be capable of repetition yet evades appellate review.

After being notified by the Children’s Division in August of 2008 that the Children’s Division had investigated and substantiated child abuse by Pitts, Pitts promptly initiated the administrative appeal process to clear his name. In fact, though allowed sixty days to file his appeal, § 210.152.3, Pitts filed his administrative appeal within eleven days. However, in September of 2008, the Children’s Division notified Pitts that it refused to process his appeal while law enforcement investigation of the allegations of abuse and the prose-cutorial decision to proceed or not proceed with formal criminal charges was pending. After the investigation had been open and ongoing eight months later without the initiation of formal charges by the Carroll County Prosecutor, Pitts hired an attorney and petitioned the trial court for a writ of mandamus on May 14, 2009. On July 14, 2009, the trial court granted Pitts’s mandamus petition, entered judgment for Pitts, and this appeal ensued. After the appeal had been fully briefed by the parties, oral argument had been scheduled, and the appeal was within days of oral argument and submission, the Carroll County Prosecutor’s decision to close the Pitts investigation without pursuing criminal charges rendered the appeal moot.

It is readily apparent to this court that Pitts zealously and promptly pursued his rights. Despite his diligence, almost two years elapsed from the date Pitts learned of the Children’s Division’s substantiated abuse finding until events creating mootness overtook the present appeal process. Since the appropriate law enforcement agency must be informed immediately of any report of child abuse or neglect that the Children’s Division determines merits investigation, § 210.145.4, we conclude that prosecuting attorneys should consistently be able to decide to pursue or not pursue criminal charges before the appellate process and review by an appellate court regarding the underlying contested issue can be completed. Consequently, we find that this issue of section 210.150 document production by the agency tends to evade review. Furthermore, the Children’s Division informs us that Pitts’s fact pattern does not represent an isolated case and that determination of the contested issue in this case would provide valuable guidance in future administrative appeal proceedings involving allegations of abuse by the Children’s Division as it relates to the release of investigative records. Accordingly, we conclude that this appeal falls within one of the recognized exceptions to the mootness doctrine, and we choose to evaluate the substance of the underlying contested issue on appeal.

Standard of Review

The standard of review for a writ of mandamus is an abuse of discretion. State ex reí Unnerstall v. Berkemeyer, 298 S.W.3d 513, 517 n. 5 (Mo. banc 2009). Where, however, the foundation of the writ is based upon interpretation of a statute, we review the statute’s meaning de novo. Id.

Analysis

Relevant History and Procedures

Before addressing the question at the heart of this appeal, we briefly recite the general background and procedures of a child abuse investigation by the Children’s Division which leads to a substantiated finding by the Children’s Division and the corresponding appeal process related to such “findings” in the state of Missouri. Missouri’s measures to protect abused and neglected children are codified in Chapter 210 of Missouri’s Revised Statutes. Sections 210.109 through 210.183 specifically outline Missouri’s response to the reported abuse and neglect of children. The legislature acknowledges that these cases involve the balancing of multiple priorities: the safety of the child, retention of the family unit, and the due process rights of the alleged perpetrator. § 210.145.1. To harmonize these sometimes competing priorities, our legislature established a series of procedures to be implemented by the Chil- ■ dren’s Division.

When an allegation of abuse or neglect is reported, the Children’s Division first makes a determination as to whether they believe the hotline report merits investigation. § 210.145.3. If so, the report of abuse is forwarded to the most local branch office of the Children’s Division for further review. Id. The staff of that office determines if an investigation of the allegation or family assessment and services are warranted. Id. If an investigation is determined to be warranted, the Children’s Division is required to immediately contact the appropriate law enforcement authority to inform it of the allegation and request assistance with the investigation. § 210.145.4. The appropriate law enforcement agency shall then either assist the Children’s Division in the investigation, or within twenty-four hours of receiving notification, explain in writing why it will not be able to assist. Id.

When the Children’s Division investigates a report of abuse or neglect it must, within ninety days of receiving the initial report, notify the alleged perpetrator in writing of its finding. § 210.152.2. The alleged perpetrator is also informed that the finding is confidential, except as provided in section 210.150. § 210.152.2(1). The alleged perpetrator is entitled to access the investigative records. However, such individual is not entitled to the name of the person who reported the abuse nor is such individual permitted to have access to the investigative records if the Children’s Division determines that doing so would endanger a person. § 210.150.2(5). Finally, the alleged perpetrator is not allowed to see the investigative records if criminal charges are pending and the criminal charges are based upon the facts and circumstances that are the subject of the reported abuse or neglect, until an indictment is returned or an information is filed. Id.

If the Children’s Division has concluded by a preponderance of the evidence that there was abuse or neglect, the alleged perpetrator has sixty days to seek an administrative appeal to, and relief from, the Child Abuse and Neglect Review Board (CANRB). 13 C.S.R. 35-31.025(2)(A). To appeal from the administrative determination, the alleged perpetrator must request administrative review in writing. 13 C.S.R. 35-31.025(1). Upon such a request, the circuit manager of the local office of the Children’s Division will review the finding and, within ten days, determine whether to uphold or reverse the initial finding. 13 C.S.R. 35-31.025(2)(B). If the original agency finding is upheld, the circuit manager is required to inform the alleged perpetrator in writing of the findings on circuit manager review and to forward the alleged perpetrator’s request for administrative review to the CANRB. 13 C.S.R. 35-31.025(2)(C).

Within five days of receiving the notice of administrative appeal, the CANRB must notify the alleged perpetrator of the date, time, and location for the administrative review hearing. 13 C.S.R. 35-31.025(9)(A). The CANRB must keep all reports and records confidential except as permitted by section 210.150. 13 C.S.R. 35-31.025(7). If the alleged perpetrator is aggrieved by the decision of the CANRB, such individual may seek de novo judicial review in the circuit court of the county in which such individual resides or in Cole County. § 210.152.5. As long as the appeal is progressing, the alleged perpetrator’s name will not be added to the child abuse and neglect registry. Jamison v. Dep’t ofSoc. Sews., Dim. of Family Sews., 218 S.W.3d 399, 417 (Mo. banc 2007).

When Does § 210.150.2(5) Allow for Release of Records to an Alleged Perpetrator?

On appeal, the Children’s Division argues that the trial court erred in interpreting “pending criminal charges” as that phrase is found in section 210.150.2(5). The Children’s Division argues that the legislature intended this term to include an ongoing criminal investigation. We disagree.

Section 210.150.2(5) provides that an alleged perpetrator of child abuse or neglect is entitled to have access to investigative records, when certain conditions have been met:

Any alleged perpetrator named in the report, but the names of reporters shall not be furnished to persons in this category. Prior to the release of any identifying information, the division shall determine if the release of such identifying information may place a person’s life or safety in danger. If the division makes the determination that a person’s life or safety may be in danger, the identifying information shall not be released. However, the investigation reports will not be released to any alleged perpetrator with pending criminal charges arising out of the facts and circumstances named in the investigation records until an indictment is returned or an information filed [.]

(Emphasis added.) In interpreting statutes, “‘[ejach word, clause, sentence and section of a statute should be given meaning.’ ” State ex rel. Womack v. Rolf, 173 5.W.3d 634, 638 (Mo. banc 2005) (quoting Hadlock v. Dir. of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993)). We reject an interpretation of a statute that will cause us to ignore the language of the statute. Id. It is a general presumption of statutory construction that the legislature did not include superfluous language. Norwin G. Heimos Greenhouse, Inc. v. Dir. of Revenue, 724 S.W.2d 505, 508 (Mo. banc 1987). Furthermore, we avoid interpretations of statutes that lead to an unreasonable or absurd result. Laclede Gas Co. v. City of St. Louis, 363 Mo. 842, 253 S.W.2d 832, 835 (1953); State v. Sledd, 949 S.W.2d 643, 645 (Mo.App. W.D.1997). In this context, then, we examine what the phrase “pending criminal charges” in section 210.150.2(5) means.

The statute in question does not define “pending.” The Black’s Law Dictionary definition of “pending” is “[bjegun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; undetermined; in process of settlement or adjustment. Thus, an action or suit is ‘pending’ from its inception until the rendition of final judgment.” Black’s Law Dictionary 1021 (5th ed.1979). “A suit is deemed to be pending from the time it is commenced until its final determination, or until the entry of a final judgment.” 1 Am.Jur. 2d Actions § 67 (2005). We conclude that “pending” means something more than a thing that has yet to happen. Instead, in a legal context, “pending” means an event that has been initiated but not yet concluded.

The question, then, before this court is when a criminal charge is initiated and therefore “pending.” The Children’s Division contends that within the context of the statute, the only reasonable interpretation of when a criminal charge is initiated is when the investigation is initiated by law enforcement and under review by the relevant prosecutorial entity. Conversely, in its judgment, the trial court defined the phrase in question in the following manner:

[W]hen the term regarding a pending criminal charge is read in the context of the rest of the statutory language, it is clear that the term refers to a charge which has been filed with a court, particularly in light of this statute’s direction that the records be released once the charge progresses in the process to the point at which the case reaches the Circuit Court level through the bringing of an indictment or information.

In Missouri, both felony and misdemeanor criminal charges may be commenced by a bill of indictment returned by a grand jury. Rules 21.01, 22.01. A bill of indictment is the province of a grand jury, § 540.240, and an indictment is returned only after deliberation by a duly convened grand jury where at least nine members of the grand jury concur on the indictment, § 540.250, and return a true bill of indictment. Pursuant to article I, section 16 of the Missouri Constitution, “no grand jury shall be convened except upon an order of a judge of a court having the power to try and determine felonies.”

In Missouri, the other method of initiating a misdemeanor criminal proceeding is by the filing of an information with a court of competent jurisdiction. Rules 21.01, 21.02.

The only other method to initiate a felony proceeding in Missouri is by complaint. Rule 22.01. Notably, a complaint is sufficient to commence a criminal proceeding even though it is not sufficient to take the matter to trial. Hayes v. State, 301 S.W.3d 542, 546 (Mo.App. W.D.2009). More specifically, we have stated:

A complaint is a pleading by which a criminal action is commenced. It is presented by a public officer upon the officer’s oath of office, rather than by a grand jury on their oath.... While there is authority that the filing of a complaint gives the court subject matter jurisdiction of the offense charged, under a statutory provision, a complaint is a form of acmsatory instrument which is sufficient to commence a criminal proceeding but is jwrisdictionally insufficient to take a matter to trial.

Id. (quoting 42 C.J.S. Indictments § 3 (1989)).

One of the cases relied upon in Hayes v. State is State v. Rhodes, 591 S.W.2d 174 (Mo.App. E.D.1979), which holds that a complaint performs the same function as an indictment or information, which is to advise the accused of the charge and enable a judge to preliminarily determine whether or not the accused should be bound over to stand trial for the offense. Id. at 175. Stated another way, “[t]he filing of a complaint ... is the first step in instituting a criminal charge.” Id. See also State ex rel. Lamar v. Impey, 365 Mo. 437, 283 S.W.2d 480, 482 (1955) (“In this State, prosecution of felonies are by indictment or information. If by information, it is necessary to commence the prosecution by a complaint in a magistrate court where the defendant is given the right to have a preliminary hearing.”).

Thus, a felony information occurs añer a complaint has been filed to initiate the criminal proceeding pursuant to Rules 22.01, 22.02, and 22.03 and a judge of the circuit court (typically an associate circuit judge) in the county where the offense is alleged to have been committed has determined that the facts support a finding of probable cause such that the defendant must answer to the charge. § 544.250. At that point, the felony criminal defendant is bound over for trial before a different judge of the circuit court (typically a circuit judge), § 478.240.2(2) (the presiding judge of the circuit court shall not assign a judge to hear the trial of a felony case when such judge has previously conducted the preliminary hearing in that case), and the prosecutorial entity must then file a felony information to replace the complaint to proceed to trial. Rule 23.03 (“An information charging a felony shall be filed not later than ten days after the date of the order requiring the defendant to answer to the charge.”).

The one constant of each “commenced” criminal proceeding, whether misdemeanor or felony, is that a court of competent jurisdiction is inextricably bound to the process of “commencing” the criminal charge — whether by indictment, information, or complaint. The other constant is that a “pending criminal charge” is a global phrase encompassing criminal charges that can procedurally exist with, and sometimes without, a simultaneous indictment or information.

Not so coincidentally, Rule 25.02 states that discovery in a criminal proceeding “may commence upon the filing of the indictment or information.” Applied to the criminal proceeding commencement mechanisms discussed herein:

• If a misdemeanor or felony criminal proceeding is commenced by a bill of indictment returned by a grand jury, discovery may commence immediately.
• If a misdemeanor criminal proceeding is, instead, commenced by the filing of an information, discovery may commence immediately.
• If a felony criminal proceeding is commenced by the filing of a complaint, no discovery is required until preliminary examination has occurred or is waived and the associate circuit judge usually binds the case over for trial, at which point the complaint is replaced by an information.

Is it any coincidence that the relevant language of section 210.150.2(5) (“[T]he investigation reports will not be released to any alleged perpetrator with pending criminal charges arising out of the facts and circumstances named in the investigation records until an indictment is returned or an information filed”) patterns the discovery of investigative records substantiating abuse to such point in time that is virtually identical to the language of the criminal discovery rule found at Rule 25.02? We think not. We believe the intent of the legislature’s enactment of the document discovery mechanism of section 210.150.2(5) was plainly worded to prohibit a criminal defendant from discovering documents via section 210.150.2(5) that were not discoverable under Rule 25.02. Conversely, section 210.150.2(5) is not worded in such a way as to limit the scope of discovery that Rule 25.02 would otherwise authorize.

Furthermore, we read statutes in pari materia with each other. S. Metro. Fire Prot. Dist. v. City of Lee’s Summit, 278 S.W.3d 659, 666 (Mo. banc 2009) (“In determining the intent and meaning of statutory language, the words must be considered in context and sections of the statutes in pari materia, as well as cognate sections, must be considered in order to arrive at the true meaning and scope of the words.”). Section 210.152.3, which sets out the timetable for appealing an abuse or neglect finding by the Children’s Division, states:

Any person named in an investigation as a perpetrator who is aggrieved by a determination of abuse or neglect by the division as provided in this section may seek an administrative review by the child abuse and neglect review board pursuant to the provisions of section 210.153. Such request for review shall be made within sixty days of notification of the division’s decision under this section. In those cases where criminal charges arising out of facts of the investigation are pending, the request for reviere shall be made within sixty days from the court’s final disposition or dismissal of the charges.

(Emphasis added.)

Clearly, in this section of Chapter 210, the legislature contemplates that once a criminal “charge” is “pending,” termination of the “pending criminal charge” occurs either by final disposition by “the court” or dismissal of filed charges with the court by the prosecutorial entity. Termination in this statutory section is not contemplated by a prosecutor or other law enforcement agency terminating its investigation of possible criminal charges that were never filed. It is no coincidence that “the court” is inextricably bound to every scenario involving the commencement of a misdemeanor or felony criminal proceeding, and it is, likewise, no coincidence that the contested language of section 210.150.2(5) refers to “pending criminal charges ” and not “pending criminal investigations.

Ultimately, a criminal “charge” is just that — a criminal charge — not a criminal investigation. Had the legislature intended for the production of investigative documents to be restricted under section 210.150.2(5) when a criminal “investigation” was pending, it could have and would have said so. It did not. Consequently, we conclude that the trial court’s judgment is in harmony with the plain language of the statute.

Conclusion

Pursuant to section 210.150.2(5), the investigative records contemplated by that statute are accessible by an alleged perpetrator, subject to redaction as contemplated by the statute and subject to the Children’s Division’s determination that the release of the records will not endanger a person’s life or safety, unless the alleged perpetrator has been charged with a felony by the filing of a complaint arising out of the facts and circumstances identified in the investigative records and the felony complaint has not yet resulted in an information after a preliminary hearing has been held or waived and the case has been bound over for trial. In all other instances — misdemeanor charged by indictment; misdemeanor charged by information; felony originally charged by indictment; a criminal investigation pending without criminal charges being filed — the alleged perpetrator is entitled to the records contemplated by section 210.150.2(5).

The judgment of the trial court is affirmed.

VICTOR C. HOWARD, Judge, and ALOK AHUJA, Judge, concur.

      . All citations are to RSMo Cum.Supp.2009 unless otherwise indicated.

      . While no charges had been filed against Pitts, the Prosecuting Attorney for Carroll County had notified the Children’s Division that there was an active and open investigation of Pitts “pending.”

      .In addition to section 210.152, the administrative appeal process is outlined by 13 C.S.R. 35-31.025.

      . As we discuss infra, once formal criminal charges have been filed and an indictment or information has occurred in the criminal proceeding, the same documents sought by the alleged perpetrator in a section 210.150 administrative discovery request are discoverable via formal criminal discovery pursuant to Rule 25.02. Under either scenario, formal criminal charges are or are not filed by the prosecutor, this issue typically becomes moot before an appellate court has the chance to review it.

      . Aside from the fact that we can think of no rational scenario in which a criminal ''investigation” equals a criminal "charge,” there are significant collateral consequences to the Children’s Division's proposed interpretation, which is, in essence: from the moment a report is passed on to the law enforcement agency and an investigation is initiated by law enforcement until the relevant prosecutorial entity decides to criminally charge the alleged perpetrator to the point of indictment or information — or close the investigation without charges — or the statute of limitations runs during the ongoing investigation, there is a "pending criminal charge” and no need to produce the agency’s investigative documentation. While the alleged perpetrator's name could not be placed on the child abuse and neglect registry during this time, Jamison, 218 S.W.3d at 417, there are a host of other collateral consequences that exist during what could be a very extended timeline for what may be an innocently accused alleged perpetrator. For example, there is a social stigma that attaches to unresolved and potentially untrue abuse findings by the Children’s Division; often, during the pendency of the administrative proceedings, there are rehabilitation requirements imposed upon the alleged perpetrator that may include what amounts to an acknowledgement of guilt; often, until the appeal process has run its course, the alleged perpetrator is not permitted to have unsupervised access to his or her children; in the current case, Pitts is not permitted to have contact with his stepdaughter and, as a result, must move out of the family home when his wife has physical custody of his stepdaughter. While the statute of limitations will run in three years for most felonies and one year for most misdemeanors, a prosecution for any unlawful sexual offense involving a person under eighteen years of age may be commenced within twenty years of the date upon which the alleged victim turns eighteen, § 556.037, and there is no statute of limitation for murder, any class "A” felony, forcible rape, attempted forcible rape, forcible sodomy, or attempted forcible sodomy, § 556.036.1, such that it is conceivable that the timeline that the Children’s Division advocates for its interpretation of "pending criminal charges” could last indefinitely. An investigation by the Children's Division that results in a finding of abuse or neglect can result in substantial limitations on an individual’s right to raise one’s child, adopted child, or stepchild. In many cases, those limitations are valuable protections for what turns out to be substantiated abuse allegations that result in criminal convictions. There are, however, instances where an alleged perpetrator who may be a parent has been falsely accused of abuse or neglect and that parent has "a fundamental liberty interest protected by the constitutional guarantee of due process” to raise his or her children, In the Interest of K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004), and we must guard that liberty interest with the same energy that we seek to protect the children of this state from abuse and neglect.

      . The crux of the Children’s Division's argument is that if you replace the phrase "pending criminal charges” with the phrase "indictment or information," then it reads: "[Ijnvestigation reports will not be released to any alleged perpetrator with [an indictment returned or an information filed] arising out of the facts and circumstances named in the investigation records until an indictment is returned or an information filed ....” This, the Children’s Division argues, is an absurd result, and hence, the legislature must have meant pending criminal "investigations” when it said pending criminal "charges.” First, this ignores the plain meaning and difference between an "investigation” and a "charge.” Second, this ignores the fact that a criminal charge, as discussed in our ruling today, is a global phrase that includes criminal procedural circumstances that may or may not include a corresponding indictment or information — namely, the criminal procedural scenario when a felony charge is initiated by complaint, but has not yet proceeded to the point of indictment or information.

      . Many counties do not regularly convene a grand jury and, accordingly, all felony criminal charges in those counties are ordinarily commenced by a felony complaint that eventually leads to the filing of an information before the criminal charge proceeds to trial.

      . In practice, this is the most common method of initiating a felony criminal charge.

      . Magistrate judges have since been replaced with associate circuit judges, who serve as a division of the circuit court.

      .Notably, our Missouri Supreme Court, in reaching this ruling, concluded that the filing of the criminal complaint constituted a criminal prosecution of a criminal charge that was pending from the moment the complaint was filed, and the Supreme Court found it immaterial that the complaint had not, at the time of the complained-of procedural objection, resulted in an information. Impey, 283 S.W.2d at 482.

      . "[A] preliminary examination shall in no case be required where same is waived by the person charged with the crime....” § 544.250.

      . We assume that this is the procedural scenario contemplated by the trial court's judgment below when describing the criminal charge progressing ”[t]o the point at which the case reaches the Circuit Court level through the bringing of an indictment or information.” As the trial court below also correctly suggested, a prosecutorial entity could file a complaint, then while the complaint is pending, submit the case to the grand jury for a bill of indictment and, upon receiving the bill of indictment, the case would proceed to trial against the defendant via the bill of indictment and not the complaint (which would ultimately require an information). Irrespective, the trial court's judgment explaining its interpretation of "pending criminal charges” appears to reference the usual scenario whereby a felony criminal charge is initiated by a felony complaint.

      . We also note that, if "pending criminal charges” were to be interpreted in sections 210.150.2(5) and 210.152.3 as the Children’s Division advocates (namely, to include criminal investigations ), it would make it difficult to determine whether a request for review was timely commenced, since the date an investigation terminates may not be easily ascertainable.


author: PER CURIAM:

text:
    Darrell Wayne MILLER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70916.
    Missouri Court of Appeals, Western District.
    July 13, 2010.
    Susan Hogan, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Jayne T. Woods, Jefferson City, MO, for respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and GARY D. WITT, JJ.
   Order

PER CURIAM:

Darrell Miller appeals the denial of his Rule 24.035 motion to vacate his conviction and sentence following his plea of guilty to second-degree assault. Affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Terrance ROBINSON, Appellant.
    No. WD 70470.
    Missouri Court of Appeals, Western District.
    July 13, 2010.
    Shaun L. Mackelprang and Jayne T. Woods, Jefferson City, MO, for respondent.
    Laura G. Martin, Kansas City, MO, for appellant.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge, and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Terrance Robinson appeals the circuit court’s denial of his motion to dismiss the charges against him based on a violation of his right to a speedy trial.

We affirm. Rule 30.25(b). A memorandum setting forth the reasons for this order has been provided to the parties.


author: GLENN A. NORTON, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Tracy DENNIS, Appellant.
    No. ED 93437.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 13, 2010.
    Brocea Smith, Saint Louis, MO, for Appellant.
    Anthony S. Bruning Jr., Circuit Attorney’s Office, Saint Louis, MO, for Respondent.
   OPINION

GLENN A. NORTON, Presiding Judge.

Tracy Dennis appeals the judgment entered upon a jury verdict convicting him of two counts of misdemeanor assault of a law enforcement officer. We affirm.

I. BACKGROUND

On August 14, 2008, at 1:45 a.m., Police Officer Alonzo Wilkerson stopped Dennis for loitering. During the officer’s questioning, Dennis mentioned he had an outstanding warrant. With the assistance of Officer Steven Tucker, Officer Wilkerson took Dennis to the Central Patrol Station. Once at the station, a struggle ensued between Dennis and the officers. Dennis was charged with two counts of misdemeanor assault of a law enforcement officer for pushing both officers during this struggle.

In the instant case, the State filed a motion in limine asking the court to prohibit defense counsel from eliciting testimony regarding cameras in the Central Patrol Station’s holdover area. The State argued the evidence was confusing to the jury and unduly prejudicial to the State because it created a belief that the State was keeping evidence from the jury. Over defense counsel’s objection the trial judge granted the motion. The jury convicted Dennis on both counts. Dennis now appeals.

II. DISCUSSION

In Dennis’s sole point on appeal, he alleges the trial court erred in granting the State’s motion in limine and excluding evidence of cameras in the police station. Dennis argues that evidence of cameras in the police station is both logically and legally relevant to his case.

We review the trial court’s decision whether to admit evidence for abuse of discretion. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). A trial court has broad discretion to admit or exclude evidence at trial. Id. A trial court abuses its discretion when a decision “is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.” Id. If reasonable persons can disagree about the propriety of the trial court’s ruling, the trial court did not abuse its discretion. State v. Raines, 118 S.W.3d 205, 209 (Mo.App. W.D.2003).

“Evidence is admissible if it is logically and legally relevant.” State v. Crow, 63 S.W.3d 270, 274 (Mo.App. W.D. 2001). Evidence is logically relevant “if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, or if it tends to corroborate evidence which itself is relevant and bears on the principal issue of the case.” State v. Tisius, 92 S.W.3d 751, 760 (Mo. banc 2002). Legal relevance requires that the probative value of the evidence must outweigh its prejudicial effect. State v. Anderson, 76 S.W.3d 275, 276 (Mo. banc 2002).

In this case, the trial court concluded the evidence of the presence of cameras was inadmissible because the risk of confusing or misleading the jury outweighed the probative value of the evidence. We find no abuse of discretion. Point denied.

III. CONCLUSION

The judgment is affirmed.

      . Due to unique circumstances, the parties and the trial judge were already aware of what the proffered evidence would be. The day before the trial at issue in this case, Dennis was tried on a separate charge of assault of a law enforcement officer for events that occurred at the same patrol station. The same attorneys represented Dennis and the State in both cases and both cases had the same judge presiding over the disputes. At the first trial, Dennis testified regarding the presence of cameras in the Central Patrol Station’s holdover area. In response to this testimony, the State called an officer to testify that although there were cameras in the station, these cameras were old and outdated and never recorded or operated.

      . The State argues Dennis failed to preserve his point for appellate review and this Court should only review for plain error. However, we find it unnecessary to determine whether the issue was properly preserved for appeal because even under the abuse of discretion standard Dennis’s conviction must be affirmed. Upon a finding of no abuse of discretion, it logically follows that there is no plain error committed by the trial court. See State v. Schneider, 736 S.W.2d 392, 398 (Mo. banc 1987).