author: GARY D. WITT, Judge.

text:
    Charles Michael ANGUS, Appellant, v. SECOND INJURY FUND, Respondent.
    No. WD 72141.
    Missouri Court of Appeals, Western District.
    Oct. 12, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      Donald T. Taylor and Joseph A. Dewos-kin, Kansas City, MO, for appellant.
    Richard C. Wiles, Kansas City, MO, for respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

Appellant Charles Michael Angus appeals the Final Award Denying Compensation issued by the Labor and Industrial Relations Commission (Commission). The Commission’s Final Award upheld a decision of an Administrative Law Judge (ALJ) in the Division of Workers’ Compensation (Division), which denied Angus’s claim for workers’ compensation benefits. For the reasons stated below, we reverse and remand this matter to the Commission.

Factual Background

Angus (born 10/19/1954) worked for ATK Alliant Techsystems (“Employer”) from 1981 to 1996, when he was discharged as the result of a work-force reduction. Employer re-hired Angus in 2001 as a bullet inspector at an ammunition plant in Independence, Missouri. In August 2002, Angus first complained of severe joint pain.

Angus’s duties as a bullet inspector included inspecting bullets as they came down the assembly line, and placing them in bins depending on whether they were good or defective. These bins were then placed into buggies, which would eventually weigh anywhere from 500 to 1,000 pounds depending on the load. Angus was required to push the buggies from each machine to other locations for storage. Overall, Angus’s job was physically demanding in that, in addition to pushing the buggies as described above, it required bending, squatting, stooping, and lifting items that would weigh up to fifty pounds.

Because of a litany of joint issues, Angus began seeking medical treatment in 2002, which led his doctors to recommend that his work be restricted. On September 30, 2003, Angus filed a formal injury report, and he continued to work for Employer on a restricted basis. Doing these work assignments caused Angus agonizing pain, particularly in his knees, because he had a hard time bending and straightening both knees.

Further details regarding Angus’s medical conditions will be outlined as relevant in the analysis section herein, but it is worth noting that on appeal no party disputes that because of his arthritis Angus is permanently and totally disabled.

In January of 2004, Employer discharged Angus from employment because he could not complete the required work tasks in light of his arthritis, and Angus has not worked since.

On January 18, 2005, Angus filed his claim with the Division. In his claim, Angus alleged permanent total disability.

On December 18, 2008, Angus settled his workers’ compensation claim as it pertained to Employer. Specifically, the Stipulation for Compromise Settlement provided that Employer would pay Angus $24,987.60 “based upon approximate disability of 18% of body as a whole.”

On August 31, 2009, the ALJ held a hearing on Angus’s claim as it pertained to the Second Injury Relief Fund (Fund), which was represented by the Attorney General’s office. At the hearing, the ALJ heard evidence from the opposing parties to support their respective theories of the case.

On September 4, 2009, the ALJ issued an Award containing Findings of Fact and Conclusions of Law. In his Award, the ALJ concluded that Angus should receive no workers’ compensation benefits from the Fund because he did not sustain a compensable injury, accident, or occupational disease arising out of and in the course of his employment.

Thereafter, the Commission issued its Final Award on January 22, 2010. The Final Award denied compensation to Angus, adopting the findings of the ALJ and finding “that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers’ Compensation Law.”

Angus now appeals.

Standard of Review

Our standard of review is governed by Section 287.495.1, which provides:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(8) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

“A court must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e. whether the award is contrary to the overwhelming weight of the evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). “An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.” Id. at 223. In employing this analysis, we are not required “to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award.” Id.

The Commission affirmed the decision of the ALJ that awarded no compensation to Angus, and, in doing so, adopted the ALJ’s findings and conclusions. “When the Commission affirms and adopts the ALJ’s award, we review the ALJ’s findings as adopted by the Commission.” ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 48 (Mo.App. W.D.2007).

“This Court’s interpretation of the workers’ compensation act is informed by the purpose of the act, which is to place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment.” Schoemehl v. Treasurer of State, 217 S.W.3d 900, 901 (Mo. banc 2007). “Accordingly, the law ‘shall be liberally construed with a view to the public welfare.’ ” Id. (quoting Section 287.800). “Any doubt as to the right of an employee to compensation should be resolved in favor of the injured employee.” Id.

Analysis

In Point One, Angus argues that the Commission erred in adopting the ALJ’s opinion and awarding no compensation against the Fund because the Award is not supported by substantial, competent evidence and is contrary to the overwhelming weight of the evidence in that the Commission found appellant to be credible and that his testimony was uncontroverted and was supported by medical evidence.

On appeal, it is undisputed that Angus is permanently and totally disabled, thus presumably precluding him from ever participating in the workplace again. In rejecting Angus’s claim, the Commission expressly found “that Mr. Angus’s rheumatoid arthritis and the profound affect it has had upon him alone renders him permanently and totally disabled,” yet found that his disability was non-compensable because “Mr. Angus’ work had nothing to do with the development and progression of his rheumatoid arthritis.”

“[T]he issues of ‘accident,’ ‘injury,’ and ‘causation’ are intertwined under the law and the facts of this case,” and therefore we must pause to outline the meaning of these terms pursuant to Missouri law. Van Winkle v. Lewellens Prof'l Cleaning, Inc., 258 S.W.3d 889, 894 (Mo.App. W.D.2008).

At the time of the relevant incident, Section 287.020.3, provided:

(1) In this chapter the term “injury” is hereby defined to be an injury which has arisen out of and in the course of employment. The injury must be incidental to and not independent of the relation of employer and employee. Ordinarily, gradual deterioration or progressive degeneration of the body caused by aging shall not be compensa-ble, except where the deterioration or degeneration follows as an incident of employment.
(2) An injury shall be deemed to arise out of and in the course of employment only if:
(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing injury; and
(b) It can be seen to have followed as a natural incident of the work; and
(c) It can be fairly traced to the employment as a proximate cause; and
(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life[J

Moreover, Section 287.020.2 further provided:

The word “accident” as used in the chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. An injury is compen-sable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor.

“The claimant in a workers’ compensation case has the burden to prove all essential elements of her claim, including a causal connection between the injury and the job.” Royal v. Advantica Rest. Grp., Inc., 194 S.W.3d 371, 376 (Mo.App. W.D.2006) (citations and quotations omitted). “ ‘Determinations with regard to causation and work relatedness are questions of fact to be ruled upon by the Commission.’ ” Id. (quoting Bloss v. Plastic Enters., 32 S.W.3d 666, 671 (Mo.App. W.D.2000)). Pursuant to the statute, “[a]n injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability.” Section 287.020.2. Nonetheless, “[a]n injury is not compensable merely because work was a triggering or precipitating factor.” Id. “ ‘Awards for injuries “triggered” or “precipitated” by work are nonetheless proper if the employee shows the work is a “substantial factor” in the cause of the injury.’ ” Van Winkle, 258 S.W.3d at 897 (quoting Kasl v. Bristol Care, Inc., 984 S.W.2d 852, 853 (Mo. banc 1999)). “ ‘Thus, in determining whether a given injury is compen-sable, a “work related accident can be both a triggering event and a substantial factor.” ’ ” Id. (quoting Royal, 194 S.W.3d at 376).

A. Whether Angus Proved That His Injury Was Work Related

Here, it was not disputed below that Angus’s injury to his knees was caused by arthritis and that this resulted in his total permanent disability. Rather, the sole issue in dispute was whether his arthritis was “work related” and thus a compensable injury.

At the hearing, it was established that Angus suffered from two types of arthritis, (1) rheumatoid arthritis and (2) osteoarthritis, and it was not disputed that the types of arthritis from which he suffered were determinative as to whether Angus’s injury was a compensable work related injury. This is because the only medical testimony before the Commission established that rheumatoid arthritis is “a disease where it’s basically an autoimmune type of thing, where the person’s reacting to their own tissues” in a fashion that was unrelated to Angus’s work. On the other hand, the parties did not dispute at the hearing that if Angus’s injury was a result of degenerative osteoarthritis, then this would be a compensable injury because this type of arthritis “has a causal relationship to the biomechanical stressing from his work with progression based on the exposure at work.”

In rejecting Angus’s workers’ compensation claim, the Commission found that Angus’s “rheumatoid arthritis and the profound affect it has had upon him alone renders him permanently and totally disabled.” (Emphasis added.) The Commission’s conclusion in this regard is striking because it expressly disregards the sole expert’s medical testimony that “that Mr. Angus’s total disability results from the combined effect of rheumatoid arthritis and osteoarthritis.” While the Commission found that this medical testimony “lacks credibility,” there is no expert medical testimony whatsoever to support the Commission’s specific conclusion as it pertains to medical causation.

“[W]e defer to the Commission on issues involving the credibility of witnesses and the weight to be given testimony, and we acknowledge that the Commission may decide a case ‘upon its disbelief of uncontradicted and unimpeached testimony.’ ” Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 (Mo. banc 1993) (quoting Ricks v. H.K. Porter, Inc., 439 S.W.2d 164, 167 (Mo.1969)). However, “[t]he commission may not substitute an administrative law judge’s personal opinion on the question of medical causation of [an injury] for the uncontradicted testimony of a qualified medical expert.” Wright v. Sports Associated, Inc., 887 S.W.2d 596, 600 (Mo. banc 1994). “[T]he question of causation is one for medical testimony, without which a finding for claimant would be based upon mere conjecture and speculation and not on substantial evidence.” Elliott v. Kansas City, Mo., Sch. Dist., 71 S.W.3d 652, 658 (Mo.App. W.D.2002). When “expert medical testimony is presented,” “an ALJ’s personal views of [the evidence] cannot provide a sufficient basis to decide the causation question, at least where the ALJ fails to account for the relevant medical testimony.” Van Winkle, 258 S.W.3d at 898.

The sole medical testimony at the hearing came from Dr. Preston Brent Koprivi-ca. After physically examining Angus, reviewing Angus’s medical history, and reviewing the reports of Dr. Killman and Dr. Whitely, Dr. Koprivica concluded that Angus is “permanently totally disabled.” Dr. Koprivica further opined the following:

Unrelated to the work injury claim of September 30, 2003, and ongoing exposure through February 7, 2004, it is my opinion that Mr. Angus has profound industrial disability based on likely rheumatoid arthritis ... In my opinion, there is no relationship between the inflammatory arthritis and his work place activities. For this pre-existent industrial disability, I would assign a fifty (50) percent permanent partial disability to the body as a whole.
Separate from the rheumatoid arthritis, based on the progressive aggravating injury from the exposure to risk at work [degenerative osteoarthritis], I would assign a twenty-five (25) percent permanent partial disability to the body as a whole. I would clearly point out that I would not consider Mr. Angus’ work place exposure to be totally disabling, considered in isolation, in and of itself.

The bulk of the Commission’s Final Award is directed at attacking Dr. Koprivi-ca’s professional medical opinions as “very weak,” “not persuasive,” “[unsubstantiated,” and “lacking] credibility.” But before we respond to the substance of the Commission’s critique of Dr. Koprivica’s professional opinions, we must first determine whether the Commission usurped its role as a matter of law in expressly disregarding the above uncontradicted medical testimony and instead reaching its own conclusion regarding medical causation without the support of any expert medical testimony. Specifically, in rejecting Angus’s claim, the Commission decided “to disbelieve and disregard” the opinion of Dr. Koprivica “that Mr. Angus’ total disability results from the combined effect of rheumatoid arthritis and osteoarthritis” and “[ijnstead ... [find] that Mr. Angus’ rheumatoid arthritis ... alone renders him permanently and totally disabled.” We find that the Commission erred in so concluding.

The Missouri Supreme Court has expressly held that “[t]he commission may not substitute an administrative law judge’s personal opinion on the question of medical causation of [an injury] for the uncontradicted testimony of a qualified medical expert” in cases where “[m]edical causation ... cannot be considered uncomplicated.” Wright, 887 S.W.2d at 600. In Wright, a truck driver filed a workers’ compensation claim after carrying a fifty pound fuel canister nearly two miles, which allegedly caused him to sustain a herniated disc in his neck. Id. at 598-99. Notwithstanding the fact that claimant presented the uncontradicted testimony of a medical doctor that his injury was caused by his work, the Commission denied compensation. Id. In reversing this order, the Missouri Supreme Court found the following:

Having concluded that Dr. Ketcherside’s opinion is uncontradicted, the question becomes whether the rejection of that evidence based solely on knowledge and experience of the administrative law judge on the question of medical causation of injuries to the cervical spine may serve as a proper basis for rejecting such evidence. As a general rule, courts defer to the findings on technical matters within the expertise of administrative agencies....
... In line with the general tendency of administrative law to recognize the expertise of specialized tribunals, compensation boards may rely to a considerable extent on their own knowledge and experience in uncomplicated medical matters, and in such cases awards may be upheld without medical testimony or even in defiance of the only medical testimony.
Medical causation of a herniated disc of the spine cannot be considered uncomplicated. The commission may not substitute an administrative law judge’s personal opinion on the question of medical causation of a herniated disc for the uncontradicted testimony of a qualified medical expert. Of course, it is possible that the existence or absence of injury and causation are so obvious from the physical facts that one of ordinary understanding may reject even unchallenged medical expert testimony to the contrary. In addition, an administrative law judge may have the expertise to know that a herniated disc may result from a cause other than trauma. However, the specific medical conclusion that a herniated disc in the neck due to trauma will always have immediate noticeable symptoms is not clear, simple or well recognized by lay persons and is not a matter within the expertise of an administrative law judge.

Id. at 599-600 (citations omitted).

Likewise, here, the issue of Angus’s dueling types of arthritis is a complex medical issue not within the expertise of an administrative law judge. Ultimately, it is the Commission’s medical conclusion that “Mr. Angus’s rheumatoid arthritis ... alone renders him permanently and totally disabled” that is divorced from both the law and facts applicable to this case. As a matter of law, the problem with the Commission’s approach in rejecting Dr. Kopri-vica’s uncontradicted opinion and, instead, adopting its own contrary medical opinion is that it makes the Commission the de facto medical expert in this regard, which is troubling because like in Van Winkle this conclusion is based on nothing more than “logic and common sense” when the subject matter at hand is far too complicated for such simple reasoning. 258 5.W.3d at 898.

Moreover, the Commission’s conclusion in this regard is also troubling because all the medical evidence before it contradicted the Commission’s ultimate medical conclusion. Specifically, three medical doctors evaluated Angus, and the Commission heard uncontradicted evidence that each one of these doctors opined that both types of arthritis caused Angus’s injuries. Even the doctor hired by the Employer opined that Angus had osteoarthritis that was exacerbated to some extent by his occupation. In short, there is absolutely no evidence in the record to support the Commission’s finding that “Angus’s rheumatoid arthritis and the profound affect it has had upon him alone renders him permanently and totally disabled.” Therefore, the award is not supported by substantial, competent evidence and is contrary to the overwhelming weight of the evidence.

Finally, we must note that the Commission’s expressed concerns regarding Dr. Koprivica’s expert opinions are further not supported by the evidence. For example, the Commission concludes that Dr. Kopri-vica “never really substantiated his [ ] causation conclusions regarding Mr. Angus’ work and his osteoarthritis” and “a clear diagnosis by Dr. Koprivica that Mr. Angus even had osteoarthritis is glaringly absent.” We are at a loss as to how the Commission could be unclear as to Dr. Koprivica’s diagnosis that Angus had osteoarthritis. Dr. Koprivica unequivocally testified that “[m]y opinion is that the workplace exposure risk was a substantial contributing factor to the permanent partial disability based on the multiple joint degenerative osteoarthritic involvement.”

Moreover, Dr. Koprivica was equally clear as to why he believed Angus’s work was a substantial factor in causing this osteoarthritis:

[Angus] also had degeneration in his joints that was more wear-and tear type of degeneration. And what I understood from him is that in his employment, he was doing physically demanding work, where he was pushing carts that he said weighed over 600 pounds. He said sometimes they weighed 1,000 pounds.... That’s the workplace exposure or risk. And so he’s pushing these very heavy carts that are on hard rubber steel wheels. And he said that that pushing of carts he associated with a significant progression of joint pain ... And he made a clear-cut subjective association between those joints getting worse with the amount of work he was doing. The more he did, the worse he got.

Keeping in mind that the Commission expressly “found Mr. Angus to be a credible witness and his situation is very tragic,” we fail to see how the record supports the Commission’s finding that Dr. Koprivica’s testimony should be discounted.

Ultimately, the Commission has simply failed to articulate any reasonable basis to disregard the uncontradicted expert medical opinion before it and, instead, to create its own medical causation opinions without the aid or assistance from a qualified medical professional. Because the Commission failed to make a finding concerning causation within the bounds of the governing legal standards and the evidence before it, we must remand this matter to the Commission for it to make findings consistent with this opinion.

B. Whether The Second Injury Fund Is Liable

On remand, the Commission will also have to address the issue of whether the Second Injury Fund is liable for any of portion of Angus’s injuries.

The second injury fund is established to assist in the continuing fight against the unemployment of those who are sufferers of some disability at the time of their employment. The fund relieves an employer or his insurer of the responsibilities of liability to an employee for any disability which is not specifically attributable to an injury suffered while in the employment of that particular employer. The obvious, although not necessarily the only, basis for this type of legislation rests in the belief that an employer will not hire a job applicant for work involving danger to the extremities if that applicant has previously become disabled in an extremity. A man with only one leg might easily become permanently and totally disabled if he were to lose his other leg in the roundhouse, and his employer might choose to forego the risk of payments for this permanent and total liability by using the simple expedient of hiring another switchman. Therefore, the creation of such a fund, and they exist in many states, is a positive measure. It serves to encourage the hiring of individuals who are already disabled to an extent which might render them susceptible to further injury and disability.

James B. Slusher, The Second Injury Fund, 26 Mo. L.Rev. 328 (1961). In addition to trying to help employers and their insurers avoid liability, it should be noted that many of the disabled people the legislature was trying to assist through the implementation of the Fund were members of the armed forces who were unemployed due to battle related injuries which left them partially disabled.

Pursuant to section 287.220, the Second Injury Fund is liable in certain cases of permanent disability where there is a preexisting disability. The Second Injury Fund is responsible for that portion of disability attributable to the preexisting condition. Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo.App.2004). If a claimant establishes either that the preexisting partial disability combined with a disability from a subsequent injury to create a permanent and total disability or that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, the Second Injury Fund is liable. Id. The worker’s ability to compete in the open labor market is the determining factor as to whether the combination of injuries resulted in permanent and total disability. Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo.App.2007).

Richardson v. Mo. State Treasurer, 254 S.W.3d 242, 244 (Mo.App. E.D.2008).

In Ball-Sawyers v. Blue Springs School District, we recently outlined the following applicable legal standards:

Section 287.220 guides the Commission in determining when there is a previous disability that may be compensable from the Second Injury Fund. The Commission must first determine the degree of disability from the last injury alone. Preexisting disabilities are not relevant until this determination is made. If the last injury standing alone rendered [Angus totally disabled], then the Second Injury Fund has no liability....

286 S.W.3d 247, 254 (Mo.App. W.D.2009) (citations omitted).

There is no dispute that Angus is permanently and totally disabled. Accordingly, it will be incumbent upon the Commission to first determine the degree of disability from Angus’s “last injury.” “The determination of a specific amount or percentage of disability awarded to a claimant is a finding of fact within the unique province of the Commission.” Landers v. Chrysler Corp., 963 S.W.2d 275, 284 (Mo.App. E.D.1997). We note that in rejecting Angus’s claim, the Commission concluded that “even if I had found that he developed osteoarthritis — or that such was aggravated — at work, I nonetheless would have found that Mr. Angus was totally disabled by the virtue of his severe rheumatoid arthritis alone.” For all of the reasons previously explained at length above, this conclusion was in error. Therefore, on remand the Commission shall determine and proportion the degree of disability in accordance with the uncontradicted medical testimony.

Because Dr. Koprivica concluded that Angus’s total and permanent disability was caused in part by rheumatoid arthritis (which may constitute a pre-existing condition), this medical opinion is suggestive of the fact that the Second Injury Fund may be liable for Angus’s disability. “If a claimant establishes either that the preexisting partial disability combined with a disability from a subsequent injury to create a permanent and total disability or that the two disabilities combined result in a greater disability than that which would have occurred from the last injury alone, the Second Injury Fund is liable.” Richardson, 254 S.W.3d at 244.

Here, Dr. Koprivica testified that there was a synthesis between both types of arthritis so that they created Angus’s permanent total disability, which is precisely the situation wherein the Second Injury Fund may become liable. Id. While Dr. Koprivica testified that the genesis of his rheumatoid arthritis was not work related, Dr. Koprivica further opined that Angus’s work made his rheumatoid arthritis progress to the extent that this condition, when combined with his osteoarthritis, left him totally disabled. Dr. Koprivica made this clear by stating that the sum of the two conditions was greater than their parts in that they caused a “significant enhancement of the combined disabilities.” Otherwise, had Angus been suffering merely from a 25% osteoarthritis disability, Dr. Koprivica made clear that Angus would not be totally and permanently disabled.

Therefore, we remand this matter for findings and conclusions consistent with the guidance of this opinion and relevant Missouri law.

Conclusion

The judgment of the Commission, denying Angus’s workers’ compensation claim, is hereby reversed and remanded.

All concur.

      . In clarifying the proper standard of review, Hampton overruled a large number of prior appellate decisions on this discrete point of law. 121 S.W.3d at 223, 224-32. We cite and rely on several such cases in this opinion for legal propositions unrelated to the standard of review, without further notation.

      . Section 287.800 RSMo was amended in 2005 to require strict construction of the Workers’ Compensation Act. Neither party disputes that this case should be governed by the prior version of the statute since his injury preceded the amendments. See also Lawson v. Ford Motor Co., 217 S.W.3d 345, 349 (Mo.App. E.D.2007) (concluding that 2005 amendments do not apply retroactively to injury predating their enactment).

      . It should be noted that the legislature substantially revised the text of § 287.020 in 2005. "In addition to amending the statute’s text, the 2005 amendments expressly abrogated various judicial decisions interpreting § 287.020.” Van Winkle, 258 S.W.3d at 894 (citing Section 287.020.10). As was previously noted, the Fund does not dispute Angus's assertion that this case should be decided under the law as it existed prior to the 2005 amendments since his injury preceded the amendments.

      . The Fund takes no issue with the general proposition that "repetitive trauma” can result in an "accident” pursuant to Missouri law. Kelley v. Banta & Stude Constr. Co., 1 S.W.3d 43, 49 (Mo.App. E.D.1999). Nor does the Fund take issue with the proposition that osteoarthritis can be caused by repetitive trauma and that, therefore, in theory, osteoarthritis is the type of injury which would constitute a compensable injury if proven to have been caused by one’s employment.

      . In addition to Dr. Koprivica, two other doctors evaluated Angus’s specific medical conditions, and both of these doctors made written findings giving specific medical opinions as to which type of arthritis caused his debilitating injuries. However, neither of these doctors’ testimony nor their reports were admitted into evidence, and therefore the sole evidence regarding the substance of their opinions comes from Dr. Koprivica’s occasional reference to them in making his ultimate medical conclusions. The first doctor, Dr. Whitley, was Angus’s personal treating doctor prior to filing the instant workers' compensation claim, and Dr. Whitley apparently opined that his injuries were caused solely by osteoarthritis. The second doctor, Dr. Killman, was hired by the Employer to evaluate Angus for the sole purpose of litigating Angus’s workers’ compensation claim against the Employer. Dr. Killman opined that Angus’s injuries were predominately the result of his rheumatoid arthritis, but even Dr. Killman conceded in his report that ”[t]here may be some element of osteoarthritis, which may have been exacerbated to a small degree by his occupation.”
      Finally, it is also worth noting that Michael Dreiling also testified at the hearing as a vocational expert; however, because it has never been disputed in this litigation that Angus is totally and permanently disabled, we need not delve into the substance of this testimony.

      . The Commission expressly slated that because neither Angus nor the Fund offered the reports from either doctor into evidence that it was "hesitant to make any findings based on snippets of their reports which simply were referenced by Dr. Koprivica” and that, therefore, the Commission was limited to "evaluating only Dr. Koprivica’s opinions.” Section 490.065.3 states that "[t]he facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.” To the extent that Dr. Koprivica relied on these experts' testimony and reports to reach his ultimate conclusions, the Commission was not free to disregard this properly admitted evidence. Accordingly, the fact that there was a universal consensus in this regard should have given the Commission pause before reaching a contrary medical finding.

      . We do not believe it is necessary for the Commission to hold further evidentiary hearings or to allow the admission of additional medical evidence in light of the fact that there is sufficient medical evidence in the record for the Commission to make the requisite findings and conclusions.

      . This was an issue originally submitted to the ALJ for it to be addressed at the original hearing, but this issue was not resolved in light of the ALJ’s ruling.

      . From the AU's opinion, it appears that the Commission based this conclusion on Dr. Ko-privica’s "acknowledgment that Mr. Angus’ rheumatoid arthritis alone could totally disable him,” but this finding misconstrues the uncontradicted medical testimony before the Commission. Dr. Koprivica testified to the following on cross-examination: "There certainly has been progression with the rheumatoid arthritis up until today. And whether or not that would be sufficient to totally disable him, I can say it's possible, but I can’t tell you that it’s — with a reasonable degree of medical certainty.” Accordingly, based on the uncon-tradicted medical evidence, the Commission had no basis to conclude that Angus's rheumatoid arthritis alone totally disabled him because there was no medical causation testimony that opined this within a reasonable degree of medical certainty.

      . We do not wish to insinuate that the Second Injury Fund’s liability is a foregone conclusion because there may be legal issues that have not been raised before this Court at this time.

      . Because Angus’s First Point Relied On is dispositive of this appeal, we need not turn to the merits of his Second Point Relied On.


source: Caselaw Access Project

author: PATRICIA L. COHEN, Judge.

license: Public Domain

text:
    UNERSTALL FOUNDATIONS, INC., Holdings, Inc., Respondent, v. Caroline M. CORLEY, Mortgage Electronic Registration Systems, Inc., South and Associates, P.C., Trustee, Edward Jones Mortgage, LLC and Joyce Novotny, Appellants, and Bruce J. Zebel, Defendant.
    No. ED 93624.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 12, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 23, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      Richard F. Huck III, Clayton, MO, for appellants.
    Kurt A. Voss, Washington, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Caroline M. Corley (Corley) appeals from the judgment of the Circuit Court of St. Louis County in favor of Unerstall Foundations, Inc. (Unerstall) on its claims for quantum meruit and enforcement of a mechanic’s lien. On appeal, Corley claims that: (1) the trial court erred in not reducing Unerstall’s recovery by virtue of either a set-off or recoupment and the trial court’s judgment in favor of Unerstall is inconsistent with its judgment in favor of Corley and against Zebell; (2) Unerstall failed to prove that Corley was unjustly enriched as required for a claim of quantum meruit; (8) the trial court applied the wrong interest rate and calculated interest based on an incorrect commencement date; and (4) Unerstall’s mechanic’s lien statement was deficient because it did not contain a “just and true account” of Uner-stall’s demand. We affirm in part and reverse and remand in part.

Background

On April 2, 2007, Corley contracted with Bruce Zebell d/b/a Bruce J. Zebell L.L.C. Construction Management Services (Ze-bell) to construct a new house for Corley with Zebell serving as the general contractor on the project and Corley agreeing to pay $216,134. Zebell hired Unerstall as a subcontractor to perform concrete work on the house’s footings, foundation, and basement floor pursuant to plans prepared by Contempri Homes and approved by the City of Richmond Heights (the City). The agreement between Zebell and Unerstall provided that interest on any unpaid balance would accrue at two percent per month. Unerstall did not have an agreement with Corley.

In July 2007, other subcontractors hired by Zebell surveyed and excavated footings for the house. After the footings were dug, Unerstall poured the footings and foundation. Unerstall did not participate in digging the footings or setting the final grade for the footings. Unerstall later poured a concrete floor for the basement and a driveway, sidewalks, and two patio slabs. Unerstall last worked on the property on October 22, 2007.

After Unerstall completed its work, Cor-ley discovered multiple problems with Ze-bell’s work including that a portion of the footings did not comply with the applicable building code. The building code requires that the depth of all footings be a minimum of thirty inches below the final grade. On November 27, 2007, Corley terminated her contract with Zebell.

Unerstall submitted invoices totaling $31,478.90 to Zebell for the concrete work, with the last invoice submitted on October 18, 2007. Unerstall also submitted a demand letter through his counsel to Corley requesting payment on December 21, 2007. Neither Zebell nor Corley paid Unerstall for the concrete work. On March 27, 2008, Unerstall filed a mechanic’s lien statement against the property for the sum of the invoices pins interest. Unerstall attached supporting documentation to the lien statement including the invoices, time sheets, and materials receipts.

On July 11, 2008, Unerstall filed suit against Corley and Zebell seeking, inter alia, enforcement of the mechanic’s lien and recovery for quantum meruit. Corley denied Unerstall’s allegations and filed a cross-claim against Zebell alleging breach of contract. The trial court held a bench trial on February 27, 2009, and March 23, 2009.

At trial, Albert Unerstall, Unerstall’s president, testified that Unerstall was not responsible for either the grading or digging of the footings, another subcontractor excavated the footings before Unerstall arrived on the job site, and Unerstall was only responsible for pouring the footings, foundation, and the external flatwork. Mr. Unerstall further testified that he followed Zebell’s directions because Zebell was the general contractor on the project. Mr. Unerstall conceded that he did not have any agreement with Corley regarding the interest rate to be charged on unpaid balances and that the depth of a portion of the footings did not comply with the building code.

Zebell confirmed Mr. Unerstall’s testimony that Unerstall was not responsible for the grading or digging of the footings and that as general contractor, Zebell directed Unerstall’s work. Zebell also testified that Unerstall poured the footings consistent with the approved plans and his directions and he had no issue with the work Unerstall performed. Zebell admitted that some of the footings did not meet building code requirements.

The City building commissioner and senior building inspector opined that if the depth of any of the footings was less than thirty inches below grade, then such footings did not comply with the building code. However, the building commissioner testified that the City approved the footings and did not find any issues with Uner-stall’s work. Corley’s architect also testified that a portion of the footings did not comply with the building code because they were not sufficiently deep. He proposed a method to make the deficient footings code compliant, but the repair would cost approximately $36,500.

Corley testified that she paid Zebell and the other subcontractors, excluding Uner-stall, a total of $178,214.75 before terminating Zebell. Corley hired other contractors to repair Zebell’s mistakes and complete the construction on the house. Corley paid the new contractors a total of $68,987.46. Corley admitted that Uner-stall performed work on the house for which she had not paid anyone and that she did not have any evidence that Uner-stall’s work did not conform to the approved plans or Zebell’s directions.

The trial court entered a judgment in favor of Unerstall against Corley and Ze-bell, jointly and severally, on its claims for enforcement of a mechanic’s lien and quantum meruit. The trial court specifically found that Unerstall performed its work on the project in a workmanlike manner and awarded Unerstall $31,478.90 in damages and interest at a rate of two percent beginning on November 6, 2007. The trial court also found in favor of Corley on her cross-claim against Zebell and awarded her $36,500 for the cost of repairing the footings and $30,487.46 for the excess costs Corley incurred in completing the house. Corley filed a motion for new trial, which the trial court denied. This appeal followed.

Standard of Review

We will affirm the judgment of the trial court in a court-tried case unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court erroneously declared or applied the law. Mo. Land Dev. Specialties, LLC v. Concord Excavating Co., L.L.C., 269 S.W.3d 489, 496 (Mo.App. E.D.2008) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the judgment. Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179, 184 (Mo. banc 2009). We disregard all evidence and inferences contrary to the judgment. Id,. This court will generally defer to the trial court’s findings of fact but will review conclusions of law without any deference. Mo. Land Dev. Specialties, 269 S.W.3d at 496.

Discussion

1. Set-off, Recoupment, and Inconsistent Judgments

In her first point on appeal, Corley contends the trial court erred in failing to reduce Unerstall’s award for the cost of repairing the footings because “Corley was entitled, under the doctrine of recoupment, to a set-off.” Corley argues either recoupment or set-off is warranted because the evidence supports a finding that Unerstall performed its work in an unworkmanlike manner by failing to comply with the applicable building code. Unerstall asserts that the trial court did not err because Corley’s claim of defective performance did not apply to work for which Unerstall was responsible. Corley also claims in her first point that the trial court’s judgment in favor of Unerstall was fatally inconsistent with the judgment in favor of Corley on her cross-claim against Zebell.

Though Corley refers interchangeably to recoupment and set-off in her brief, they are distinct theories. See

Tindall v. Holder, 892 S.W.2d 314, 326 (Mo.App. S.D.1994). Set-off is a remedy employed by a defendant “to discharge or reduce plaintiff’s claim by an opposite claim arising from a transaction extrinsic to the plaintiffs cause of action.” Sveum v. J. Mess Plumbing, Inc., 965 S.W.2d 924, 926-27 (Mo.App. E.D.1998) (internal citation omitted). Set-off permits a trial court to enter an affirmative judgment in favor of a defendant if defendant’s claim exceeds the plaintiffs claims. Edmonds v. Stratton, 457 S.W.2d 228, 232 (Mo.App.1970).

Conversely, recoupment is a defense that reduces or eliminates a plaintiffs recovery through proof of plaintiffs defective performance but does not permit an affirmative judgment in favor of a defendant. RPM Plumbing Mech., Inc. v. Jim Plunkett, Inc., 46 S.W.3d 60, 62 (Mo.App. W.D.2001); Edmonds, 457 S.W.2d at 232. Unlike set-off, recoupment allows for a reduction in a plaintiffs claim only if a defendant’s claim of defective performance arises from the same transaction supporting the plaintiffs claim. Edmonds, 457 S.W.2d at 232; see also 80 C.J.S. Set-off and Counterclaim § 37 (2010). To establish a right to recoupment, a defendant must prove that the plaintiff performed defective work. See Edmonds, 457 S.W.2d at 232-34.

We first find that the trial court did not err in refusing to apply a set-off to the judgment in favor of Unerstall. Corley’s claims of Unerstall’s defective performance did not involve “a transaction which is extrinsic to the plaintiffs cause of action.” Thus, there was no basis for the trial court to reduce Unerstall’s award through set-off. Edmonds, 457 S.W.2d at 232.

We next consider whether Corley established a basis for recoupment. To do so, Corley must show that the trial court erred in not finding Unerstall’s perform-anee defective. See Edmonds, 457 S.W.2d at 232. However, we find there is sufficient evidence to support the trial court’s finding that Unerstall performed its work in a workmanlike manner and implicit finding that Unerstall was not responsible for the deficiencies in the footings. Zebell and Mr. Unerstall both testified that Zebell hired other subcontractors to set the elevations for the footings, excavate the footings, and finish grading on the project. Mr. Unerstall also testified that Unerstall followed Zebell’s directions and merely poured the footings after they had been dug. Zebell further testified that there were no issues with the work that Uner-stall performed on the footings. Because the trial court’s finding that Unerstall performed its work in a workmanlike manner is supported by sufficient evidence, Corley fails to establish a basis for recoupment.

Corley also contends that the trial court’s judgment in favor of Corley and against Zebell for $36,500 is fatally inconsistent with the finding that Unerstall performed its work in a workmanlike manner. The trial court based its judgment in favor of Corley on “the cost of repouring the footings due to the insufficient grading.” The evidence at trial supported a finding that Unerstall was not responsible for the depth of the footings. Thus, it was not inconsistent for the trial court to find that Unerstall performed its work in a workmanlike manner while also entering judgment against Zebell for the cost to repair the footings. Point denied.

2. Quantum Meruit

In her second point on appeal, Corley contends the trial court erred in entering judgment in favor of Unerstall on its claim for quantum meruit. Specifically, Corley argues that because in order to complete the house, she paid more than the contract price to Zebell and other contractors, Unerstall failed to demonstrate that Corley was unjustly enriched. Uner-stall responds that it proved Corley was unjustly enriched by presenting evidence that Corley did not pay anyone for the work Unerstall performed.

The principal function of the cause of action for quantum meruit is to prevent a defendant’s unjust enrichment through the retention of a benefit without paying its reasonable value. County Asphalt Paving Co., Inc. v. Mosley Constr., Inc., 239 S.W.3d 704, 710 (Mo.App. E.D.2007); International Paper Co. v. Futhey, 788 S.W.2d 303, 306 (Mo.App. E.D.1990). Payment or non-payment determines whether a defendant was unjustly enriched. Green Quarries, Inc. v. Raasch, 676 S.W.2d 261, 265 (Mo.App. W.D.1984). Thus, to recover on a claim for quantum meruit, a plaintiff must generally establish that “the plaintiff provided to the defendant materials or services at the defendant’s request or with the acquiescence of the defendant, that the materials or services had reasonable value, and that the defendant, despite the demands of the plaintiff, has failed and refused to pay the reasonable value of such materials or services.” Lee Deering Elec. Co. v. Pernikoff Constr. Co., 247 S.W.3d 577, 582 (Mo.App. E.D.2008) (internal citation omitted).

However, a subcontractor alleging quantum meruit against a property owner must also plead and prove that the owner failed to pay not only the subcontractor but also the general contractor for the work performed by the subcontractor. International Paper Co. v. Futhey, 788 S.W.2d 303, 306 (Mo.App. E.D.1990). Without such a requirement, “the defendant owners could be required to pay twice for the same benefit.” Green Quarries, 676 S.W.2d at 266.

Here, there is no evidence that Corley paid for the work Unerstall performed. Corley expressly conceded during trial that she had not paid anyone for the concrete work performed by Unerstall. “Payment or non-payment by the owner is a factor which determines ... unjust enrichment.” Green Quarries, 676 S.W.2d at 265. Without proof that she paid either Zebell or Unerstall, Corley fails to establish that Unerstall did not prove the necessary elements for quantum meruit.

In Archway Kitchen & Bath, Inc. v. Lands Dev. Corp., this court addressed whether a property owner’s admission that he or she did not pay for work performed provided sufficient evidence to support a trial court’s judgment in favor of a subcontractor on a claim for quantum meruit. 838 S.W.2d 13, 15 (Mo.App. E.D.1992). There, the property owners claimed they paid the full contract price to the general contractor and therefore the subcontractor failed to prove non-payment by the property owners. Id. at 14. However, the subcontractor introduced evidence that the property owners explicitly admitted that they had not paid anyone for the materials furnished by the subcontractor. Id. We found that “this evidence ... establishes that they did not pay anyone for the services rendered by [the subcontractor,]” and held that there was substantial evidence to support the trial court’s judgment in favor of the subcontractor on its claim for quantum meruit. Id. As in Archway Kitchen & Bath, Corley’s admission that she had not paid anyone for Unerstall’s work provided substantial evidence to support the trial court’s judgment.

Given Corley’s admission, her reliance on International Paper Co., 788 S.W.2d 303 and Northeast Painting Co. v. AOC Int’l (U.S.A.), Ltd., 831 S.W.2d 711, 712 (Mo.App. W.D.1992) is misplaced. In International Paper, this court reversed the trial court’s judgment entered upon a jury verdict in favor of a subcontractor against property owners on a claim for quantum meruit. Id. at 306. We held that the property owners were not unjustly enriched because they had “paid the amount they were required to pay under the construction contract in the manner specified in that contract....” Id. In so holding, this court noted, “[e]ven though the subcontractor remains unpaid and thus suffers detriment, equity will not require the owner to pay twice.” Id. (citing Green Quarries, 676 S.W.2d at 264). Northeast Painting Co. similarly held that a subcontractor could not recover on a quantum meruit claim because the property owners paid more than the contract price to the general contractor and its subcontractors. 831 S.W.2d at 712. In those cases, a judgment in favor of the subcontractor required the property owner to pay twice for the same work. Here, there is no evidence that Corley paid twice for Unerstall’s work. To the contrary, the evidence establishes that Corley did not pay either Zebell or Uner-stall for the work Unerstall performed. Point denied.

3. Interest Award

In her third and fourth points on appeal, Corley claims the trial court used an incorrect interest rate and commencement date when it calculated prejudgment and postjudgment interest against her. More specifically, Corley argues the trial court improperly relied on an interest rate specified in the contract between Unerstall and Zebell rather than the statutory interest rate because she never agreed to the contractual interest rate. Unerstall responds that the contract to which Uner-stall and Zebell agreed is sufficient to support the trial court’s award of interest at the two percent rate provided for in the contract between Unerstall and Zebell. Corley also asserts that the trial court improperly used November 6, 2007 as the starting point for interest because this date predates Unerstall’s demand for payment.

A trial court must award prejudgment interest for a successful claim for the enforcement of a mechanic’s lien and may award prejudgment interest to a plaintiff prevailing on a liquidated quantum meruit claim. Am. Prop. Maint. v. Monia, 59 S.W.3d 640, 646 (Mo.App. E.D.2001). Section 408.020 provides, in relevant part, that prejudgment interest shall be calculated at “the rate of nine percent per annum, when no other rate is agreed upon.... ” Section 408.040.1 also mandates that, absent a contractual provision for a higher rate of interest, judgments “shall bear [interest at] nine percent per annum until satisfaction....”

We find that the trial court erred as to Corley, in applying an interest rate exceeding the statutory interest rate in the absence of an agreement between Unerstall and Corley. The trial court found that Unerstall and Zebell entered into an agreement providing that “past due accounts are charged a 2% monthly service charge.” However, the record before us contains no evidence that Corley either agreed to the interest rate provision of the contract between Unerstall and Zebell or entered into any contract with Unerstall providing for a two percent per month interest rate. In fact, Mr. Unerstall admitted that Corley never agreed to the two percent per month interest provision. “Where, as here, the j>arties have no agreement as to the rate of interest, the rate in Section 408.020 applies to the award of prejudgment interest on such claims.” Am. Prop. Maint., 59 S.W.3d at 646. Similarly, in the absence of an agreement, the statutory rate of Section 408.040.1 applies to the trial court’s award of postjudgment interest.

Corley next argues that the trial court erred in calculating prejudgment interest from November 6, 2007 because the undisputed evidence demonstrates that Unerstall did not demand payment from Corley until December 21, 2007. Under Section 408.020, a creditor ¡nay recover prejudgment interest only after the creditor has demanded payment. Baris v. Layton, 43 S.W.3d 390, 397 (Mo. App. E.D.2001). The date from which the trial court should calculate prejudgment interest is a factual question for the trial court. Am. Prop. Maint., 59 S.W.3d at 646.

Our review of the record reveals that there was no evidence that Unerstall demanded payment from Corley on or before the date used by the trial court. Instead, the evidence, including Mr. Unerstall’s testimony, demonstrated that Unerstall did not submit to Corley any invoices or communications regarding payment until Un-erstall’s attorney sent a demand letter on December 21, 2007. Therefore, the trial court erred in calculating its award of interest against Cox*ley beginning on November 6, 2007. Instead, the trial court should have calculated interest from December 21, 2007. Baris, 43 S.W.3d at 397-98. We grant points three and four.

4. Mechanic’s Lien

In her final point on appeal, Coi--ley claims the trial court eired in entei-ing its judgment for a mechanic’s lien in favor of Unerstall because Unerstall’s mechanic’s lien statement failed to state a “just and true account.” More specifically, Corley argues Unerstall’s lien statement is deficient because it does not “itemize or disclose the labor rate(s) of its various employees.” Unerstall responds that its mechanic’s lien statement is sufficient to constitute a “just and true account.”

A claimant seeking a mechanic’s lien must “file with the clerk of the circuit court of the proper county a just and true account of the demand due him ...” Section 429.080 RSMo. (Supp.2007). The filing of a “just and true account” is “a condition precedent to the right to maintain an action and enforce a lien on property.” Mo. Land Dev. Specialties, 269 S.W.3d at 497. The purpose of the “just and true account” is so “the landowner and others interested may discern from the lien statement information sufficient to permit an investigation to determine whether the materials the claimant asserts he has furnished were actually used in the construction of the building, whether they were lienable items, and whether the amount charged is proper.” Id. (internal citation omitted).

However, neither Section 429.080 nor the relevant case law défines what constitutes a “just and true account.” Structure & Design, Unlimited, Inc. v. Contemporary Concepts Bldg. & Design, Inc., 151 S.W.3d 904, 907 (Mo.App. W.D.2004). “Rather, whether a lien statement is a ‘just and true account’ depends on the particular facts of each case.” Mo. Land Dev. Specialties, 269 S.W.3d at 497.

Here, the trial court found that Uner-stall’s lien statement “contained a just and true account of the amount due [Unerstall] for work, labor and concrete materials furnished by it.” We find that there was substantial evidence to support the trial court’s finding. For its lien statement, Unerstall submitted documentation, including its original proposal, invoices, and job summaries prepared at the site by the company foreman, showing the type of work performed, the amount of work performed, and any additional labor performed at Zebell’s request. Unerstall also provided receipts for the materials used on Corley’s house.

Corley claims the lien statement is deficient for failing to provide the rates charged and work performed by Uner-stall’s employees. However, Unerstall provided sufficient information from which Corley could investigate Unerstall’s demand for payment. Unerstall did not disclose the labor rate for each employee but filed timesheet reports that detailed when and for how long each employee worked on the Corley jobsite, which is sufficiently specific to satisfy Section 429.080. See Garavaglia v. J.L. Mason of Mo., Inc., 733 S.W.2d 53, 56 (Mo.App. E.D.1987). Furthermore, Mr. Unerstall testified that Un-erstall billed by the unit, such as by square foot for the sidewalks, for most of the work it performed on the project. A lien claimant may satisfy Section 429.080 by basing its invoices on a per unit basis. See Constr. Equip. Mgmt., Inc. v. Dunhill Dev. Corp., 892 S.W.2d 639, 642-43 (Mo.App. E.D.1994). For additional work not included in the per unit prices, Unerstall itemized the amount charged and the total number of labor hours needed. With this information, Corley was able to calculate the labor rate Unerstall applied.

Unerstall’s mechanic’s lien statement was sufficient for Corley to determine what work Unerstall actually performed on the house, whether the work was lienable, and whether Unerstall’s charges were proper. The cases cited by Corley, such as Bresnan v. Basic Elec. Co., 721 S.W.2d 3 (Mo.App. E.D.1986) and Zundel v. Edge, Inc., 705 S.W.2d 113 (Mo.App. E.D.1986), are distinguishable in that Unerstall provided significantly more detail in its lien statement than the lien claimants in those cases. Point denied.

Conclusion

We affirm the judgment against Corley in part and reverse and remand to the trial court to recalculate the prejudgment and postjudgment interest consistent with this opinion.

GARY M. GAERTNER, JR., P.J., and MARY K. HOFF, J., concur.

      .Corley does not argue that Unerstall's quantum meruit claim was unliquidated.

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

      .Unerstall claims that Corley failed to properly preserve this point because Corley did not object to the sufficiency of the lien statement at trial. Unerstall, however, fails to cite any applicable legal support for this proposition, and therefore, we will consider the merits of Corley’s point on appeal.


author: JAMES EDWARD WELSH, Judge.

text:
    STATE of Missouri, ex rel. LACLEDE GAS COMPANY, Respondent, v. PUBLIC SERVICE COMMISSION OF THE STATE OF MISSOURI, Appellant.
    No. WD 72179.
    Missouri Court of Appeals, Western District.
    Oct. 19, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      Steven C. Reed, Jaime N. Ott, Jefferson City, for Appellant.
    Michael C. Pendergast, Rick E. Zucker, St. Louis, MO, for Respondent.
    Before LISA WHITE HARDWICK, C.J., JAMES EDWARD WELSH, J, and CHARLES E. ATWELL, Sp.J.
   JAMES EDWARD WELSH, Judge.

This appeal involves a dispute over whether the Public Service Commission unlawfully and unreasonably rejected a tariff filing by Laclede Gas Company to recover the gas cost portion of its bad debts through a mechanism known as a purchased gas adjustment. On appeal, Laclede contends that the Commission’s decision rejecting its tariff was unlawful and unreasonable because (1) the gas cost portion of bad debt is a gas cost, (2) the evidence established that Laclede did not exercise substantial influence over bad debt levels, and (8) the inclusion of unpaid gas costs in the purchased gas adjustment mechanism does not constitute unlawful single-issue ratemaking. We affirm.

On July 9, 2008, Laclede filed a proposal with the Commission asking the Commission to allow it to amend its tariffs to use the purchased gas adjustment mechanism to recover the gas cost portion of its bad debts. Currently, Laclede is able to seek recovery of its bad debts through its general base rate. Indeed, as part of an overall rate case, the Commission determines the amount of bad debt expense that a company is likely to incur. The Commission then considers that amount of bad debt expense, along with the other expenses and revenues, to establish a rate that will allow the company to recover its cost of service from its customers. The amount of bad debt that a company is allowed to recover in a rate case, however, is just a forecast of what those expenses will be. If the actual level of debt rises above the amount allowed in the rate case, a company runs the risk of not recovering all of its costs in regard to the bad debt. Thus, Laclede sought to amend its tariffs to use the purchased gas adjustment mechanism to recover from its customers the difference between the gas cost portion of its actual bad debt write-offs and the gas cost portion of the bad debts write-offs that are currently being recovered through its base rate.

The Commission held an evidentiary hearing, and, after the hearing, the Commission rejected Laclede’s tariff. The Commission concluded that it was unlawful to allow Laclede to recover the unpaid gas cost portion of the bad debts through the purchased gas adjustment mechanism because it would constitute improper single-issue ratemaking. The Commission also concluded that Laclede’s bad debt expenses are not gas costs that can be recovered through the purchased gas adjustment mechanism. Further, the Commission found that, because Laclede could exercise substantial influence over the level of bad debts it recognizes in its books, Laclede’s bad debt expenses are not costs that Laclede could recover through the purchased gas adjustment mechanism. Laclede filed a petition for writ of review of the Commission’s decision with the circuit court, and the circuit court reversed the Commission’s decision and set it aside as unlawful. The Commission, thereafter, filed this appeal.

Because, however, we review the decision of the Commission rather than the decision of the circuit court, Rule 84.05(e) requires that the party aggrieved by the agency decision file the appellant’s brief and that the party aggrieved by the circuit court’s decision file the respondent’s brief. Thus, Laclede filed the appellant’s brief in this case, and the Commission filed the respondent’s brief. This court also permitted the Office of the Public Counsel to file a brief as amicus curiae.

Our review of the Commission’s decision has two steps: first we must determine “whether the Commission’s order is lawful, and second, whether the order is reasonable!.]” State ex rel. Mo. Gas Energy v. Pub. Serv. Comm’n, 186 S.W.3d 376, 381 (Mo.App.2005). Lawfulness is determined by whether or not the Commission had the statutory authority to act as it did. Id. at 382. Reasonableness depends on whether or not “(i) the order is supported by substantial and competent evidence on the whole record, (ii) the decision is arbitrary, capricious or unreasonable, or (iii) the Commission abused its discretion.” Id. “The party seeking to set aside the Commission’s order has the burden to prove by clear and satisfactory evidence that the order was unlawful or unreasonable. § 386.430[, RSMo 2000].” State ex rel. BPS Tel. Co. v. Mo. Pub. Serv. Comm’n, 285 S.W.3d 395, 401-02 (Mo.App.2009).

In its first point on appeal, Laclede contends that the Commission’s decision rejecting the tariff was unreasonable because the gas cost portion of bad debt is a gas cost that can be recovered through the purchased gas adjustment mechanism. We disagree.

The purchased gas adjustment mechanism essentially allows a gas company to recover the costs it incurs to purchase natural gas by means of a separate charge on the customer’s bill. The Commission’s Regulation, 4 CSR 240-13.015(l)(S), defines the purchased gas adjustment mechanism as “the adjustment procedure approved by the commission to recognize variations in the cost of purchased gas[.]” By allowing use of the purchased gas adjustment mechanism, the Commission “is necessarily determining that due to the unique nature of gas fuel costs, including the fact that natural gas is a natural resource, not a product which must be produced with labor and materials, the fuel cost component of the rate must be treated differently than other components because it is different.” State ex rel. Midwest Gas Users’ Ass’n v. Pub. Serv. Comm’n, 976 S.W.2d 470, 480 (Mo.App.1998). The Commission, therefore, has provided “a mechanism which allows fuel cost increases to be passed on, and fuel cost savings to be passed on, in the amount incurred.” Id. In other words, a company passes on the increases or decreases in the cost of gas to their customers through the use of the purchased gas adjustment mechanism. This mechanism allows a company to adjust its rates in proportion to the rate that the company had to pay for the gas from its suppliers. Id. at 472.

In this case, Laclede is attempting to use the purchased gas adjustment mecha-nisra to recover the cost of the gas supplied to customers who failed to pay their bills. In denying Laclede’s request to amend its tariff, the Commission concluded:

[B]ad debt expense is not a part of Laclede’s cost to purchase gas. Laclede does not make a payment to anyone when it incurs bad debt, rather it merely makes an accounting entry to recognize a loss of revenue. An increase or decrease in Laclede’s level of bad debt has no effect on the amount its wholesale gas suppliers charge Laclede for the natural gas it purchases. Simply put, bad debt is not a gas cost.

We agree.

The purchased gas adjustment mechanism is meant to account for fluctuations in the gas market. It merely provides a mechanism to allow a company to pass on increases or decreases in the cost of gas from a set base cost to its customers. Laclede’s bad debt expense does not affect the rate that Laclede is charged for gas. In other words, the base cost of gas does not increase or decrease based upon the amount of bad debt Laclede incurs. Recovering gas costs associated with bad debts are simply not the type of costs for which the purchased gas adjustment mechanism is meant to be used. Gas costs associated with bad debts are of an entirely different character than gas expenses that are currently passed through to customers under the purchased gas adjustment mechanism.

Laclede contends that no logical distinction exists between gas costs already recovered through the purchased gas adjustment mechanism and gas costs associated with bad debt. Laclede asserts that “the result of all of these adjustment mechanisms is that customers end up paying an amount that is closer to the actual costs incurred to provide them utility service.” We fail to see how passing on the costs of gas used by customers who do not pay their bills to customers who do pay their bills results in the customers “paying an amount that is closer to the actual costs incurred to provide them utility service.” Laclede is merely trying to make paying customers pay for the gas usage of nonpaying customers and is attempting to remove the risk of bad debt from itself and placing it instead on the customers. Again, these are not the type of gas costs for which the purchased gas adjustment mechanism was intended to be used. Bad debt is more accurately described not as a cost but as a loss of earned revenue. It bears no relationship to the cost of fuel, let alone the fluctuation of fuels costs that the purchased gas adjustment is intended to ameliorate.

Further, Laclede has an avenue to seek recovery of its bad debts: through its general rate case. Indeed, in a rate case, the Commission determines the amount of bad debt expense that a company is likely to incur and then considers that amount of bad debt expense, along with the other expenses and revenues, to establish a rate that will allow the company to recover its cost of service from its customers. Bad debt, therefore, is a legitimate part of doing business for which Laclede is allowed to seek recovery from its customers through rates established by the Commission. This is exactly what Laclede has done in the past. The Commission already considered Laclede’s bad debt expense in the last general rate case, and Laclede is already recovering bad debt expenses, including the gas cost portion of the bad debts, through its rates established in the general rate case. We recognize that the amount of bad debt that Laclede is allowed to recover in a rate case is just an estimate of what those expenses will be and that the actual level of debt may rise above the amount allowed in the rate case, which necessarily would mean that Laclede would run the risk of not recovering all of its costs in regard to the bad debt. But, such is merely a part of doing business and provides further data for the Commission to consider in Laclede’s next rate case.

We, therefore, conclude that the Commission’s order rejecting Laclede’s tariff was lawful and reasonable. The gas cost portion of bad debt is a not a gas cost that can be recovered through the purchased gas adjustment mechanism. Because we reach this conclusion, we need not address Laclede’s remaining contentions on appeal regarding whether or not the evidence established that Laclede exercised substantial influence over bad debt levels and whether the inclusion of unpaid gas costs in the purchased gas adjustment mechanism constitutes unlawful single-issue rate-making. We affirm the Commission’s order.

All concur.

      . Indeed, Regulation 4 CSR 240 — 40.018(1 )(B) recognizes the purpose for the purchased gas adjustment mechanism. That regulation says: "Financial gains or losses associated with price volatility mitigation efforts are flowed through die Purchased Gas Adjustment (PGA) mechanism, subject to the applicable provisions of the natural gas utility's tariff and applicable prudence review procedures.” 4 CSR 240-40.018(l)(B).

      . The purchased gas adjustment amount that a company charges customers can change several times throughout the year to reflect the changes in the amount a gas company must pay to purchase natural gas for its customers. Moreover, a company's purchased gas adjustment charges are subject to an actual cost adjustment by which Commission staff reviews the company's gas purchases for prudence and adjusts the company’s rates to ensure that those gas costs are simply passed through to customers dollar for dollar.

      . Laclede asserts that the purchased gas adjustment mechanism is also used to recover other gas related costs, such as increases and decreases in the amount of financial hedging instruments purchased by Laclede to provide price protection for its customers, increases and decreases in carrying costs or interest charges incurred by Laclede to maintain gas supply inventories, increase or decreases in customer usage due to weather, increases and decreases in the revenue achieved by Laclede through its off-system sales and capacity release efforts, and the increases and decreases in the savings reached by Laclede under its Gas Supply Incentive Plan. Laclede contends that these costs can be recovered through the purchased gas adjustment mechanism even though none of these costs have a direct affect on the amount that wholesale gas suppliers charge it for gas. Indeed, in its order, the Commission recognized that the purchased gas adjustment allows Laclede to recover the costs it incurs to purchase natural gas, as well as certain other gas related costs, from its customers. According to the Commission, "Laclede's current [purchased gas adjustment] tariff allows it to recover die commodity and related transportation costs it must incur to obtain the natural gas it supplies to its customers.” In reaching our conclusion that gas costs associated with bad debts are not recoverable through the purchased gas adjustment mechanism, we offer no opinion whether other gas related expenses (including those just noted) may be recovered as a gas cost through the purchased gas adjustment mechanism.

      . General rates, which now include bad debt allowances, should vary the return on equity in direct proportion to risk. If risk to a utility would be reduced by shifting bad debts to customers, there should be a corresponding decrease in return on equity.


author: PER CURIAM.

text:
    Elise MOORE and Curtis Moore, Appellants, v. Joette KORTH, Respondent.
    No. ED 94455.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 19, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 23, 2010.
    Application for Transfer Denied Jan. 25, 2011.
    G. Michael Flotte, Florissant, MO, for Appellants.

      Roy D. Mueller, Jr., St. Louis, MO, for Respondent.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Plaintiffs, Elise Moore and Curtis Moore, appeal from the judgment dismissing their action for personal injuries incurred by Elise Moore and loss of consortium for Curtis Moore against Defendant, Joette Korth. Plaintiffs assert the trial court erred in dismissing their action because it failed “to distinguish between a boiler plate dismissal memorandum and a dismissal memorandum coupled with a request for a specific discretionary ruling from the trial judge prior to dismissal.” Plaintiffs also contend the trial court erred in effectively treating the motion to dismiss as a motion for summary judgment without giving notice and an opportunity to produce evidence.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    Eli L. CRUSOE, Sr., Appellant, v. STATE of Missouri, Respondent.
    No. ED 94144.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 19, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 23, 2010.
    Application for Transfer Denied Jan. 25, 2011.
    Edward S. Thompson, Mo. Public Defender Office, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Jayne T. Woods, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Movant, Eli Crusoe, Sr., appeals the denial of his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Movant contends the motion court clearly erred in denying his Rule 29.15 motion without an evidentiary hearing because he alleged facts not conclusively refuted by the record which, if proven, would entitle him to relief in that the sentencing court considered improper factors in arriving at a twenty-year sentence for armed criminal action.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. The motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 29.15(k). An opinion reciting the detailed facts and restating principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Jasmin ALIHODZIC, Appellant.
    No. ED 93741.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 19, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2010.
    Andrew E. Zleit, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Jasmin AJihodzic (Defendant) ajopeals the judgment of the Circuit Court of the City of St. Louis convicting him of driving while intoxicated and driving while his license was revoked. Defendant contends that the trial court abused its discretion in: (1) sustaining the State’s objection to defense counsel’s question during voir dire about whether the venire panel believed “that eyewitnesses can get something wrong and not necessarily be lying?”; and (2) overruling defense counsel’s objection to the prosecutor’s statement during closing argument that “[i]f we are going to follow [defense counsel’s] standard of proof in the matter, meaning if you were going to have to follow his thought process as to whether or not I have proven a case beyond a reasonable doubt, the citizens of St. Louis are in big trouble.”

We have reviewed the briefs of the parties and the record on appeal and find that the trial court did not abuse its discretion. An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 30.25(b).


author: KAREN KING MITCHELL, Judge.

text:
    CITY OF KANSAS CITY, Missouri, Respondent, v. Georgia J. CARLSON, Appellant.
    No. WD 72198.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2010.
    Application for Transfer Denied Jan. 25, 2011.
    Jonathan Sternberg, Kansas City, MO, for Appellant.
    Megan Pfannenstiel and Lowell C. Gard, Assistant City Prosecutors, Kansas City, MO, for Respondent.

      Before Division II: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

Georgia Jean Carlson appeals the judgment of the Circuit Court of Jackson County (“trial court”) finding that Carlson violated Kansas City’s anti-smoking ordinance, No. 080073, and fining her $50. Carlson claims that Health Department officer Aaron Nieft, who gave Carlson the notice of violation, was without authority to do so because he is not a Kansas City police officer. Carlson’s notice of violation and the information subsequently signed by the prosecutor were, she argues, therefore null and void. ■ She also challenges the trial court’s taking judicial notice of Kansas City housing code provisions. We affirm the judgment of the trial court.

Factual and Procedural Background

Aaron Nieft is a food inspector with the Kansas City Health Department. On April 10, 2009, Nieft accompanied Regulated Industries, a body under the Department of Health that oversees establishments’ compliance with liquor laws, in conducting audits of certain establishments. Nieft was conducting “smoking audits” and stopped with Regulated Industries at JC’s Sports Bar, which was known to be a “problem bar.” When Nieft entered JC’s Sports Bar, he noticed several patrons smoking. Nieft asked the smoking patrons to extinguish their cigarettes, and they complied. Nieft then introduced himself to the bartender, Georgia Carlson, and reminded Carlson that Kansas City (“the City”) had an ordinance prohibiting smoking in places of employment. Carlson responded that the bar’s owner had instructed her to allow smoking in the bar despite the ordinance. Nieft then asked Carlson for her name and identification, which she provided, and Nieft issued Carlson a notice of violation, directing Carlson to appear in the municipal court on May 11, 2009. Carlson refused to sign the notice of violation.

After the municipal court found that Carlson had violated the City’s anti-smoking ordinance by allowing patrons to smoke inside JC’s Sports Bar, Carlson sought a trial de novo before the circuit court. At the trial, Nieft testified as to the facts above and also that he had been trained by the city prosecutor on giving notices of violation such as the one he had issued Carlson. Nieft testified that when he asked a bar or restaurant employee for identification and attempted to issue a notice of violation, the employee did not have to cooperate with him, but if he or she did not, Nieft would call the police and his supervisor to deal with the violation. Carlson was not present and did not testify. The trial court found that the City had shown that Carlson had violated the ordinance and that there was no legal basis to find that Nieft was not permitted to issue the citation. Therefore, the trial court entered judgment for the City. This appeal follows.

Standard of Review

We affirm the judgment of the trial court in a court-tried case 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). In this case, Carlson alleges that the trial court made errors of law, which we review de novo. Jackson v. Mills, 142 S.W.3d 237, 240 (Mo.App. W.D.2004).

Judicial Notice of Municipal Ordinances Not in the Record

For her first point on appeal, Carlson alleges that the trial court erred in “holding” that it could take judicial notice of municipal ordinances, which were not in evidence, that the court felt were analogous to those at issue in Carlson’s case. Section 479.250 provides:

In the trial of municipal ordinance violation cases, a copy of a municipal ordinance which is certified by the clerk of the municipality shall constitute prima facie evidence of such ordinance. If such certified copy is on file with the clerk serving the judge hearing a case and readily available for inspection by the parties, the judge may take judicial notice of such ordinance without further proof.

Outside of the provisions of this statute, a court generally “may not take judicial notice of the existence or contents of city or county ordinances.” Consumer Contact Co. v. State, 592 S.W.2d 782, 785 (Mo. banc 1980). The only city ordinances that were before the trial court were certified copies of the anti-smoking ordinance, No. 080073, and parts of Chapter 34 of the ordinances, which deals with health and sanitation.

After closing arguments, the trial court made the following comments, which Carlson finds objectionable:

[W]hat strikes me as — as very interesting is, is that for many years I believe that the City of Kansas City, Missouri has operated the housing code violation court. I believe it’s Judge Wayne Cagle who is the judge of that court.
It’s also the Court’s understanding that there are a substantial number of personnel present and the past who have, on behalf of the City of Kansas City, Missouri, in enforcement of the building codes, issued citations of a type substantially similar to the one that is at issue here. And there have been literally thousands of citations and thousands of appearances by persons, some represented by counsel, and others who are not[,] in Judge Cagle’s courtroom. Some of those matters have been appealed to this division of the court and have been adjudicated on the basis of these employees. None of them are police officers, but all charged with the responsibility of — based upon the employment within certain divisions of the City of Kansas City, Missouri, the responsibility of the enforcement of those areas of the municipal code that are within the purview of their work.
Now, in this situation it appears that the gentleman who’s testified today, Mr. Nieft, is someone who falls squarely within the confines of what ordinarily has been observed in let’s say the housing code situation. And I think that it wouldn’t be reasonable — Every time we have a statute or rule or regulation, whether it’s the code ordinance 34.474, or if you want to go through and look at other sections of Chapter 84 of the Missouri Revised Statutes, there’s always a duty upon everyone, and particularly the Court, to interpret statutes in a way that achieves a reasonable result and seems to comport with the intent of what those who would have been involved in these statutes would want.
And I don’t think that it would be reasonable to believe that there would be a desire to have the scarce resources — -law enforcement officers, who are going to have to be patrolling these facilities day in and day out to see to it that these various codes, whether they be housing codes or health codes, be enforced.

At this time, Carlson’s counsel objected, stating, “Respectfully, none of this information about the housing codes or the housing court is in evidence. Frankly — ”

And the trial court continued:

I understand that. We’re simply talking about common sense in understanding how this process works. And I think that the Court has the right to take judicial notice of all ordinances and other things that apply. And by analogy, this is the analysis the Court is taking. And it’s on that basis that the Court is going to find ... [tjhat the judgment will be entered for the City, as they’ve met their burden as to the subject of the cause of action, as they’ve proved beyond a reasonable doubt the violation. And at this time I do not find that there is a legal basis to find that this person was not pennitted to issue this notice.

We agree with Carlson that the trial court would have erred if it had taken judicial notice of any city ordinances that were not properly before the court. Although the trial court may have stated that it was entitled “to take judicial notice” of certain matters beyond the record, it did not rely on facts outside the record: to decide a factual issue; as a factor in making a discretionary decision; or to determine a legal issue. The trial court made its decision using common sense and the judge’s own general knowledge about the housing code enforcement process that had been gained through his experience on the bench, which is permitted. The City cites United States v. Bertling, 370 F.3d 818, 820 (8th Cir.2004), which affirmed a case where the trial court refused to approve funds for an expert witness to testify generally on the effects of domestic abuse. The trial judge in Bertling stated that she was already familiar with the effects of domestic abuse from her experience as a trial judge. Id. The Eighth Circuit, affirming, stated that the trial court could properly “rel[y] on its general knowledge about a subject gained by experience on the bench ... to assist it in making a decision.” Id.

As the City argues, and the trial court’s comments suggest, the trial court’s decision was based more upon common sense, practicality, and the judge’s general knowledge of the process of enforcement of municipal administrative ordinances than upon any impermissible judicial notice of particular ordinances, the contents thereof, or cases involving those ordinances not before the court. See Rogers v. State, 265 S.W.3d 853, 858' (Mo.App. S.D.2008) (judge’s decision whether to issue a search warrant a “practical, common-sense decision” based on a review of all circumstances); Prop. Assessment Review v. Greater Mo. Builders, 260 S.W.3d 841, 846 (Mo.App. E.D.2008) (holding that interpretation of contract terms can be a matter of common sense).

Regardless of the trial court’s exact reasoning, we are “primarily concerned with the correctness of the trial court’s result, not the route taken by the trial court to reach that result. Thus, the judgment will be affirmed if cognizable under any theory, regardless of whether the reasons advanced by the trial court are wrong or not sufficient.” Blue Ridge Bank & Trust Co. v. Trosen, 221 S.W.3d 451, 457 (Mo.App. W.D.2007) (internal quotation and citation omitted). Because the trial court’s decision may be affirmed based upon our analysis of Carlson’s second point, as stated below, her first point is denied.

Authority of Health Department Inspectors to Issue Violation Notices

For Carlson’s second point on appeal, she alleges that the trial court erred in refusing to dismiss her case because Nieft, who issued the notice of violation to Carlson, was not a Kansas City police officer. Carlson claims that section 84.460 grants the Board of Police Commissioners of Kansas City “exclusive management and control” of the police force in Kansas City and that, therefore, only Kansas City police officers may issue notices of ordinance violations. In making her argument, Carlson ignores certain portions of the applicable law and takes others out of context.

First, the fact that section 84.460 grants the Board of Police “exclusive management and control” of the police force does not help Carlson. Nieft did not give any orders to any police officers or in any way attempt to control police officers or interfere with police work. He had been prepared to call the police if any bar patrons refused to extinguish them smoking materials, or if Carlson had been uncooperative, but he did not find it necessary. An issuance of a violation notice cannot be deemed an attempt to control the police force.

Second, we disagree with Carlson’s characterization of the City’s health inspectors as a separate police force. The City may properly enact and enforce ordinances designed “to protect the public health and safety” as part of its police power. City of Kansas City v. Jordan, 174 S.W.3d 25, 41 (Mo.App. W.D.2005). The health inspectors, or “smoking police” as Carlson refers to them, are primarily responsible for making sure restaurants and other establishments are clean and in compliance with the City’s health codes. According to the trial testimony, if an establishment is not up to code, the inspector will typically issue a report notifying the establishment of what needs to be done to comply with the codes. However, when an inspector sees a violation of the smoking ordinance, he or she does notify the smoker of the law and instructs the smoker to extinguish the smoking material. The inspector also will issue a violation notice to the person in charge of the establishment at the time if the inspector finds that the establishment owner or manager is aware of the smoking and has allowed it despite the ordinance prohibiting it. We do not find that this behavior on the part of the health inspectors amounts to unauthorized police work.

Section 84.420 grants the police board the duty and responsibility of, among other things, preventing crime and arresting offenders, and guarding the public health. § 84.420.1(2) & (4). Certainly, if a Kansas City police officer had issued the violation notice to Carlson, he would have been within his authority to do so. However, nowhere in Chapter 84 of the Missouri statutes, in Missouri Supreme Court Rule 37, or in the city ordinances of Kansas City, does it specify that a police officer must, in all cases, issue an ordinance violation notice. On the contrary, section 34-3 of the ordinances allows the director of health to determine when a place of public resort is being operated in a manner as to endanger the health of those attending such place. Further, if the owner or manager fails or refuses to make any changes ordered by the director, “the director shall immediately report such delinquency to the city counselor for prosecution before the municipal court.” Id. This section appears to anticipate violation notices for health-related ordinance violations being issued by the director of health (or his or her inspectors) rather than by police officers.

Carlson argues that, to the extent that the ordinances may be interpreted to allow health inspectors to issue violation notices, they conflict with Chapter 84 of the Missouri statutes, which, she argues, grants the Kansas City police force the exclusive power to enforce the ordinances. While we agree with Carlson that the ordinances would be invalid in most cases if they conflicted with state statutes, we do not find that the ordinances conflict with the statutes in this regard; they merely supplement them. Kansas City police resources are undoubtedly unable to adequately enforce ordinances like the anti-smoking ordinance on a daily basis. Common sense dictates that the health inspectors be permitted to issue notices for such ordinance violations.

Moreover, Nieft did not act as a police officer in issuing Carlson the violation notice. Kansas City police officers are “peace officers” and thus subject to the provisions of chapter 590 of the Missouri statutes. That chapter specifically provides that peace officers, who must be licensed, exclude “any person who has no power of arrest.” § 590.020.3(1). Nieft, who admitted that he did not have the authority to make arrests, was unarmed and did not, in any way, present himself to be a police officer. He did not arrest Carlson. Nieft cannot even be said to have “stopped” Carlson within the meaning of the Fourth Amendment. When Nieft entered JC’s Sports Bar and noticed people smoking, he “introduced himself’ to Carlson and asked her for her identification, which Carlson willingly showed him. There is no evidence that Nieft detained Carlson or restricted Carlson’s movement or her activities. Presumably, Carlson continued to tend bar while Nieft was in the establishment. Carlson also clearly did not feel compelled to do anything Nieft requested her to do, as she admitted that she knew she was violating the anti-smoking ordinance and did so because her employer had instructed her to allow patrons to smoke, and she refused to sign the violation notice when Nieft asked her to do so.

Carlson’s oral argument made much of the fact that liquor control agents carried special licenses as support for her contention that food inspectors must also be licensed to issue violation notices. However, unlike food inspectors, liquor control agents are expressly designated by statute as peace officers and, accordingly, required to obtain licenses as peace officers. § 311.630.1; see also Arcelia’s Mexicana, Inc. v. Supervisor of Liquor Control, 824 S.W.2d 72, 74-75 (Mo.App. E.D.1991). This is because liquor control agents are specifically given “full power and authority to make arrests and searches and seizures” for violations of the state’s liquor laws. § 311.630.1. As stated above, food inspectors do not have authority to arrest and, therefore, do not require licenses. See § 590.020.3(1). Carlson’s attempt to analogize the activities of food inspectors with those of liquor control agents is thus not persuasive.

Because Nieft did not exceed his authority and did not act as a police officer, we find that the violation notice was properly issued to Carlson. Therefore, the subsequent information was valid, and the trial court did not err in refusing to dismiss Carlson’s case.

Conclusion

For the above-stated reasons, we find that the trial court’s judgment against Carlson is proper. Nieft had sufficient authority to issue Carlson’s violation notice, which later became an information, and there was sufficient evidence that Carlson violated the ordinance to support the judgment.

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

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

      . Carlson notes an exception for licensed private security guards and cites the regulations pertaining to licensed private security guards. Those provisions have no bearing on this case, since Nieft clearly was not a private security officer when he issued Carlson’s violation notice.

      . A city has no inherent police power and enjoys only that which has been conferred by the state. However, as a charter city, Kansas City has been granted all of the powers of the Missouri general assembly consistent with the state constitution and statutes. Mo. Const. art. VI, § 19(a). While this power is not unlimited, it is very broad. Jordan, 174 S.W.3d at 41.

      . Carlson halfheartedly asserts in her briefing that Nieft did, in fact, arrest her when he issued the violation notice. As explained in this section, however, Nieft clearly did not arrest Carlson at any time. Carlson’s counsel conceded as much at her trial.