text:
    Clarence THOMAS, Appellant, v. TREASURER OF the STATE OF MISSOURI-CUSTODIAN OF the SECOND INJURY FUND, Respondent.
    No. WD 72432.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.

      Christopher P. Sweeny, Frank D. Epp-right and Elaine M. Eppright, Kansas City, MO, for appellant.
    Kimberley Cox Fournier, Kansas City, MO, for respondent.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

This case involves the authority of a workers’ compensation administrative law judge to enter an amended award. Clarence Thomas (“Thomas”) appeals from the decision of the Missouri Labor and Industrial Relations Commission (“Commission”) dismissing his Application for Review of an amended award as untimely. On appeal, Thomas maintains that the Commission erred because the amended award was authorized and his Application for Review was filed within twenty days of the amended award. We reverse and remand.

Facts and Procedural History

Thomas worked as a sergeant for the Kansas City, Missouri, Police Department. Thomas sustained a work injury on July 23, 2006, when he fell and injured both shoulders and his left wrist while apprehending a suspect. Before sustaining this work injury, Thomas had significant disability related to his low back and right knee.

Thomas filed a workers’ compensation claim against the Board of Police Commissioners of Kansas City, Missouri (“Employer”), and the Missouri State Treasurer as custodian for the Second Injury Fund (“Fund”). Thomas settled the claim with his Employer.

Thomas’s claim against the Fund proceeded to a hearing on September 15, 2009. The Administrative Law Judge hearing the claim, the Honorable Rebecca Magruder, (“ALJ”), entered an award for Thomas on November 16, 2009 (“Award”). On one page, the Award included a finding of permanent partial disability attributable to Thomas’s primary injury of 35% and on another page of 23%. The Award reflected calculated compensation in the amount of $9,639.68 using the 35% permanent partial disability finding.

On November 25, 2009, the ALJ entered an amended Award (“Amended Award”). The Amended Award used the 23% permanent partial disability finding to calculate compensation in the amount of $7,832.24. The ALJ stated that the Amended Award was being entered to correct a clerical error. At the time the Amended Award was entered, Thomas had not filed an Application for Review from the Award.

The Amended Award was transmitted to Thomas on November 25, 2009. The Amended Award was accompanied by a letter from the Commission, also dated November 25, 2009, which stated in pertinent part:

Under the provisions of the Missouri Workers’ Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) calendar days of the date of the award ....
If an Application for Review ... is not postmarked or received within twenty (20) calendar days of the date of the award, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

(Emphasis added.) Thomas filed an Application for Review on December 14, 2009, and thus within twenty days of the Amended Award. Thomas specifically stated that he was requesting review of the Amended Award.

On January 22, 2010, the Commission acknowledged receipt of Thomas’s Application for Review. The Commission observed that Thomas’s Application for Review “was not filed within 20 days of the administrative law judge’s original award,” but that his application for review “was filed within 20 days of the issuance of the administrative law judge’s amended award.” The Commission gave the parties the opportunity to file briefs addressing the Commission’s jurisdiction to consider Thomas’s Application for Review of the Amended Award.

On April 6, 2010, the Commission entered an order (“Order”) dismissing Thomas’s Application for Review as untimely. The Commission held that the ALJ had no authority under section 287.610.6 to enter an Amended Award except to correct a clerical error. The Commission held that the Amended Award corrected a judicial error, not a clerical error, as the evidence summarized in the Award would have supported calculating compensation to Thomas based on both a 23% and a 35% permanent partial disability determination. Because the Commission believed the Amended Award was unlawful, and because Thomas’s Application for Review was filed more than twenty days after entry of the Award, the Commission dismissed Thomas’s claim.

This appeal follows.

Standard of Review

Our review of the Commission’s Order dismissing Thomas’s Application for Review is controlled 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;
(3) 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.

Here, the Commission’s Order involves the Commission’s interpretation of section 287.610.6 and, thus, presents a question of law. Our review, therefore, is de novo. Difatta-Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594, 595 (Mo. banc 2008); Noah v. Lindbergh Inv., LLC, 320 S.W.3d 212, 215 (Mo.App. E.D.2010).

Analysis

“[A]n administrative tribunal is a creature of statute and exercises only that authority invested by legislative enactment.” Farmer v. Barlow Truck Lines, Inc., 979 S.W.2d 169, 170 (Mo. banc 1998). The extent of the statutory authority afforded a workers’ compensation administrative law judge is described in section 287.610.6, which provides:

The administrative law judges appointed by the division shall only have jurisdiction to hear and determine claims upon original hearing and shall have no jurisdiction upon any review hearing, either in the way of an appeal from an original hearing or by way of reopening any prior award, except to correct a clerical error in an award or settlement if the correction is made by the administrative law judge within twenty days of the original award or settlement.

Section 287.610.6 thus affords an ALJ the express “jurisdiction to hear and determine claims upon original hearing.” (Emphasis added.) Here, it is uneontested that the Award and the Amended Award each represented the ALJ’s determination of Thomas’s claim following an original hearing. It is also uncontested that the Amended Award was entered within less than twenty days of the Award and before an Application for Review was filed by Thomas.

Though section 287.610.6 first extends an ALJ the express authority to determine claims upon original hearing, the statute then limits an ALJ’s authority, providing that an ALJ:

shall have no jurisdiction upon any review hearing, either in the way of an appeal from an original hearing or by way of reopening any prior award, ex cept to correct a clerical eiror in an award or settlement if the correction is made by the administrative law judge within twenty days of the original award or settlement.”

(Emphasis added.) The Commission has interpreted this language as granting “the administrative law judge only the authority to correct clerical errors in an award within twenty days of the entry of an award.” (Emphasis added.) Based on this interpretation, the Commission concluded that “the administrative law judge had no authority to enter the [amended] award” because “the change made by the administrative law judge in this instance was a substantive change and not a clerical error.”

The Commission has erroneously construed section 287.610.6. The Commission reads section 287.610.6 as divesting an ALJ of the authority to determine a claim at the precise moment an award is entered, with the ALJ’s only continuing authority being the ability to amend an award to correct clerical errors for up to twenty days. The Commission’s construction . of section 287.610.1 mistakenly interprets the words “review hearing” and “reopening” as referring, loosely, to limitations on an ALJ’s authority to modify an award in any substantive manner once it has been issued. That is not, however, what the plain and clear language of section 287.610.6 provides. “The primary rule in statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning.” Cook v. Newman, 142 S.W.3d 880, 886 (Mo.App. W.D.2004).

Applying this principle, the first phrase of section 287.610.6 extends an ALJ the unfettered authority to determine claims upon original hearing. Section 287.610.6 continues to describe when an ALJ’s authority to determine claims terminates, and plainly states that is “upon any review hearing.” A “review hearing” is then defined by section 287.610.6 as “either in the way of an appeal from an original hearing or by way of reopeniny any prior award.” (Emphasis added.)

An “appeal from an original hearing” is a right afforded a claimant under section 287.480. Pursuant to section 287.480.1, an appeal is initiated by the filing of an application for review within twenty days of an award. The appeal is taken to the Commission. Similarly, an award can be “reopened” pursuant to section 287.470 on the Commission’s own motion, or upon the application of a party, but only upon a change in condition warranting recalculation of an award. Section 287.470 vests the authority to hear an application to reopen an award in the Commission.

It is apparent, therefore, that the legislature extended an ALJ the complete authority to determine a claim upon original hearing and that this authority is not extinguished until twenty days passes or until the Commission’s exclusive authority is triggered by an application for review filed pursuant to either section 287.470 or section 287.480.

Thus, an ALJ’s substantive modification of an award is not an unauthorized “review” of the award if no application for review has been filed pursuant to section 287.480. An ALJ’s substantive modification of an award is not an unauthorized “reopening” of the award if no application to reopen has been filed pursuant to section 287.470. We conclude, therefore, that section 287.610.6 does not prevent an ALJ from determining a claim by an amended award so long as the ALJ’s amended award is entered before a review hearing is initiated under either section 287.470 or section 287.480, or prior to the expiration of twenty days following entry of the original award, whichever first occurs.

We are not treading new ground with this construction of section 287.610.6. In Farmer, an ALJ set aside a dismissal of a claim entered for failure to prosecute. 979 S.W.2d at 170. The case was then transferred to a second ALJ for disposition. Id. The second ALJ concluded that he lacked authority to hear the reinstated claim pursuant to section 287.610.2 (Cum. Supp.1993), which provided, in pertinent part:

The administrative law judges appointed by the division shall only have jurisdiction to hear and determine claims upon original hearing and shall have no jurisdiction whatsoever upon any review hearing, either in the way of an appeal from an original hearing or by way of reopening any prior award....

Id. The Commission agreed and determined the claimant’s only recourse would have been to appeal the ALJ’s initial dismissal within twenty days of its entry. Id.

Our Supreme Court reversed, and held that “section 287.610.2 must be read in context with section 287.480 (appeal from an original hearing) and section 287.470 (reopening any prior award).” Id. “When a dismissal ... is set aside prior to an application for review being timely filed and within the twenty-day period to request review, the ALJ is not performing a review function under either section 287.470 or section 287.480.” Id. (emphasis added). The Supreme Court observed that section 287.610.2 “does not prohibit an ALJ from setting aside an order prior to the filing of an application for review and within the twenty days in which the dismissal can be appealed.” Id. Rather, as the Court observed, section 287.610.2 simply “prohibits the ALJ from exercising a review that section 287.410 reserves to the commission.” Id. “[T]he ALJ is authorized to set aside a dismissal ... so long as the ALJ acts prior to the filing of an application for review and within twenty days in which the dismissal can be appealed.” Id. at 170-71 (emphasis added).

Section 287.610 (Cum.Supp.1993) was amended in 1998. The language which had appeared in section 287.610.2 (Cum. Supp.1993) was moved to section 287.6Í0.5 (Cum.Supp.1998) and was modified to read, in pertinent part:

The administrative law judges appointed by the division shall only have jurisdiction to hear and determine claims upon original hearing and shall have no jurisdiction whatsoever upon any review hearing, either in the way of an appeal from an original hearing or by way of reopening any prior award, except to correct a clerical error in an award or settlement if the correction is made by the administrative law judge within twenty days of the original award or settlement.

(Emphasis added.) The portion of section 287.610.2 (Cum.Supp.199B) construed by the Supreme Court in Farmer was not amended. The only change in the section was the addition of the italicized language addressing an ALJ’s authority to correct clerical errors. In 2005, section 287.610.5 (Cum.Supp.1998) was renumbered as section 287.610.6 but was otherwise unchanged in any manner pertinent to this case.

The Commission’s Order did not acknowledge or address Farmer. We are left to surmise that the Commission may have believed the 1998 amendment to section 287.610.2 (Cum.Supp.) to add reference to an ALJ’s authority to correct clerical errors in an award effectively “overruled” Farmer. If, in fact, that is the explanation for the Commission’s disregard of Farmer, we disagree. The language in the current version of section 287.610.6, which was addressed in Farmer, has not been modified by the legislature at any time since Farmer. The analysis in Farmer is not limited to the scenario of setting aside a dismissal for failure to prosecute but, instead, generally concludes that an ALJ’s authority to determine claims upon original hearing does not terminate until either the passage of twenty days from entry of an award or the filing of an application for review under section 287.470 or section 287.480, whichever first occurs. Consistent with the analysis in Fanner, an ALJ’s action to amend, dismiss, reinstate, modify, or otherwise act with respect to an award within these confines does not constitute the performance of a prohibited review function. The legislature’s 1998 amendment of section 287.610.2 to add the language addressing an ALJ’s authority to correct clerical errors did not alter this conclusion. Instead, a plain reading of that additional passage, which also appears in the current version of section 287.610.6, simply excepts from the termination of the ALJ’s authority “upon any review hearing” the ability to correct clerical errors in an award at any time within twenty days of its entry, even if an application for review has been filed. In other words, even if an application for review is filed, an ALJ has the continuing authority to correct clerical errors at any time within the twenty days following an award’s issuance. We observe the Commission possesses similar unfettered authority, as section 287.610.6 also provides that “[t]he commission may also correct a clerical error in awards or settlements within thirty days of its final award.” Thus, to the extent the Commission disregarded Fanner based on a belief that the 1998 amendment to section 287.610.2 (Cum.Supp.1993) rendered Fanner effectively overruled, the Commission is mistaken.

The issue of an ALJ’s authority under the current version of section 287.610.6 was discussed in Calcara v. PPG Indus., Inc., 211 S.W.3d 142 (Mo.App. W.D.2007). In Calcara, an ALJ issued an award before the original hearing in the case had been concluded. Id. at 144. The ALJ then issued an amended award at the conclusion of the original hearing. Id. We held that the ALJ had the authority to enter the amended award. Id. We observed that the amended award “was not the result of the ALJ reviewing the original award” because the original award, having been entered before the conclusion of the hearing, was not entered “upon original hearing.” Id. The Commission’s Order latches on to this language and contends that Calcara held by necessary implication that amendment of an award entered after the conclusion of a hearing would constitute an impermissible review. We disagree. Calcara did not suggest that the word “review” as used in section 287.610.6should be read more expansively than described in Farmer. Calcara simply held, on its facts, that the ALJ’s amended award did not constitute the ALJ’s exercise of a review function under section 287.610.6.

We conclude that the Commission’s interpretation of section 287.610.6 distorts the legislature’s clear intent. Section 287.610.6does not divest an ALJ of the authority to determine an award once an award is entered. Section 287.610.6 does not limit the authority of an ALJ to modify an award to the correction of clerical errors. Instead, section 287.610.6 extends an ALJ the unfettered authority to determine an award until the Commission’s authority is triggered by the filing of an application for a review hearing under either section 287.470 or section 287.480, or until the expiration of twenty days following entry of an award. The ALJ’s authority to determine an award thus includes the authority to substantively modify an award. See AT & T Info. Sys., Inc. v. Wallemann, 827 S.W.2d 217, 224 (Mo.App. W.D.1992) (holding that the powers of an agency in addition to those expressly given by statute include “those lying fairly within its scope”). In addition, section 287.610.6permits an ALJ to correct clerical errors in an award at any time within twenty days after its issuance.

Even had we concluded that the ALJ did not retain the authority to enter the Amended Award, the Commission’s Order would still generate concern. The Commission’s November 25, 2009 letter to Thomas served as the notification of the Amended Award required by sections 287.460.1 and 287.520, and affirmatively advised Thomas that he had twenty (20) calendar days from the date of the Amended Award enclosed with the letter to submit an application for review. Though we need not and do not decide this case on this basis, it would be patently unfair to permit the Commission to dismiss an application for review of an amended award as untimely after having affirmatively advised a claimant of the right to seek review of the amended award under circumstances suggesting that the original award is of no further import.

Conclusion

The Commission’s dismissal of Thomas’s Application for Review is reversed. We remand the case to the Commission for full consideration of Thomas’s Application for Review from the Amended Award.

All concur.

      . All statutory references are to RSMo 2000 as supplemented through 2009 unless Otherwise indicated.

      . Section 287.480 states that an application for review of an award must be made to the Commission within twenty days from the date of the award.

      . Thomas does not contest the Commission's finding that the Amended Award corrected a judicial error and not a clerical error.

      .Section 287.470 limits the right to "reopen” an award to circumstances where a change in condition is demonstrated. Obviously, section 287.470 is necessarily referring to awards that have become final, as an award that is not final would not need to be "reopened" to be modified. Consistent with this logic, the Commission modifies awards on a regular basis when applications for review are timely filed under section 287.480 and could hardly be argued to be doing so based solely on the authority to "reopen" an award under section 287.470.

      . Referring to section 287.610.2 (Cum.Supp. 1993).

      . Section 287.410 permits the Commission to prescribe those Commission functions to be performed by the Division of Workers’ Compensation, but expressly prohibits the Commission from delegating "the power and duty to review any award made under the workers’ compensation law, as authorized by sections 287.470 and 287.480.”

      . Our conclusion is consistent with the Missouri Code of State Regulations which provides with respect to workers' compensation claims at 8 CRS 20.3.010(2)(C) that: "[a]n administrative law judge shall not have any authority to change or modify a final award issued by an administrative law judge after the lapse of twenty (20) days from the date of the issuance of the award or after an application for review (see 8 CSR 20-3.030) has been filed with the commission in connection with any final award, order or decision of an administrative law judge.”


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Vicki WRIGHT, Appellant, v. CASEY’S MARKETING COMPANY and Division of Employment Security, Respondents.
    No. WD 71996.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.

      Richard B. Hankins, Kansas City, MO and John J. Ammann, Godfrey, IL, for appellant.
    Kenneth P. Carp, Clayton, MO and Jeannie D. Mitchell, Jefferson City, MO, for respondents.
    Before Division One: JAMES M. SMART, JR., P. J., MARK PFEIFFER, and CYNTHIA L. MARTIN, JJ.
   PER CURIAM:

Vicki Wright appeals the Labor and Industrial Relations Commission’s denial of her claim for unemployment benefits. The Commission denied Wright’s claim on grounds that her termination was due to misconduct connected with her work. We affirm.

Background

Appellant Vicki Wright worked for Casey’s Marketing Company managing a Casey’s General Store in Adrian for approximately sixteen months. She was hired in April 2008 and became a store manager after seven months.

On August 10, 2009, Casey’s discharged Wright for violating the company’s “Robbery Deterrent Guidelines” by leaving approximately $11,000 worth of deposits unsecured in an unlocked drawer. The company’s written guidelines specifically provided that deposits must be kept in a locked safe at all times except when the manager is counting the money or is ready to leave for the bank to make the deposit. The guidelines further provided that “failure to properly secure a bank deposit will result in suspension or termination.” (Emphasis added.)

On the day of her termination, Wright arrived at work sometime between 4:00 and 4:30 a.m. It was a Monday morning. The weekend’s receipts had not yet been deposited into the bank. Wright took the money out of the safe to count it before taking it to the bank. While in the midst of counting, Wright got a call from another Casey’s store in Harrisonville telling her to come and pick up some produce. Instead of putting the money back in the safe before she left, she put it in an unlocked drawer in the office and closed the office door. She then left the store for about an hour and a half.

While Wright was gone, her immediate supervisor, Josh Anderson, arrived at the store to do an audit. Anderson went to the file drawer in Wright’s office to get paperwork for the audit. There, in a drawer that was “unlocked and accessible to anyone,” he found $11,000 in deposits. When Wright returned to the store, Anderson asked her about the deposits. She admitted that she had left them unsecured despite the company’s policy, and she apologized. Anderson then issued Wright a “corrective action form,” which resulted in her immediate discharge.

Wright filed a claim for unemployment benefits. She did not say anything in her claim about violating the company’s rule with regard to keeping cash deposits in the safe at all times. Instead, she said the reason Anderson gave for firing her was that it “[j]ust wasn’t working out.” She included a litany of problems she had had with her supervisor. She complained that he was “rude” and a “nit-picker,” who rode her mercilessly, changed the rules arbitrarily, and constantly complained about the cleanliness of the store, among other things. When Casey’s, in response to Wright’s claim, brought up the fact that the deposits had been left in an unlocked drawer, Wright at first denied knowing anything about that.

A deputy with the Division of Employment Security ultimately determined that Wright was disqualified from receiving benefits, pursuant to section 288.050.2, because she was discharged for misconduct connected with her work, ie., failing to follow the company’s rule on ensuring that cash is stored in the safe.

Wright appealed the deputy’s decision. Following a telephone hearing, at which both Ms. Wright and her supervisor, Mr. Anderson, testified, the Appeals Tribunal also concluded that Wright was discharged for “misconduct connected with work.” As a result, she was disqualified for unemployment benefits. Wright appealed to the Labor and Industrial Relations Commission. The Commission affirmed and adopted the Tribunal’s decision.

Wright appeals.

Standard of Review

“We review the Commission’s decision in an unemployment compensation case pursuant to Section 288.210 to determine whether the Commission, based upon the whole record, could have reasonably made its findings and reached its result.” Ahearn v. Lewis Cafe, Inc., 308 S.W.3d 294, 296 (Mo.App.2010). “We may modify, reverse, remand for rehearing, or set aside the Commission’s decision only where: 1) the Commission acted without or in excess of its powers; 2) the decision was procured by fraud; 3) the award is unsupported by the facts found by the Commission; or 4) the record lacks sufficient competent evidence to warrant the making of the award.” Id. In the absence of fraud, the Commission’s factual findings are conclusive if supported by competent and substantial evidence. Id. at 296-97; section 288.210.

We defer “to the Commission’s resolution of conflicting evidence regarding a factual issue, the weighing of evidence, and witness credibility.” Guccione v. Ray’s Tree Serv., 802 S.W.3d 252, 256 (Mo.App.2010). However, whether an employee’s conduct constitutes misconduct connected with work is a question of law, which this court reviews de novo. Id. We are not bound by the Commission’s conclusions of law or its application of the law to the facts. Difatta-Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594, 595 (Mo. banc 2008).

Discussion

In her sole point on appeal, Wright argues that the Commission erred in denying her claim for unemployment benefits, pursuant to section 288.050.2, because she did not commit “misconduct connected with [her] work.” Wright says that she “mistakenly” left the deposits in the file cabinet drawer, and, thus, her actions were not intentional but an accident. She says the record shows that her failure to secure the deposits was nothing more than “ordinary negligence,” which does not constitute misconduct.

Misconduct

Pursuant to section 288.050.2, a claimant is disqualified from receiving unemployment benefits if a deputy finds that the claimant “has been discharged for misconduct connected with the claimant’s work[.]” Holly v. Tamko Bldg. Prods., Inc., 318 S.W.3d 284, 287 (Mo.App.2010) (quoting section 288.050.2). “Misconduct,” in this context, is defined as

an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer[.]

Section 288.030.1(23).

An employee’s willful violation of an employer’s reasonable work rule can constitute misconduct. Noah v. Lindbergh Inv., LLC, 320 S.W.3d 212, 216-17 (Mo.App.2010). Generally, the employer must show that the claimant consciously intended to do the act that was found to be a violation of the employer’s policy. See Scrivener Oil Co. v. Crider, 304 S.W.3d 261, 268 (Mo.App.2010). Negligence can, according to the plain language of the statute, be a basis of finding misconduct only when the negligence is “in such degree or recurrence as to manifest culpability ... or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.” Section 288.030.1(23).

The Hearing

Ordinarily, a claimant for unemployment benefits must prove his eligibility. Comeaux v. Convergys Customer Mgmt. Group, Inc., 310 S.W.3d 759, 763 (Mo.App.2010). However, when an employer claims that an employee was discharged for misconduct, the burden shifts to the employer to prove that by a preponderance of the evidence. Id. At the hearing before the Appeals Tribunal, Casey’s introduced a copy of the policy it claimed Wright had violated. It is an extensive rule with multiple parts; the most pertinent part stated:

14. Managers and Assistant Managers should always place the daily deposit in the lower locked safe before and after the store opens. The only time the bank deposit bag should be removed from the lower locked safe is when the Manager or Assistant Manager is ready to leave for the bank. Do not stand and visit or get involved with other duties while you have the bank deposit out of the safe. If something comes up and you can’t leave immediately for the bank, lock the bank deposit in bottom of the safe. Never set the bank deposit down or place it anywhere other than the locked lower compartment of the safe. Failure to properly secure a bank deposit will result in suspension or termination.

Mr. Anderson testified at the hearing that Ms. Wright acknowledged leaving the deposits in the unlocked drawer. A surveillance videotape also confirmed that Ms. Wright left the deposits unsecured. According to Anderson, Wright told him she “knew [the deposits] were not supposed to be in the drawer and that she was sorry.” She indicated to him that it was easier to put the deposits in the file drawer than in the safe. Anderson stated that he believed Wright’s actions amounted to “negligence.” Anderson said that Wright’s failure to secure the deposits was a serious safety violation that increased the potential of being robbed and warranted immediate termination.

Ms. Wright testified that she was made aware of Casey’s policy regarding bank deposits when she trained to become a store manager. She knew it was never acceptable to put bank deposits anywhere but in the safe. She said she “was in a hurry to try to get to the other store to pick up our produce” and “mistakenly left [the deposits] in the bottom of the file cabinet drawer in the office with the office door shut.” (Emphasis added.) She said she did not return the deposits to the safe, because “I was just in a hurry to try to get back so that our food line could open.” Wright said that she initially told the deputy she did not know anything about cash receipts being left in a drawer because that was not the reason she was given for the termination and because she “forgot” that the deposits were left in the drawer.

The Appeals Tribunal found that Casey’s met its burden of showing that Wright’s actions amounted to misconduct connected with work. The Tribunal explained that “[a]n employer has the right to expect its employees to adhere to cash-handling policies” and to “take appropriate measure to safeguard the employer’s assets.” The Tribunal concluded that Wright’s actions were neither accidental, in that “the money was deliberately placed in the drawer,” nor “merely negligent, ” in that her actions “were of such degree as to manifest culpability.” “Despite the claimant’s characterization of her action ... as a ‘mistake,’ ” the Tribunal found, “the evidence demonstrates willful intent,” in that she knew the policy, and yet “chose not to place the money in the safe as directed by the policy, but in a place prohibited by adherence to that policy.”

Analysis

According to Wright, “the sole issue is whether [her] actions were purely negligent or if they rose to the level of an intentional act” that would disqualify her from unemployment benefits. She cites cases which suggest that “ordinary negligence,” on its own, cannot constitute “misconduct.” See, e.g., Yellow Freight Sys. v. Thomas, 987 S.W.2d 1, 4 (Mo.App.1998) (“An isolated act of simple negligence is not, as a matter of law, misconduct connected with work.”). Wright says her testimony that she made a “mistake” and Anderson’s testimony that he believed her actions constituted “negligence” both show that her failure to secure the deposits in the safe constituted “ordinary negligence,” not “misconduct.”

We disagree with the notion that the Commission’s determination is bound by Mr. Anderson’s use of the word “negligence,” as though he necessarily meant mere negligence or simple negligence as that concept has been described in some of our cases. The Commission presumably interpreted his remark as referring to Wright’s failure to observe an employer’s work rule that the employer considered extremely important, so important that the employer placed great emphasis on the rule and stated that the violation thereof “will result” in suspension or termination.

The characterization of Wright’s conduct in leaving the deposits in the file drawer is an issue determined by the facts as found by the Commission and not by the terms used by the witnesses. The Commission made specific factual findings that this was not a “mistake,” “accidental,” or “merely negligent.” “As the trier of fact, the Commission may choose to believe or disbelieve all or none of the testimony of any witness.” Scrivener, 304 S.W.3d at 266. In the absence of fraud, we defer to the Commission’s factual findings if they are supported by substantial and competent evidence in the record. Id.; section 288.210. The Commission’s findings are supported by the evidence, because Wright’s testimony shows that she knew the company’s policy but purposely acted in violation of it.

The Division cites two analogous cases, in which the appellate court rejected the claimants’ argument that their failure to follow the employer’s policy was mere negligence and held that because the claimants were aware of the policy, and deliberately violated that policy, their actions constituted misconduct. In Koret of California, Inc. v. Zimmerman, 941 S.W.2d 886 (Mo.App.1997), the manager of a clothing store failed to comply with the employer’s policy requiring all nightly deposits to be reconciled by a second person and all deposit slips to be signed by two people. Id. at 888-89. The claimant testified that she was aware of the policies but did not have enough time to count the nightly deposits, so she delegated the duties to other employees. Id. at 887. The court found that the claimant “deliberately disregarded” her employer’s reasonable rules, of which she was aware, and that those actions, along with various other failings, justified a finding of misconduct. Id. at 889. In Hurlbut v. Labor & Industrial Relations Commission, 761 S.W.2d 282 (Mo.App.1988), a laundromat manager was discharged for failing to follow the employer’s rule to document any money removed from the cash box on a calculator tape and to put that tape in the cash box. Id. at 283. On the day the claimant was discharged, money had been removed but there was no calculator tape in the cash box. Id. The claimant admitted that she did not prepare the tape because she did not have enough time. Id. at 283-84. The court explained that it was the claimant’s responsibility to insure that the policy was followed regardless of time constraints. Id. at 285.

Like the claimants in those cases, Wright admitted that she was fully aware of Casey’s policy and that she violated that policy. Despite her need to hurry to pick up an order at the Harrisonville store, Wright had a duty, as the manager, to insure that the policy was followed. See id. A significant amount of unsecured cash in a convenience store is, of course, a magnet for trouble, regardless of the reason the cash was not secured. Wright points out that in Koret and Hurlbut, there was more than one violation of the employer’s policy. Even so, nothing in those cases indicates that a single violation of an important company policy, especially one that conceivably could contribute to the risk of robbery, putting lives in jeopardy, cannot constitute misconduct.

Even if Wright’s action here is described as negligence, it would not be mere negligence, such as would be the case if she had inadvertently spilled mustard or chocolate syrup on the receipts to be deposited; rather, it would be negligence of such degree (in light of the importance and the strictness of Casey’s policy) “as to manifest culpability ... or show an intentional and substantial disregard of the employer’s interest.” Casey’s did not have to terminate Wright, of course, but the company did terminate her (in accordance with a policy that said such failure “will result in suspension or termination”), and it terminated her for culpable actions, not for inadvertent actions.

An employer has the right to place priority emphasis on the security of cash receipts. A whole host of problems, including theft, robbery, and attendant danger to human life can flow out of the careless failure to secure the funds. Wright left the money in the unlocked drawer for an hour-and-a-half. As it turned out, no unauthorized person got their hands on the receipts, and the money was discovered by Mr. Anderson when he came to do an audit. But the actions violated the portion of the policy stating that “[i]f something comes up and you can’t leave immediately for the bank, lock the bank deposit in the bottom of the safe.” Casey’s did not intend for this to be an optional rule or a general guideline to be followed when the manager is not in too much of a hurry. Casey’s had a substantial interest in protecting its deposit money, and Ms. Wright willfully and intentionally acted contrary to those interests.

When Wright applied for benefits, she indicated that she was discharged for minor bookkeeping errors. She initially denied to the deputy knowing anything about the cash receipts being left in the unlocked drawer. This fact, and the attitude expressed toward her supervisor in her correspondence with the deputy, reflected poorly on her respect for her employer. The Commission could have believed that this tended to reflect that she did not take the employer’s interests seriously and did not respect the employer’s rule. Although misconduct is an issue of law, where there are inferences to be drawn (such as whether she took the employer’s rule seriously and respected the employer’s interests, and whether the rule was really important to the owner), we grant reasonable deference to the Commission.

The Commission’s determination that Wright was guilty of misconduct was supported by substantial and competent evidence in the record. The Commission did not, therefore, err in finding that Wright was disqualified from receiving benefits. Point denied.

Conclusion

The judgment is affirmed.

      . Casey’s contends that this amounted to three days’ worth of deposits; according to Wright, it was two days’ worth. Both parties agree that it was approximately $11,000.

      . The record is not clear as to whether the store was open for business during this time.

      . Statutory references are to the Revised Statutes of Missouri (RSMo), 2009 Cumulative Supplement, except where otherwise noted.


author: GARY D. WITT, Judge.

text:
    Angelika SAKAGUCHI, Appellant, v. MISSOURI DEPARTMENT OF CORRECTIONS and Division of Employment Security, Respondents.
    No. WD 71997.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.

      Mikah K. Thompson, Kansas City, MO, for appellant.
    Shelly A. Kintzel and Matthew Briesacher, Jefferson City, MO, for respondents.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, GARY D. WITT, Judge and HADLEY GRIMM, Special Judge.
   GARY D. WITT, Judge.

Angelika Sakaguchi (“Sakaguchi”) appeals the decision of the Labor and Industrial Relations Commission (“Commission”) denying her unemployment benefits. For the reasons set forth herein, we reverse.

I. Factual Background

Claimant, Angelika Sakaguchi (“Sakagu-chi”), worked for the Missouri Department of Corrections (“Employer”) as a Human Relations Officer for two years until her employment was terminated on April 22, 2009.

Sakaguchi’s job responsibilities included the recruitment of personnel for her Employer in the western region of the State of Missouri, which required her to travel throughout the region. Sakaguchi was given a letter on April 22, 2009, detailing the reasons for her dismissal and giving her a chance to appeal. The letter stated the reason for her dismissal was her “continued and blatant insubordination and unprofessional behavior.” The specific actions cited in the letter include the following: refusal to work with the Division of Adult Institutions Recruitment Team after being instructed to do so; failure to complete tasks in a timely fashion; failure to contact businesses in the region after being instructed to do so; failure to meet with CAOs in the western region and provide details of those meetings; failure to contact Career Centers in her region; incurring overtime after being told not to do so without prior approval; failure to relocate her office from St. Joseph to a location in Cameron after being instructed repeatedly to do so; failure to check in with the control center in Cameron when arriving to and leaving her office.

Sakaguchi applied for unemployment benefits on April 23, 2009, which was denied by the Missouri Division of Employment Security (“Division”) on May 22, 2009. Sakaguchi appealed this decision on June 1, 2009, and the Appeals Tribunal (“Tribunal”) affirmed the Division’s determination in an order dated September 22, 2009. Sakaguchi then appealed the Tribunal’s decision on October 5, 2009, to the Labor and Industrial Relations Commission (“Commission”), which affirmed and adopted the decision of the Tribunal in full. Of the multiple allegations of misconduct alleged by the Employer, the only allegation for which the Commission found evidentiary support was the allegation that Sakaguchi failed to move her office from St. Joseph and work from the new Cameron location.

The facts as found by the Commission with respect to Sakaguchi’s failure to relocate her office to Cameron are as follows. On December 11, 2008, Sakaguchi was instructed by the director of human resources, her acting supervisor, and the Division director, to relocate her office from St. Joseph, Missouri, to Cameron, Missouri, due to business needs of her Employer. Sakaguchi did not comply immediately but instead appealed the directive to the Division director as she was authorized to do pursuant to Employer’s policies. The director denied the appeal on December 23, 2008, and instructed Sakaguchi to relocate.

Sakaguchi did not immediately relocate but on January 20, 2009, met with the director of human resources to express her concern about her office at the Cameron location, which was located in a trailer and did not provide the privacy necessary for some of her duties. Apparently, the director agreed, because in response, a new office in Cameron was found for Sakagu-chi. That office had to be renovated before she could occupy it, so Sakaguchi was instructed to relocate to the trailer until the alternative space was made ready. Sakaguchi expressed concern over having to move her office twice, so the director told her she could leave the furniture in the St. Joseph location but that all the “soft” supplies, referring to items easily transportable, had to be immediately relocated to the Cameron trailer location. Sakaguchi admitted that she did not move all the soft supplies, claiming she did not have the room necessary for them and all of them were not yet needed at the Cameron location.

Sakaguchi admitted that she would work out of the St. Joseph office on occasion when it was convenient and efficient. On March 20, 2009, Sakaguchi’s supervisor found her working at the St. Joseph location and observed books, office supplies, and brochures still present in the office. At this time the renovations of the Cameron office were still not competed. Sakagu-chi was terminated shortly thereafter.

Based on these facts, the Commission determined that Sakaguchi was disqualified from receiving unemployment benefits because she was discharged for misconduct connected with her work. Sakaguchi now appeals.

II. Standard of Review

Section 288.210 sets this courts standard of review for appeals from final awards of the Commission. That section provides that

The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on 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;
(3) 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.

Section 288.210; Weirich v. Div. of Emp’t Sec., 301 S.W.3d 571, 574 (Mo.App. W.D.2009). “In the absence of fraud, the Commission’s factual findings are conclusive and binding on this Court if supported by competent and substantial evidence.” Ragan v. Fulton State Hosp. & Div. of Emp’t Sec., 188 S.W.3d 473, 474 (Mo.App. E.D.2006) (citing Section 288.210). “Our function is to determine whether the Commission, based upon the whole record, could have reasonably made its findings and reached its result.” Id. (quoting Shields v. Proctor & Gamble Paper Prods. Co., 164 S.W.3d 540, 543 (Mo.App. E.D.2005)). Whether the employee’s conduct qualifies as misconduct connected with work is a determination of law, which this court reviews independently. White v. St. Louis Teacher’s Union, 217 S.W.3d 382, 388 (Mo.App. W.D.2007); Ayers v. Sylvia Thompson Residence Ctr., 211 S.W.3d 195, 198 (Mo.App. W.D.2007). “On matters of witness credibility and resolution of conflicting evidence, the appellate court defers to the Commission’s determinations.” Ayers, 211 S.W.3d at 198 (citing Willcut v. Div. of Emp’t Sec., 193 S.W.3d 410, 412 (Mo.App. E.D.2006)).

III. Analysis

In her sole Point on Appeal, Saka-guehi argues the Commission erred in denying her unemployment benefits because her Employer failed to show that she committed misconduct in connection with her work because the alleged conduct was not a deliberate refusal to comply with her Employer’s directive to move her office to Cameron but, rather, poor workmanship, lack of judgment, or an inability to do the job, which does not constitute misconduct calling for the withholding of unemployment benefits.

Section 288.050.2 provides that a claimant who has been discharged for “misconduct” connected with the claimant’s work is disqualified from receiving unemployment benefits. “Misconduct” is defined by statute as

an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer;

Section 288.030.1(23). ‘“[Wjhen the employer claims that the applicant was discharged for misconduct, the burden shifts to the employer to prove the claim of misconduct connected with work’ ” by a preponderance of the evidence. Hoover v. Cmty. Blood Ctr., 153 S.W.3d 9, 13 (Mo.App. W.D.2005) (quoting McClelland v. Hogan Pers., LLC, 116 S.W.3d 660, 664 (Mo.App. W.D.2003)). “This court has found that each of the criteria for finding misconduct has an element of culpability or intent.” Bostic v. Spherion Atl. Workforce, 216 S.W.3d 723, 725 (Mo.App. W.D.2007) (citing Dixon v. Div. of Emp’t Sec., 106 S.W.3d 536, 541 (Mo.App. W.D.2003)).

The Commission found that Sak-aguchi’s failure to relocate her office was insubordination and that her behavior constituted “misconduct connected with work, as it demonstrate^] a disregard for a standard of behavior that the employer had the right to expect of the claimant.” Sakagu-chi claims that the facts as found by the Commission show that she did not possess the requisite deliberate intent to refuse to comply with instructions.

‘Willful misconduct is established when action or inaction by the claimant amounts to conscious disregard of the interests of the employer or constitutes behavior contrary to that which an employer has a right to expect from an employee.” Dixon [v. Div. of Emp’t Sec.,] 106 S.W.3d 536, 542 (Mo.App. W.D.2003)(quoting Hurlbut v. Labor & Industrial Relations Comm’n, 761 S.W.2d 282, 285 (Mo.App.1988)). “The context of the term ‘disregard’ in the definition of misconduct indicates ... that disregard of the standards of behavior means ‘an intentional slight.’ ” Dixon, 106 S.W.3d at 541.

Dixon v. Stoam Indus., Inc., 216 S.W.3d 688, 693 (Mo.App. S.D.2007). “[A]n employee’s refusal to comply with a lawful and reasonable directive from a supervisor constitutes misconduct as that term is defined by § 288.030.1(24).” Id. Sakaguchi does not contest the reasonableness or lawfulness of her directive to move, but she argues that she did comply with what she believed were her Employer’s demands and, if she was in fact not in compliance, that her failure to do so was not out of a conscious disregard for the Employer’s directive.

The record is bereft of evidence that Sakaguchi deliberately disregarded the directives of her Employer. The fact that Sakaguchi was opposed to the move and went through appropriate channels to appeal the decision in no way counts against her in determining whether she complied with her Employer’s directives. The Commission relied solely on Sakaguchi’s alleged refusal to relocate to the Cameron location as the basis of its finding of misconduct. The Commission’s classification of the directives of her Employer as being “clear” is not substantiated by the record. The record shows that Sakaguchi was instructed to move to a temporary office, a trailer in Cameron, until her permanent office was ready in March 2009. After she voiced discontent with the move, Sakagu-chi’s Employer told her to move her “soft supplies” to the new Cameron' trailer location but that her furniture could remain in St. Joseph so it would not have to be moved twice. The record shows that Sak-aguchi did in fact move the “soft supplies” she needed to operate out of the St. Joseph location and left the remaining materials until the final move to the permanent Cameron location. Sakaguchi testified that she believed she was complying with the Employer’s directives, and the Commission did not find Sakaguchi’s testimony to lack credibility. The Employer insists that Sakaguchi was instructed to move all her “soft supplies” to the trailer location, and the Commission classified her failure to move all the supplies as “insubordination.” “ ‘Insubordination’ means a willful disregard of express or implied direction or a defiant attitude and ‘rebellious’, ‘mutinous’, and ‘disobedient’ are often used as definitions or synonyms of ‘insubordinate.’ ” McClellon v. Gage, 770 S.W.2d 466, 469 (Mo.App. S.D.1989) (citing Shockley v. Bd. of Educ., 149 A.2d 331, 333-34 (De.Super.Ct.1959)). We fail to see how Sakaguchi’s failure to remove surplus materials to the trailer location while other items were allowed to be left until the final move constitutes a willful violation of the directives of her Employer of sufficient seriousness to qualify as “misconduct.” At most, if the directive was in fact clear, this reveals poor judgment, which may be sufficient for her termination but is not sufficient to establish misconduct so as to deny unemployment benefits.

The record shows that Sakaguchi was instructed multiple times that her new office was to be in Cameron. However, the record also shows that Sakaguchi did in fact begin operating out of Cameron and that her job required travel throughout the State. Sakaguchi testified that the reason she was occasionally working out of the St. Joseph office after she was instructed to relocate offices was because it was merely convenient to save time between meetings in St. Joseph. There is no evidence in the record that Sakaguehi was instructed never to return to the office in St. Joseph. The record shows that Sakaguehi believed that during this transition time it was permissible to work out of both the Cameron office and the former St. Joseph office on occasion. “To willfully disregard an employer’s interests, an employee has to be aware of and knowingly or consciously violate an employer’s rule.” Williams v. Enter. Rent-A-Car Shared Servs., LLC, 297 S.W.3d 139, 142 (Mo.App. E.D.2009) (citing Murphy v. Aaron’s Auto. Prods., 232 S.W.3d 616, 621 (Mo.App. S.D.2007)) (“Willful is defined as ‘[proceeding from a conscious motion of the will; voluntary; knowingly, deliberate; intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary.’ ” Black’s Law Dictionary 1599 (6th ed.1990)). There is no such showing here. We cannot say her occasional return to the St. Joseph office when it was convenient or efficient manifests the willful disregard of her Employer’s directives necessary to support a finding of “misconduct.”

A thorough review of the record shows that Sakaguchi’s Employer had many problems with her work performance. However,

“[i]t is essential to keep in mind that whether an employer has solid grounds to terminate an employee is not the same issue as whether the former employee qualifies for compensation.” Miller [v. Kansas City Station Corp.], 996 S.W.2d [120] at 124 [ (Mo.App. W.D.1999) ]. “There is a vast distinction between the violation of a rule of an employer that would justify the discharge of the employee and a violation of such rule that would warrant a determination of misconduct connected with the employee’s employment so as to disqualify him or her for unemployment compensation benefits.” Hoover, 153 S.W.3d at 13 (internal quotations omitted).

Buckley v. Safelite Fulfillment, Inc., 299 S.W.3d 757, 761 (Mo.App. S.D.2009). The sole reason relied upon by the Commission to deny Sakaguehi unemployment benefits was her alleged refusal to move her work location from St. Joseph to Cameron. The record, however, does not support a finding that Sakaguehi demonstrated a willful disregard for the directives of her Employer, the sine qua non of misconduct. At most, Sakaguehi may have demonstrated poor judgment, but that alone is not sufficient for the denial of unemployment benefits based on “misconduct.”

IV. Conclusion

For the foregoing reasons, we conclude that the Employer failed to meet its burden of establishing that the employee was discharged for misconduct. The award of the Commission is reversed and the cause remanded to the Commission.

All concur.

      . Commissioner Hickey wrote a dissenting opinion finding there was no showing of misconduct.


author: JAMES EDWARD WELSH, Judge.

text:
    Craig T. KOLB and Laura S. Kolb, Respondents, v. DEVILLE I PROPERTIES, LLC, Appellant.
    No. WD 72305.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.

      Jonathan C. Browning, Jefferson City, MO, for Appellant.
    Craig Kolb, Jefferson City, MO, pro se.
    Laura Kolb, Jefferson City, MO, pro se.
    Before MARK D. PFEIFFER, P.J., JAMES EDWARD WELSH, and KAREN KING MITCHELL, JJ.
   JAMES EDWARD WELSH, Judge.

DeVille I Properties, LLC, appeals the circuit court’s judgment ordering deVille to pay damages to Craig T. and Laura S. Kolb for their claim of breach of implied warranty of habitability due to a bedbug infestation at one of deVille’s properties. DeVille contends that the circuit court erred in determining that deVille breached the implied warranty of habitability, in ruling against deVille on its counterclaim for damages against the Kolbs, and in ruling that deVille was not entitled to recover its attorney’s fees and court costs from the Kolbs. We affirm.

The evidence established that deVille is the owner and landlord of an apartment complex located in Jefferson City, Missouri. The Kolbs were remodeling their home in Jefferson City, and, due to allergy concerns on the part of Mrs. Kolb and their daughter, the Kolbs decided to rent an unfurnished apartment from deVille for the term of December 2, 2008, through February 28, 2009. Only Mrs. Kolb and her daughter planned to stay in the apartment, as Mr. Kolb continued to live at their home during the renovation. Needing only a temporary place to stay during the renovation, Mrs. Kolb and her daughter moved very few possessions into the apartment, and they slept on air mattresses.

Within a week of their moving into the apartment, Mrs. Kolb and her daughter began noticing red welts on their bodies. They also noticed spots of blood on their sheets and pillow cases. The welts increased in number over the next several weeks. By late December, the condition had progressed to the point that Mrs. Kolb made two trips to an after-hours urgent care facility, where she was treated with steroids and allergy medication.

Mrs. Kolb then visited her allergist, who treated her with medication. When the allergist could not figure out the cause of the welts, he recommended that Mrs. Kolb and her daughter see a dermatologist. Thereafter, Mrs. Kolb and her daughter went to a dermatologist, who took a biopsy of their welts. The dermatologist notified them on February 9, 2009, that the welts were caused by bug bites and advised them to contact the deVille management immediately to remedy the situation.

Mrs. Kolb and her daughter met with an employee of deVille and alerted deVille of their concerns on February 9, 2009. Mrs. Kolb and her daughter told the employee that they had “seen some bugs that were brown and looked like lady bugs, brown lady bugs.” Mrs. Kolb said that her daughter thought that they were bedbugs. So, the employee, Mrs. Kolb, and Mrs. Kolb’s daughter searched the internet and reached the conclusion that the bugs Mrs. Kolb was talking about were bedbugs. During this meeting and in the presence of Mrs. Kolb and her daughter, the employee contacted the pest control company that deVille uses to spray and treat the interior and exterior of its apartment buildings.

Bias Pest Control made arrangements to treat the property on February 10, 2009. Paul Plunkett, an employee of Bias Pest Control, inspected the Kolbs’ apartment and did not find any evidence of bugs. Despite not finding any evidence of bedbugs, Plunkett sprayed the unit with two different chemicals designed to eliminate bedbugs as well as other bugs. Plunkett said that it takes between two to four sprayings to kill bedbugs but that he never was called back by deVille to spray the apartment again. Plunkett also said that he cannot state with “100 percent” certainty that there were no bedbugs in the apartment. He said that, just because he did not see any bedbugs, it “doesn’t mean they are not there.” According to Plunkett, bedbugs can hide, and he would not be able to find them.

After receiving this information, deVille sent a letter to the Kolbs stating an exterminator had serviced the apartment for insects and that “[w]hen they serviced the apartment they did not find any evidence of insects.” The letter recommended that the Kolbs inspect their permanent residence for possible insects, suggesting that the Kolbs should look elsewhere for the source of the bites.

On February 2, 2009, prior to any communications with deVille regarding the bedbug issue, the Kolbs provided notice that they were vacating their apartment. Because deVille did not receive the Kolbs’ notice before February 1, 2009, deVille sent a letter to the Kolbs on February 3, 2009, advising them that they would owe rent through March 31, 2009. The Kolbs, however, refused to pay any additional rent.

After informing deVille about the bites and the bedbugs on February 9th, Mrs. Kolb and her daughter never stayed at the apartment again. The Kolbs fully vacated the unit near the end of February 2009 and demanded that deVille reimburse them for various damages, including the rent that they had paid during their tenancy and their security deposit. DeVille rejected these demands, and the Kolbs initiated a small claims court action in the Small Claims Court Division of the Cole County Circuit Court. In response to this small claims court petition, deVille filed its counterclaim against the Kolbs for unpaid rent and other damages. In its counterclaim, deVille alleged that the Kolbs had failed to properly terminate their lease agreement, which expired on February 28, 2009, and therefore owed rent for the month of March 2009. DeVille further claimed that the Kolbs breached the lease agreement by not returning the property in a good and clean condition and by failing to pay for water service to the unit.

The Small Claims Division held a trial and ruled that the Kolbs were entitled to recover the rent paid for December, January, and February and that the Kolbs did not owe rent for March. The Small Claims Division also found that the Kolbs were liable for $35.00 for cleaning of the apartment and $16.44 for a water bill.

After receiving a copy of the judgment, deVille filed its Application for Trial De Novo with the circuit court. After a trial, the circuit court found that deVille had breached the implied warranty of habitability and entered its judgment in favor of the Kolbs and against deVille in the amount of $1,218. The circuit court ruled that deVille must return the $200 security deposit to the Kolbs but that deVille could offset $16.44 that the Kolbs owed for past due utilities. DeVille appeals.

Review of this court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the judgment of the circuit court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. We view the evidence and inferences in the light most favorable to the circuit court’s judgment and disregard all contrary evidence and inferences. Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647, 652 (Mo. banc 2009). We defer to the circuit court’s resolution of factual issues, as it was in a better position to judge the witnesses’ credibility. Id.

In its first point on appeal, deVille contends that the circuit court erroneously declared or applied the law in determining that deVille breached the implied warranty of habitability. In particular, deVille argues that sufficient and uncontradicted evidence established that: (1) the Kolbs did not alert deVille to any problems with the property for approximately two months; (2) deVille took immediate action to remedy the bedbug infestation upon receiving notice; and (B) the Kolbs did not present any evidence showing that they were fully excused from paying any rent to deVille during their tenancy.

“ ‘[A] landlord impliedly warrants the habitability of leased residential property.’ ” Moser v. Cline, 214 S.W.3d 390, 394 (Mo.App.2007) (quoting Detling v. Edelbrock, 671 S.W.2d 265, 270 (Mo. banc 1984), abrogated on other grounds by Green v. City of St. Louis, 870 S.W.2d 794 (Mo. banc 1994)). As this court noted in Moser, the landlord agrees to provide facilities and services that are “vital to the life, health, and safety of the tenant and to the use of the premises for residential purposes.” 214 S.W.3d at 394. To succeed on a claim for the breach of the implied warranty of habitability, the tenant must prove that the condition of the premises was of such a nature as to render the premises “unsafe or unsanitary.” Id.‘The materiality of a breach of warranty claimed by a tenant shall be determined by factors, among others, of the nature of the deficiency or defect, its effect on the life, health or safety of the tenant, length of time it has persisted and the age of the structure.’ ” Id. (quoting King v. Moorehead, 495 S.W.2d 65, 76 (Mo.App.1973)). A breach of implied warranty must be more than a de minimis violation or minor housing code violation. King, 495 S.W.2d at 76. To prevail on a claim for a breach of the implied warranty of habitability, the Kolbs had the burden of proving: (1) they entered into a lease agreement for residential property; (2) subsequent development of dangerous/unsanitary conditions at the premises that materially impact their life, health, and safety of the tenant; (3) reasonable notice of the conditions to deVille; and (4) the failure on the part of deVille to restore the premises to a habitable condition. Moser, 214 S.W.3d at 395; Detling, 671 S.W.2d at 270. DeVille asserts that the Kolbs failed to prove the necessary elements of reasonable notice of the conditions and failure on the part of the landlord to restore the premise to a habitable condition. We disagree.

Although deVille argues that the Kolbs failed to give reasonable notice of the conditions, in the argument portion of deVille’s brief, it merely states that the Kolbs did not bring deVille’s attention to the bedbug problem until almost the end of their tenancy. DeVille offered no further argument or citation of authority to support its contention. “We deem points not developed in the argument section to be abandoned.” Mortg. Elec. Regis. Sys., Inc. v. Williams-Pelton, 196 S.W.3d 50, 52 (Mo.App.2005). Moreover, the evidence established that once Mrs. Kolb and her daughter became aware that bug bites were the cause of the red welts on their bodies, they contacted deVille immediately. The Kolbs, therefore, gave deVille reasonable notice of the bedbug problem.

As to the whether or not deVille failed to restore the premises to a habitable condition, the evidence established that Paul Plunkett, an employee of Bias Pest Control, inspected the Kolbs’ apartment and did not find any evidence of bugs. Despite not finding any evidence of bedbugs, Plunkett sprayed the unit with two different chemicals designed to eliminate bedbugs as well as other bugs. Plunkett said, however, that it takes between two to four sprayings to kill bedbugs. He noted that deVille never called him back to spray the apartment again. Plunkett also said that he could not state with “100 percent” certainty that there were no bedbugs in the apartment. He said that, just because he did not see any bedbugs, it did not mean that they were not there. According to Plunkett, bedbugs can hide, and he would not be able to find them.

After receiving the information from Plunkett that he did not find any evidence of bedbugs, deVille merely sent a letter to the Kolbs stating that an exterminator had serviced the apartment for insects and that “[w]hen they serviced the apartment they did not find any evidence of insects.” The letter recommended that the Kolbs inspect their permanent residence for possible insects, suggesting that the Kolbs should look elsewhere for the source of the bites. Thus, deVille’s response to the bedbug complaint was that, based on Plunkett’s inspection of the property, deVille did not believe that there were any bedbugs in the apartment and there was no need for de-Ville to do anything further.

The fact that Plunkett did not see any bedbugs and that he sprayed the apartment once with chemicals designed to kill bedbugs does not establish that the premises were returned to a habitable condition. Indeed, Plunkett even said that it takes between two to four sprayings to kill bedbugs. DeVille, however, had no intention of correcting the bedbug problem as evidenced by its not ordering repeated sprayings of the apartment. DeVille did not order additional sprayings because the letter deVille sent to the Kolbs establishes that deVille did not believe that the apartment had bedbugs. The evidence in this case was sufficient to establish that deVille failed to restore the premises to a habitable condition.

DeVille makes much of the fact that it offered evidence that the tenants residing in the apai’tment immediately prior to and immediately after the Kolbs did not have any problems with bedbugs. The circuit court, however, found that this evidence had little relevance, if any, to the issue of whether there were bedbugs in the apartment between December 2008 and February 2009. The circuit court concluded:

[E]ven if the fact that the new tenants did not complain of bedbugs when they moved in after the Kolbs in mid-April can be taken as evidence that there were no bedbugs — which is highly speculative as there are many reasons why a tenant might not raise even a valid complaint— more than a month had passed between February 9th (when Mrs. Kolb and her daughter stopped sleeping in the apartment) and mid-April (when the new tenants moved in). Deprived of any “food source” for five weeks, the bugs either could have died or moved on in search of food.

We agree. That other tenants did not complain about bedbugs in the apartment does not establish that the apartment was uninhabitable because of bedbugs during the time that the Kolbs rented the apartment.

DeVille also asserts that the Kolbs’ claim for breach of implied warranty of habitability must fail because the Kolbs did not present any evidence showing that they were fully excused from paying any rent to deVille during them tenancy. DeVille claims that the circuit court erred in allowing the Kolbs to recover all the rent that they paid while residing in the apartment.

Generally, in a breach of implied warranty of habitability case, a “tenant’s damages are reasonably measured by the difference between the agreed rent and the fair rental value of the premises as they were during occupancy by the tenant in the unhealthful or unsafe condition.” King, 495 S.W.2d at 76. Where the tenant vacates the premises, the measure of damages is “the value of the lease for the unexpired term, that is, the then difference between the fair rental value of the premises if they had been as warranted and the promised rent, computed for that period.” Id. The agreed rent in this case was $405 per month. The circuit court found that the apartment with the bedbug infestation had no value. The circuit court, therefore, found that the Kolbs were entitled to damages in the amount of 100 percent of the rent that they actually paid. We agree. Mrs. Kolb testified as to the lack of habitability of the apartment due to the bedbugs. Thus, the damages in this case correctly represent the difference between $405 (the agreed rent) and $0 (the fair rental value of the premises with a bedbug infestation).

We, therefore, conclude that the circuit court did not erroneously declare or apply the law in determining that deVille breached the implied warranty of habitability and that the Kolbs were entitled to recover all the rent that they paid while residing in the apartment. Point I is denied.

In its second point, deVille asserts that the circuit court erred in ruling against deVille on its counterclaim for damages against the Kolbs for their failure to give timely notice of their intent to vacate. DeVille claims that, because the Kolbs failed to properly terminate their lease agreement, which expired on February 28, 2009, they owed rent for the month of March 2009.

Tenants, however, may use a breach of implied warranty of habitability as a defense to a landlord’s action for rent. Moser, 214 S.W.3d at 394; Detling, 671 S.W.2d at 270. The circuit court found that deVille’s breach of the implied warranty of habitability and the Kolbs’ moving out and the resulting termination relieved them of liability for March’s rent. We agree with the circuit court that, because deVille failed to restore the premises to a habitable condition, the Kolbs’ notifying deVille of the conditions and their moving out of the apartment at the end of their lease term effectively terminated their obligations under the lease.

DeVille further claims that the Kolbs breached the lease agreement by not returning the property in a good and clean condition. The circuit court found that deVille was “not entitled to recover for cleaning, carpet shampooing or other end-of-lease expenses” as the lease was terminated by the Kolbs for deVille’s breach of the implied warranty of habitability. We agree with the circuit court that, because the premises were uninhabitable due to the bedbug infestation, deVille was not entitled to payment for cleaning of the apartment. Point II is denied.

Finally, to the extent that deVille contends that it is entitled to its attorney’s fees because it proved its damages for unpaid rent and damages under the terms of the lease, its contention is without merit given our denials of deVille’s first and second points on appeal. As deVille is not a prevailing party in this action, it is not entitled to attorney’s fees. DeVille also filed a motion for attorney’s fees on appeal with this court. We also deny that motion.

We, therefore, affirm the circuit court’s judgment ordering deVille to pay damages to Craig T. and Laura S. Kolb for their claim of breach of implied warranty of habitability.

All concur.

      . With the Kolbs’ permission, the Kolbs' attorney filed a motion to withdraw, which this court granted. In a letter received by this court, the Kolbs said that they chose for financial reasons not to continue with the case. Thus, the Kolbs did not file a brief or participate in oral arguments in this case.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Anthony ANDERSON, Appellant.
    No. ED 94325.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 14, 2010.
    Gwenda Renee Robinson, St. Louis, MO, for Appellant.
    Chris A. Koster, Attorney General, Daniel N. McPherson, 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.

Anthony Anderson (“Defendant”) appeals his sentence after he was convicted by a jury of second-degree robbery, Section 569.030 RSMo 2000. Defendant argues the trial court plainly erred in sentencing him for his conviction of second-degree robbery, as a prior and persistent offender, to thirty years of imprisonment because the sentence is excessive and so grossly disproportionate to the crime committed as to shock the moral sense of reasonable people.

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 30.25(b).


text:
    STATE of Missouri, Respondent v. Terry T. PICKENS, Appellant.
    No. WD 70783.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.
    S. Kate Webber, Kansas City, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM:

Mr. Terry T. Pickens appeals from his convictions for first-degree domestic assault, section 565.072, and armed criminal action, section 571.015. Mr. Pickens argues that the State failed to show beyond a reasonable doubt that he acted “knowingly.”

For reasons stated in the memorandum provided to the parties, we affirm. Rule 30.25(b).


text:
    Deborah SHEFFIELD, Claimant/Appellant, v. TIPTOP CLEANERS, INC., Employer, and Division of Employment Security, Respondent/Respondent.
    No. ED 94804.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2010.
    Deborah L. Sheffield, St. Louis, MO, pro se.
    TipTop Cleaners, Inc., St. Louis, MO, pro se.
    Larry R. Ruhmann, Jefferson City, MO, for respondent Division of Employment Security.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Claimant, Deborah Sheffield, appeals pro se from an order of the Labor and Industrial Relations Commission affirming the decision of the Appeals Tribunal of the Division of Employment Security finding claimant disqualified from unemployment benefits.

The order of the Labor and Industrial Relations Commission is supported by competent and substantial evidence on the whole record. A written opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.

We affirm the order of the Labor and Industrial Relations Commission pursuant to Rule 84.16(b).


author: DANIEL E. SCOTT, Chief Judge.

text:
    STATE of Missouri, Respondent, v. John C. WOLF, Appellant.
    No. SD 30500.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 17, 2010.

      Ellen H. Flottman, Columbia, for Appellant.
    Chris Koster, Atty. Gen., Timothy A. Blackwell, Asst. Atty. Gen., Jefferson City, for Respondent.
   DANIEL E. SCOTT, Chief Judge.

John Wolf appeals a child molestation conviction. His claim of improper closing argument is not preserved for review and would not merit relief in any event.

Background

We need only note the following. ' The trial’s guilt phase lasted one long day. Wolf did not testify. The state’s critical evidence was the child victim’s in-court testimony and a DVD of her earlier disclosures to a forensic interviewer. Both parties’ closing arguments focused on the victim’s testimony and credibility. The jury deliberated about two hours and asked for clarification of the timeline of events and to see the DVD again before finding Wolf guilty.

The sole point on appeal cites this exchange during rebuttal closing:

PROSECUTOR: ... What you can do is find this defendant guilty and make him face what he did and also along the way make sure there’s not another little girl out there.
DEFENSE ATTORNEY: Objection, Your Honor.
COURT: Overruled.
PROSECUTOR: Make no mistake, it doesn’t just happen once. Make no mistake, a bunch more victims are out there waiting.
DEFENSE ATTORNEY: Objection, Your Honor.
COURT: Overruled.

Wolfs new trial motion, in pertinent part, charged trial court error “in not sua sponte admonishing the State” for improper closing argument.

Analysis

“It is universally held in Missouri” that objections to arguments or statements of counsel must be specific and “call the attention of the Court to the ground or reason for the objection.” State v. Lang, 515 S.W.2d 507, 511 (Mo.1974). “The trial court must be given an opportunity to rule upon an objection giving stated reasons for exclusion. And the point raised upon appeal must be based upon the theory of the objection as made at the trial.” Id.; see also State v. Sheridan, 188 S.W.3d 55, 63 (Mo.App.2006). “Simply stating the word, ‘objection,’ ” as happened here, “preserves nothing for appellate review.” State v. Overton, 261 S.W.3d 654, 666 (Mo.App.2008). When a claim regarding closing arguments is not preserved, our review, if any, is limited to plain error. Sheridan, 188 S.W.3d at 62.

Further, the new trial motion claim of error (no sua sponte admonishment) was not the point now raised. A defendant cannot broaden or change allegations of error on appeal. Overton, 261 S.W.3d at 663 n. 6. The point raised on appeal must be based upon the same objection preserved in the motion for new trial. Id. We will not convict a trial court of an error it was given no opportunity to correct. Id.

Wolfs point thus merits plain error review at best. Such relief is rarely granted as to closing arguments (Dixon, 70 S.W.3d at 550) and has been refused as to statements more pointed than those here. See, e.g., Dixon, 70 S.W.3d at 543, 549-50 (urging jury to send defendant “to prison for the rest of his life so he’s not out raping any other little girls”); State v. Brass, 781 S.W.2d 565, 567 (Mo.App.1989) (“I don’t want his penis in another child’s mouth”). As in Lang, 515 S.W.2d at 512, Wolf “has not asked that we consider the prosecutor’s argument as plain error, but in any event we could not find here that ‘manifest injustice’ resulted.”

Even had the point been preserved, it was no abuse of discretion to overrule nonspecific objections to the brief, ambiguous comments now challenged. Wolf claims the state was improperly portraying him as a future danger, but the prosecutor never so stated or said Wolf would harm other girls. Wolfs current interpretation may be a possibility, but another is that the state was urging jurors to uphold the law and protect children from sexual predation, which is an appropriate argument. See, e.g., State v. Collins, 150 S.W.3d 340, 354 (Mo.App.2004). See also State v. Willis, 764 S.W.2d 678, 680 (Mo.App.1988)(permissible to argue necessity for law enforcement, jurors’ duty to convict the defendant to prevent crime, and results to society of failure to uphold the law). Trial courts have broad discretion to control closing arguments and prosecutors are allowed wide latitude in summation; only if the argument was plainly unwarranted and prejudicially affected the jury’s determination will an abuse of trial court discretion be found. Willis, 764 S.W.2d at 680. Wolf has not shown either of these.

Conclusion

The closing arguments focused on the victim’s testimony and credibility. The challenged comments were brief, ambiguous, not emphasized, and could have been intended and taken as appropriate argument. Especially in these circumstances, when an “objection” was made with no explanation or reason, the trial court did not plainly or otherwise err in overruling it. We affirm the judgment and conviction.

RAHMEYER, P.J., and BATES, J., concur.

      . It also was inconsistent with established law, so we cannot fault the trial court for denying it. See, e.g., State v. Perry, 275 S.W.3d 237, 245-48 (Mo. banc 2009)(reject-ing claim that trial court should have acted sua sponte during closing argument); State v. Rhodes, 988 S.W.2d 521, 526-27 (Mo. banc 1999)(same). See also State v. Dixon, 70 S.W.3d 540, 550 (Mo.App.2002).

      . State v. Cruz, 971 S.W.2d 901, 904 (Mo.App.1998) notes that reversals for improper argument usually involve egregious situations such as a prosecutor persisting in inappropriate comments despite the trial court’s repeated orders to stop. By contrast, these challenged comments were brief, ambiguous, and not the focus of the argument.

      . Such cases also dispose of Wolf’s suggestion that the prosecutor improperly urged jurors to convict based upon protection of society in general rather than on the evidence.