text:
    AAA FAST CASH, LLC, Gil Bashani, Respondents, v. John and Charmaine LATSCH, Appellants.
    No. ED 94180.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 19, 2010.
    Nathan S. Cohen, St. Louis, MO, for appellant.
    Gregory G. Fenlon, Clayton, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

John and Charmaine Latsch appeal the trial court’s summary judgment in favor of AAA Fast Cash LLC and Gil Bashani on the Latsch’s petition alleging fraud and fraudulent inducement.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b). All pending motions are denied.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Curtis RAY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94165.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 19, 2010.

      Timothy J. Forneris, 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.

Curtis Ray (Movant) appeals from the judgment of the Circuit Court of St. Louis County denying his Rule 29.15 motion. Movant contends that the motion court clearly erred in denying him an evidentia-ry hearing on his claims that his trial counsel was ineffective for failing to: (1) subpoena and call a witness who would testify that she believed the allegations against Movant were false; (2) file motions in limine to exclude any evidence of Mov-ant’s prior misconduct or references to Movant’s decision not to testify; and (3) take appropriate action in response to the State’s improper closing argument.

We have reviewed the briefs of the parties and the record on appeal. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).

      . All rule references are to Mo. Sup.Ct. R. (2009), unless otherwise indicated.


text:
    Alice M. KING, Respondent, v. William G. KING, Appellant.
    No. ED 94150.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 19, 2010.
    Wayne Gifford, Waynesville, MO, for appellant.
    Alice M. King, Bonne Terre, MO, pro se.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

William King (Husband) appeals the judgment of the Circuit Court of St. Francois County denying his motion to set aside the decree of dissolution of marriage to Alice King entered September 10, 1986. Husband contends that the trial court erred in not setting aside the decree of dissolution because the affidavit of service on him was “deficient on its face” and therefore the decree is void for lack of jurisdiction.

We have reviewed the briefs of the parties and the record on appeal and find that the trial court did not err in denying Husband’s motion to set aside the decree of dissolution. An extended opinion would have no precedential 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 84.16(b).


text:
    James WILLYARD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93971.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 19, 2010.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., LAWRENCE E. MOONEY, J., and KURT S. ODENWALD, J.
   ORDER

PER CURIAM.

The movant, James Willyard, appeals the denial of his Rule 29.15 motion for post-conviction relief without an evidentia-ry hearing. We have reviewed the parties’ briefs and the record on appeal and find no clear error. Rule 29.15(k). An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The motion court’s order denying the movant’s Rule 29.15 motion for post-conviction relief is affirmed. Rule 84.16(b)(2).


text:
    STATE of Missouri, Respondent, v. Andre SMITH, Appellant.
    No. ED 93838.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 19, 2010.
    Kent Denzel, Assistant Public Defender, Columbia, 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.

Andre Smith (Defendant) appeals the judgment of conviction entered after a jury found him guilty of five counts of statutory rape and five counts of statutory sodomy. Defendant claims the trial court plainly erred by not sua sponte striking the prosecutor’s closing argument in the sentencing phase of trial.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion would have no precedential value. We have, however, prepared a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 80.25(b).


text:
    STATE of Missouri, Respondent, v. Merriel E. HOUSMAN, Jr., Appellant.
    No. ED 93752.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 19, 2010.
    Aexa I. Pearson, Office of the Missouri Public Defender, Columbia, MO, for Appellant.
    Chris Foster, Attorney General, Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Merriel Housman, Jr. (Defendant), appeals from the trial court’s judgment, following a jury trial, convicting him of the class A felony of first-degree assault, in violation of Section 565.050, RSMo 2000 and the class B felony of second-degree domestic assault, in violation of Section 565.073. Defendant was sentenced to two consecutive terms of incarceration for twenty years and five years. Defendant argues that the trial court erred in failing to read certain required jury instructions before opening statements were presented, and in modifying a standard jury instruction that was read later. Finding no manifest injustice, we affirm Defendant’s conviction.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).

      . Unless otherwise noted, all further statutory references are to RSMo 2000.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Dajuan ERBY, Defendant/Appellant.
    No. ED 93744.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 19, 2010.
    Andrew E. Zleit, St. Louis, MO, for Defendant/Appellant.
    Shaun J. Mackelprang, John M. Reeves, Jefferson City, MO, for Plaintiff/Respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

DaJuan Erby appeals from the trial court’s judgment convicting him of unlawful use of a weapon and resisting arrest. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court’s judgment is supported by substantial evidence and is not clearly erroneous. State v. Ross, 254 S.W.3d 267, 272-73 (Mo.App. E.D.2008). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).


text:
    Kevin R. ROSENTHAL, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93700.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 19, 2010.
    Alexandra Johnson, MO Public Defender Office, St. Louis, MO, for appellant.
    Shaun Mackelprang, Jefferson City, MO, for respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Kevin Rosenthal (“Movant”) appeals from the judgment of the Circuit Court of St. Louis County denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We find no error and affirm the motion court’s judgment.

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).

      . All rule references are to Mo. Sup.Ct. R. (2007), unless otherwise indicated.


text:
    Mark HAYES, Claimant/Appellant, v. MCDONNELL DOUGLAS CORP., Employer/Respondent, and Division of Employment Security, Respondent.
    No. ED 94602.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 19, 2010.
    Mark Hayes, St. Louis, MO, Acting pro se.
    Robert G. Pennell, Manchester, MO, for Employer/Respondent.
    Bart A. Matanic, Division of Employment Security, Jefferson City, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Mark Hayes (Claimant) appeals from the Labor and Industrial Relations Commission’s (Commission) decision finding that he was disqualified from unemployment benefits. We have reviewed the briefs of the parties and the record on appeal and conclude the Commission’s decision is supported by competent and substantial evidence. Section 288.210 RSMo 2006. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    Jacqueline MCCARTER, Appellant, v. ALLIANCE FOR COMMUNITY HEALTH, LLC and Division of Employment Security, Respondents.
    No. ED 94610.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 19, 2010.

      Cira R. Duffe, St. Louis, MO, for Appellant.
    Shelly A. Kintzel, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Jacqueline McCarter (hereinafter “Claimant”) appeals from the decision of the Labor and Industrial Relations Commission (hereinafter, “the Commission”), finding she was discharged for misconduct connected with her work and denying her unemployment compensation benefits. Claimant raises two issues on appeal, claiming the Commission erred in its application of the facts to her case and failed to admit an exhibit.

We have reviewed the briefs of the parties and the record on appeal. We find no error of law. An extended opinion would have no precedential value. We have, however, provided a memorandum, only opinion for the use of the parties, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Herbert HOUSTON, Appellant, v. FINNINGER’S CATERING SERVICE and Treasurer of Missouri as Custodian of The Second Injury Fund, Respondents.
    No. ED 94707.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 19, 2010.
    Harry J. Nichols, St. Louis, MO, for appellant.
    Robert W. Frayne, Kris Foster, Atty. General, Karin Krohn Schute, Asst. Atty. Gen., St. Louis, MO, for respondents.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Herbert Houston, the claimant in this workers’ compensation action, appeals from the final award of the Labor and Industrial Relations Commission denying compensation. An opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 84.16(b)(4).


author: PER CURIAM:

text:
    James A. KUOL, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71222.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2010.
    S. Kathleen (Kate) Webber, Assistant Appellate Defender, Kansas City, MO, for Appellant.
    Chris Koster, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division I: JAMES M. SMART, JR., Presiding Judge, and MARK D. PFEIFFER and CYNTHIA L. MARTIN, Judges.
   Order

PER CURIAM:

Appellant, James A. Kuol, appeals from the denial of his Rule 24.035 motion for post-conviction relief after an evidentiary hearing in the Circuit Court of Clay County. Kuol argues that his plea counsel was constitutionally ineffective. We disagree and affirm in this per curiam order and have provided the parties a memorandum of law explaining our ruling today. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Antonio C. CARTER, Appellant.
    No. WD 71146.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2010.
    Susan L. Hogan, Esq., Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Esq., Susan L. Hogan, Esq., Jefferson City, MO, for respondent.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, JAMES E. WELSH and KAREN K. MITCHELL, Judges.
   Order

PER CURIAM.

Following a jury trial, Antonio Carter appeals his conviction on two counts of first-degree robbery and two counts of armed criminal action. Carter contends the circuit court erred in excluding the testimony of a police officer at trial. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the convictions.

AFFIRMED. Rule 30.25(b).


text:
    Bariyo NDEBESA, Appellant, v. SIGNATURE REAL ESTATE, Respondent, Division of Employment Security, Respondent.
    No. WD 71485.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2010.
    Bariyo Ndebesa, Appellant pro-se.
    Larry R. Ruhmann, for Respondent Division of Employment Security.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Bariyo Ndebesa appeals the decision of the Labor and Industrial Relations Commission, which found that Ndebesa was discharged for misconduct connected with work and was, therefore, disqualified from receiving unemployment benefits. On appeal, Ndebesa claims that the Commission’s findings were not supported by competent and substantial evidence. Because a published opinion would have no prece-dential value, a memorandum has been provided to the parties.

The decision of the Commission is affirmed. Rule 84.16(b).


author: CYNTHIA L. MARTIN, Judge.

text:
    MISSOURI RETIRED TEACHERS FOUNDATION, Respondent, v. Chris ESTES, Cole County Assessor, Appellant.
    No. WD 72129.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2010.

      Pamela Q. Henrickson, Jefferson City, MO, for appellant.
    John W. Kuebler, Jefferson 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 a claim of exemption under Section 137.100 from the assessment of ad valorem taxes on real property owned by the Missouri Retired Teachers Foundation (“Foundation”). The Cole County Assessor (“Assessor”) appeals from the trial court’s judgment finding that a parcel of real property owned by the Foundation is exempt from taxation within the meaning of Section 137.100, and enjoining the Assessor from reporting the parcel of real property as taxable on the tax rolls. We affirm in part, and reverse and remand in part, with instructions.

Statement of Facts and Procedural History

The Foundation is a Missouri not-for-profit corporation which was incorporated on March 8, 2001, for both charitable and educational purposes. Pursuant to the Internal Revenue Code, the Foundation is exempt from federal income tax under 26 U.S.C.A. section 501(c)(3).

In September 2005, the Foundation purchased vacant real estate at 3080 DuPont Circle in Jefferson City, Cole County, Missouri (“Property”). On October 25, 2005, the Assessor approved the Foundation’s request to declare the Property exempt from taxation under section 137.100(5), which exempts “[a]ll property, real and personal, actually and regularly used exclusively for religious worship, for schools and colleges, or for purposes purely charitable and not held for private or corporate profit.”

On March 13, 2009, the Assessor notified the Foundation that he believed the exemption afforded the Foundation for the Property “was in error.” The Assessor opined that vacant real property is not being “used” and, thus, cannot be exempt under section 137.100(5). The Assessor’s notification letter advised the Foundation that “[fjor the tax year 2009 this property will be listed on the tax rolls as vacant land. Prior to January 1, 2010 if you have constructed improvements that you feel qualify for exemption please submit a tax exempt application stating the use of the improvements.” When the Foundation received this notice, it was in the process of constructing an office building on the Property. However, as of January 1, 2009, the office building was not complete. Thus, as of January 1, 2009, the Property was properly classified as vacant.

The Foundation appealed the Assessor’s determination to the Cole County Board of Equalization. On July 22, 2009, the Board of Equalization issued a report for tax year 2009, which stated that “[n]otice is hereby given that at the meeting of the County Board of Equalization held on July 21, 2009, the valuation of the property herein below described was not changed by said Board.” The report identified the Property and recited the Assessor’s appraised value of the Property as $126,300 and the Assessor’s assessed value of the Property as $40,420. At the time of this report, the only assessment that had been issued for the Property was the Assessor’s assessment as of January 1, 2009.

The Foundation appealed the Board of Equalization’s decision to the Cole County Circuit Court in August 2009. A trial to the court was conducted on November 30, 2009. Though the appeal was taken from the Board of Equalization’s decision to uphold the Assessor’s assessment of the Property as of January 1, 2009, when the Property was considered vacant, the primary focus of the evidence presented by both parties at trial related to the Foundation’s use of the office building on the Property — a building that was not substantially complete or occupied as of January 1, 2009. The primary dispute between the parties on this subject involved whether the Foundation’s lease of a significant portion of the building to the Missouri Retired Teachers Association (“MRTA”) destroyed the improved Property’s exempt status.

The record does not indicate: (a) that the Foundation sought exemption for the Property as improved by the office building as of January 1, 2010; or (b) that the Assessor made an official determination about the Property’s tax exempt status as of January 1, 2010; or (c) that the Assessor assessed the Property in its improved state as of January 1, 2010. In fact, as the trial of this matter occurred in November 2009, it is self-evident that none of these actions could have been taken at the time of trial.

The trial court entered its Judgment on January 6, 2010. The trial court found that the Foundation’s appeal was from the Board of Equalization’s decision relating to the Property’s taxation as of January 1, 2009. The trial court found that the building on the Property was not substantially complete until October 2009, though temporary occupancy of the Building began in March 2009. The trial court made several findings about the use of the building on the Property by both the Foundation and MRTA from and after March 2009. The trial court found that the Foundation’s “use of its property located in Cole County, Missouri is exempt within the meaning of Section 137.100.” The trial court enjoined the Assessor “from reporting the Property on its tax rolls.”

The Assessor appeals.

Analysis

The Assessor contends in its single point on appeal that the trial court erred in granting the Foundation exemption from taxation of the Property under the test for exemption articulated in Franciscan Tertiary Province of Missouri, Inc. v. State Tax Commission, 566 S.W.2d 213 (Mo. banc 1978). Though the point on appeal is generically stated, the argument portion of the Assessor’s brief is devoted exclusively to discussion of the Property’s eligibility for exemption in its improved state with the MRTA as a tenant. The Assessor has thus failed to assert or preserve any claim that the Judgment is in error with respect to the Property’s eligibility for exemption as of January 1, 2009, when the Property was vacant. Kabir v. Mo. Dep’t of Soc. Servs., 845 S.W.2d 102, 102-03 (Mo.App. W.D.1993) (holding that a matter decided by the trial court but not raised as an issue on appeal is deemed abandoned). The Judgment is, therefore, affirmed as it relates to the Property’s exemption from taxation as of January 1, 2009.

The Property’s eligibility for exemption after it was improved by the office building was not an issue that was ripe for determination at the time of trial. Real property is assessed annually as of the first day of January. Section 137.080. The Property could not have been assessed as improved by the office building, therefore, until January 1, 2010, a date falling after the November 2009 trial. The Assessor’s assessment of the Property as of January 1, 2009, was expressly limited to a determination that vacant property cannot qualify for exemption under section 137.000. The Assessor invited the Foundation to seek exemption for tax year January 1, 2010, should the Property’s use change by that time due to construction. We cannot, therefore, treat the Assessor’s assessment of the Property as of January 1, 2009, as anything more than a determination that the Assessor believed the Property was not eligible for exemption because it was vacant. As a result, we cannot treat the Board of Equalization’s decision to affirm the Assessor’s assessment as of January 1, 2009, as applicable to the Property in any condition other than as vacant.

The trial court had the power to hear the Foundation’s appeal from the Board of Equalization’s decision to uphold the Assessor’s January 1, 2009 assessment of the Property (and the corresponding denial of an exemption for the Property as of that time). Section 138.430.3 provides:

Every owner of real property ... shall have the right to appeal to the circuit court of the county in which the collector maintains his office, from the decision of the local board of equalization ... after the final decision of the board of equalization concerning all questions and disputes involving the exclusion of exemption of such property from assessment or from the tax rolls....

(Emphasis added.) The trial court acknowledged in its Judgment that it was hearing the Foundation’s appeal pursuant to the authority of this statute. As there has never been a final decision of the Board of Equalization concerning the exemption of the Property as of January 1, 2010, in its improved state, it follows that the trial court had no power under section 138.430.3 to enter a Judgment addressing that subject.

Our Supreme Court has concluded that a taxpayer is not obligated to appeal to the Board of Equalization following an assessment of property that ignores a claimed exemption but can appeal such an assessment directly to the circuit court, thus bypassing section 138.430. Council House Redevelopment Corp. v. Hill, 920 S.W.2d 890, 892-93 (Mo. banc 1996). In Council House, the Supreme Court observed:

As a general rule, courts will refrain from acting until the litigants have exhausted all available administrative remedies provided by statute. In establishing a system for the levying of taxes and the appeal of property tax assessments, including those set out in sections 138.060,138.430, and 139.031, the legislature has properly charged administrative agencies with responsibilities associated with the determination of property valuation methods as well as the actual assessment of property.
Proceedings before administrative bodies are not, however, a taxpayer’s exclusive remedy for claiming an exemption from taxation. Washington Univ. v. Baumann, 341 Mo. 708, 726, 108 S.W.2d 403, 413 (banc 1937). “[W]hen a taxpayer does not question the valuation of his property, but asserts it is not subject to the tax, he need not appear before the Board of Equalization but may enjoin the enforcement of the tax.” B & D Inv. Co., Inc. v. Schneider, 646 S.W.2d 759, 762 (Mo. banc 1983).

Though a party may seek to enjoin the enforcement of an assessed tax in the face of a claimed exemption without first appealing the disputed assessment to the Board of Equalization, it is axiomatic that there must first be an assessment requiring the court’s intervention.

Here, though it is evident that the Assessor would likely have taken the position on January 1, 2010, that the Property, as improved, did not qualify for exemption under section 137.100 because of its partial occupancy by the MRTA, “ ‘[r]ipeness does not exist when the question rests solely on a probability that an event will occur.’ ” State ex rel. Kansas Power & Light Co. v. Pub. Serv. Comm’n, 770 S.W.2d 740, 742 (Mo.App. W.D.1989) (quoting Buechner v. Bond, 650 S.W.2d 611, 614 (Mo. banc 1983)). As there has never been an assessment of the Property in its improved state, the trial court did not have the power to determine the Property’s eligibility for exemption in its improved state, as that issue was in the abstract and was not ripe for judicial resolution. See Local 781, 947 S.W.2d at 461 (holding that constitutionality of revision to city charter was not ripe for determination before the revision was enacted). We are required, therefore, to reverse the Judgment of the trial court insofar as it determines the Property’s eligibility for exemption for any tax year other than 2009 and insofar as it enjoins the Assessor from reporting the Property on the tax rolls for any tax year other than 2009.

Conclusion

The Judgment’s determination that the Foundation’s Property is exempt pursuant to section 137.100 as of January 1, 2009, and enjoining the Assessor from reporting the Property on the tax rolls in 2009 is affirmed. In all other respects, the Judgment is reversed. This matter is remanded with instructions to the trial court to enter an amended judgment consistent with this opinion.

All concur.

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

      . The Internal Revenue service granted the original tax exemption on June 17, 2002, and reaffirmed the Foundation's status as tax exempt on June 25, 2008.

      . The legal description of the Property is: Lot No. 2 of Executive Park Subdivision, in the City of Jefferson, Missouri, per Plat of record in Plat Book 11, Page 806, Cole County Recorder’s Office.

      . The Assessor who originally determined that the Property was exempt from taxation was Shawn I. Ordway. The Assessor who later contended that this determination was "in error” was Christopher D. Estes.

      . The transcript of the actual proceedings conducted before the Board of Equalization is not a part of the record on appeal.

      . The MRTA is a Missouri not-for-profit corporation incorporated in 1980. The MRTA is exempt from federal income tax under 26 U.S.C.A. section 501(c)(4).

      . This appeal thus raises an issue involving the application of a revenue law already construed by the Missouri Supreme Court in Franciscan, 566 S.W.2d 213. Article V, section 3 of the Missouri Constitution, which vests exclusive original jurisdiction of appeals addressing the construction of a state revenue law in the Missouri Supreme Court, does not apply. Affiliated Med. Transp., Inc. v. State Tax Comm'n, 741 S.W.2d 25, 27 (Mo. banc 1987).

      .Neither party has raised the issue of ripeness. However, "[rjipeness is a 'tool' of the court, which is used to determine whether a controversy is 'ripe,' or ready for judicial review, or whether by conducting the review, we would simply be rendering an advisory opinion on some future set of circumstances, which we are not permitted to do.” Local 781 Int’l Ass’n of Fire Fighters, AFL-CIO v. City of Independence, 947 S.W.2d 456, 461 (Mo.App. W.D.1997). "Because it is a tool of the court used to determine whether a controversy is ready for judicial review, ripeness, like jurisdiction, is not waived by the failure of a party to raise it at the earliest opportunity.” Id.

      . This opinion should not be construed to encourage or require the Assessor to assess the Property as of January 1, 2010, in disregard of the Foundation's claimed exemption, or to encourage or require the Assessor to disregard the trial court's prematurely expressed views on the issue of the Property's eligibility for exemption in its improved state.


author: JAMES EDWARD WELSH, Judge.

text:
    TREASURER OF THE STATE OF MISSOURI-CUSTODIAN OF THE SECOND INJURY FUND, Appellant, v. Phillip COOK, Respondent.
    No. WD 72019.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2010.

      Andrew J. Dickson, Kansas City, MO, for Appellant.
    Thomas Stein, Kansas City, MO, for Respondent.
    Before LISA WHITE HARDWICK, C.J., JAMES EDWARD WELSH, J., and CHARLES E. ATWELL, Sp. J.
   JAMES EDWARD WELSH, Judge.

The Missouri State Treasurer as Custodian of the Second Injury Fund appeals the Labor and Industrial Relations Commission’s decision that the Second Injury Fund is liable to Phillip Cook for permanent total disability benefits. The Second Injury Fund argues that the Commission erred in awarding Cook benefits because his claim against it was time barred, and therefore, the Commission lacked the authority to consider the claim. The Second Injury Fund also argues that there was not sufficient competent evidence to support the Commission’s award. We affirm.

On November 24, 2003, Cook injured his right shoulder in the course and scope of his employment as a toolmaker with Saint-Gobain Calmar. Cook received medical treatment for this injury until his physician released him from care on October 7, 2005. Saint-Gobain Calmar accepted liability for Cook’s injury and paid him $12,649.50 for medical expenses and $5,953.92 in temporary disability benefits.

In March 2006, Saint-Gobain Calmar agreed to pay Cook a lump sum of $12,076.30, based upon the approximate disability of fifteen percent to his right arm. Saint-Gobain Calmar and Cook memorialized their agreement on the Division’s “Stipulation for Compromise Settlement” form, which they filed with the Division. An administrative law judge approved the stipulation on .March 24, 2006.

On April 13, 2006, Cook filed a claim for compensation against only the Second Injury Fund. Cook alleged that his preexisting disabilities combined with his November 24, 2003 injury rendered him permanently and totally disabled. The Second Injury Fund filed an answer asserting that Cook’s claim was time barred under section 287.430, RSMo 2000.

An administrative law judge (ALJ) held a hearing on this matter in February 2009. The ALJ found that Cook had not filed a claim for compensation against his employer; hence, under section 287.430, he had two years after his November 24, 2003 injury to file his claim for compensation against the Second Injury Fund. Because Cook did not file his claim for compensation against the Second Injury Fund until April 13, 2006, the ALJ concluded that Cook’s claim was time barred and denied it.

Cook filed an application for review with the Commission. The Commission reversed the ALJ’s decision and found that Cook’s claim against the Second Injury Fund was timely. In reaching this conclusion, the Commission relied upon Grubbs v. Treasurer of Missouri as Custodian of the Second Injury Fund, 298 S.W.3d 907, 911 (Mo.App.2009), in which the Eastern District of this court held that a stipulation for compromise settlement constitutes a claim against an employer under section 287.430. Because Cook filed his claim against the Second Injury Fund within one year after filing the stipulation for compromise settlement, the Commission determined that his claim was not time barred. The Commission further found that the combination of Cook’s preexisting disabilities and his primary work injury rendered him unable to compete in the open labor market. Therefore, the Commission ordered the Second Injury Fund to pay Cook permanent total disability benefits. The Second Injury Fund appeals.

On appeal from the Commission’s award in a workers’ compensation case, we may modify, reverse, remand for rehearing, or set aside the Commission’s award only if we conclude that the Commission acted in excess of its powers, that the award was procured by fraud, that the facts found by the Commission do not support the award, or that there was not sufficient competent evidence in the record to warrant making the award. § 287.495.1, RSMo 2000. In the absence of fraud, the Commission’s findings of fact are conclusive and binding. Id. We are not bound by the Commission’s interpretation and application of the law, however, and we afford no deference to the Commission’s interpretation of the law. Pierson v. Treasurer of State, 126 S.W.3d 386, 387 (Mo. banc 2004).

In its first two points on appeal, the Second Injury Fund contends that Cook’s claim for compensation against it was time barred, and therefore, the Commission lacked the authority to consider the merits of his claim. Section 287.430 says that “[a] claim against the second injury fund shall be 'filed within two years after the date of the injury or within one year after a claim is filed against an employer or insurer pursuant to this chapter, whichever is later.” Cook filed his claim against the Second Injury Fund over two years after his injury but within one year after he filed the stipulation for compromise settlement with his employer. The issue, then, is whether the stipulation for compromise settlement constituted a claim filed against Cook’s employer pursuant to Chapter 287, the Workers’ Compensation Law.

As we noted earlier, the Eastern District of this court recently addressed this issue in Qrubbs, 298 S.W.3d at 911. In Grubbs, the Second Injury Fund had contended, as it does here, that the word “claim” in 287.430 refers only to a claim filed on the Division’s “Form WC-21 Claim for Compensation.” Id. at 910-11. The court in Grubbs rejected the Second Injury Fund’s contention after considering the plain and ordinary meaning of the words used in section 287.430. Id. at 911. The court cited the dictionary definition of the word “claim,” which is “ ‘[t]he aggregate of operative facts giving rise to a right enforceable by a court.’ ” Id. (citing Black’s Law Dictionary 240 (7th ed.1999)). This definition does not restrict a “claim” to a filed lawsuit but, rather, says that the facts that support a potential lawsuit constitute a “claim,” presumably regardless of whether a formal lawsuit is filed. Thus, the court in Grubbs concluded that a dispute settled out-of-court in a stipulation for compromise settlement is a “claim” within the plain and ordinary meaning of section 287.430. Id.

The court in Grubbs further found that interpreting a “claim” to include disputes resolved informally through settlement agreements is consistent with the use of the word “claim” in section 287.390, RSMo, the statute governing compromise agreements. Id. Because section 287.390 provides that ALJs can approve only settlements between “parties to claims,” the court reasoned that, if a “claim” referred only to a Form WC-21 Claim for Compensation, then ALJs could approve only those settlements entered into between parties to a dispute for which a Form WC-21 had been filed. Id. As “settlements are encouraged under the law,” the court “decline[d] to find that a party must make a formal filing of a Form WC-21 before a settlement may be approved by an ALJ.” Id. Thus, the court in Grubbs held that a claim against the Second Injury Fund is timely if it is filed in the Division within one year of the stipulation for compromise settlement. Id.

The Second Injury Fund urges us not to rely upon Grubbs because it contends that one of the cases that Grubbs cited, O’Malley v. Mack International Motor Truck Corp., 225 Mo.App. 1, 31 S.W.2d 554 (1930), is not good law. In determining that, under the plain and ordinary meaning of the language of section 287.430, a settlement agreement constitutes a “claim,” Grubbs noted that the court in O’Malley had equated a settlement agreement with a claim for compensation. Grubbs, 298 S.W.3d at 911. In O’Malley, an employee injured in a work-related accident entered into a settlement agreement for compensation with his employer before he discovered other injuries from the same accident. 31 S.W.2d at 555. The injured employee subsequently filed a claim for compensation for those other injuries against his employer. Id. O’Malley held that the injured employee’s filing of the settlement agreement equated to the filing of a claim for compensation that tolled the statute of limitations on the employee’s subsequent claim against his employer. 31 S.W.2d at 557. After O’Malley, the legislature added a tolling provision to section 287.430, which says that “[t]he filing of any form, report, receipt, or agreement, other than a claim for compensation, shall not toll the running of the periods of limitation provided in this section.” Because O’Malley’s statement equating the filing of a settlement agreement to the filing of a claim for compensation for purposes of tolling the statute of limitations on an injured employee’s claim against an employer is no longer valid, the Second Injury Fund urges us not to follow Grubbs.

Grubbs’s citation of this statement from O’Malley was merely dictum, however. It was not essential to the court’s interpretation of the language prescribing the statute of limitations for Second Injury Fund liability. Grubbs resolved the issue of what constitutes a “claim” in this context by ascertaining the plain and ordinary meaning of the word “claim” from the dictionary. 298 S.W.3d at 911. The dictionary definition of “claim” that Grubbs cited is broad enough to encompass both lawsuits and disputes settled informally. Grubbs’s noting that O’Malley and another case, Williams By and Through Wilford v. Barnes Hospital, 736 S.W.2d 33, 38 (Mo. banc 1987), had similarly interpreted the word “claim” in other contexts was unnecessary to Grubbs’s holding and was, therefore, dictum.

The Second Injury Fund also argues that, because the legislature said in section 287.430’s tolling provision that only the filing of a “claim for compensation” and not the filing of an agreement is sufficient to toll the statute of limitations, the legislature intended that all references to a “claim” in the statute mean only a claim for compensation. We disagree. If the legislature had intended that only the filing of a claim for compensation trigger the one-year statute of limitations for Second Injury Fund liability, it would have referred to a “claim for compensation” as it did in the statute’s tolling provision. See Christensen v. Am. Food & Vending Servs., Inc., 191 S.W.3d 88, 92 (Mo.App.2006) (stating that, “[w]hen different terms are used in different subsections of a statute, we presume the legislature intended the terms to have different meaning and effect”). Instead, the legislature said that the one-year statute of limitations for Second Injury Fund liability was triggered “after a claim is filed against an employer or insurer pursuant to this chapter.” § 287.430. A claim that is filed “pursuant to this chapter” is broad enough to include a compromise settlement filed pursuant to section 287.390.

We agree with the Eastern District’s interpretation of section 287.430 in Grubbs. Cook had an enforceable right to compensation against his employer that he asserted in the stipulation for compromise settlement. The stipulation for compromise settlement was filed in the Division and approved by an ALJ in March 2006. The stipulation for compromise settlement constituted a claim filed against Cook’s employer within the plain and ordinary meaning of section 287.430. Cook’s April 13, 2006 claim for compensation against the Second Injury Fund was filed within one year of the stipulation for compromise settlement and was, therefore, timely. Because Cook’s claim for compensation against the Second Injury Fund was timely, the Commission had the authority to consider it. We deny the Second Injury Fund’s first and second points.

In its third point, the Second Injury Fund argues that there was not sufficient competent evidence to support the Commission’s award because the undisputed evidence shows that Cook was not permanently and totally disabled following the November 24, 2003 work injury. To determine whether there is sufficient competent and substantial evidence to support the Commission’s award, we examine the evidence in the context of the whole record. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). The Commission is free to believe or disbelieve any evidence, and we defer to the Commission’s credibility determinations and to the weight it accords testimony and evidence. Clark v. Harts Auto Repair, 274 S.W.3d 612, 617 (Mo.App.2009).

“The Second Injury Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury.” Concepcion v. Lear Corp., 173 S.W.3d 368, 371 (Mo.App.2005). The test for permanent total disability is whether the worker is able to compete in the open labor market. ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 48 (Mo.App.2007). “The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.” Id.

Competent and substantial evidence supports the Commission’s determination that the combination of Cook’s preexisting disabilities and his primary work injury rendered him unable to compete in the open labor market. James A. Stuckemeyer, M.D., a board-certified orthopedic surgeon, independently evaluated Cook and opined that (1) Cook’s numerous preexisting cardiovascular conditions constituted a twenty-five percent permanent partial disability of the body as a whole; (2) Cook’s preexisting back condition constituted a twenty-five percent permanent partial disability to the lumbosacral spine; (3) Cook’s preexisting foot problems from plantar fas-ciitis constituted a fifteen percent permanent partial disability at the level of the ankle bilaterally; (4) Cook’s preexisting left shoulder condition constituted a fifteen percent permanent partial disability at the level of the shoulder; (5) Cook’s preexisting right shoulder condition constituted a fifteen percent permanent partial disability at the level of the shoulder; and (6) Cook’s primary work injury to his right shoulder constituted a twenty percent permanent partial disability at the level of his right shoulder.

Based upon Cook’s preexisting disabilities and primary work injury, Stuckemeyer opined that he would place Cook on several permanent physical restrictions. These restrictions included: no prolonged standing or walking, no lifting greater than ten to fifteen pounds on an occasional basis, no repetitive traversing of steps, no ladder climbing, no overhead use of the right arm, and no pushing or pulling with the right arm greater than ten to fifteen pounds on an occasional basis.

According to Mary Titterington, a vocational rehabilitation consultant who evaluated Cook, Stuckemeyer’s restrictions would preclude Cook from returning to his former occupation, which consistently required standing, walking, bending, pushing, pulling, reaching, and lifting. She determined that Stuckemeyer’s restrictions limited Cook to sedentary work. However, Cook had only an eighth-grade education, limited math and academic skills, and no GED, which Titterington believed would disqualify him for many sedentary jobs. Moreover, Titterington did not believe that Cook, who was sixty-four, was a good candidate for vocational retraining due to his age, physical restrictions, lack of a high school diploma, and limited educational skills. Titterington opined that Cook was not employable in the open labor market because there was no expectation that any employer would hire him.

The Second Injury Fund did not present testimony or evidence from any medical or vocational experts to contradict Stuckem-eyer’s or Titterington’s opinions. On appeal, the Second Injury Fund argues that Stuckemeyer’s and Titterington’s opinions were not sufficient to support the determination that Cook was permanently and totally disabled because there was evidence that Cook returned to work for a while following his treatment for his primary work injury. Cook testified, however, that, when he returned to work, he found that, physically, “it was just a real struggle to come in every day and do my job.” According to Cook, he has difficulty pushing, pulling, lifting, and reaching. He also has difficulty with prolonged standing, walking, and sitting.

The Commission expressly stated that it found Cook’s testimony credible. The Commission also expressly stated that it found Stuckemeyer’s and Titterington’s opinions credible. We defer to the Commission’s credibility determinations. Clark, 274 S.W.3d at 617.

Cook’s testimony, along with Stuckem-eyer’s and Titterington’s opinions, constituted sufficient competent and substantial evidence to support the Commission’s determination that the combination of Cook’s preexisting disabilities and primary work injury rendered him permanently and totally disabled. We deny the Second Injury Fund’s third point.

We, therefore, affirm the Commission’s award.

All concur.

      . Cook filed amended claims in November 2006 and February 2008.

      . The Second Injury Fund noted in Grubbs, as it does here, that the legislature directed the Division and Commission in section 287.630, RSMo 2000, to prepare and furnish to the public all forms, including claim forms, that are necessary for the efficient administration of the Workers' Compensation Law. Grubbs, 298 S.W.3d at 910. Because of this, the Second Injury Fund argued that the legislature intended that all references to a “claim” in section 287.430 mean only a claim filed on a Form WC-21 Claim for Compensation. Id. at 911.

      . The tolling provision was added in 1947 to section 3727, RSMo 1939, the predecessor to section 287.430.


author: JOSEPH M. ELLIS, Judge.

text:
    Lenda MUNSON, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 71827.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2010.
    Martin L. Perron, for Appellant.
    Jeannie D. Mitchell, for Respondent.
    Before Division Three: JOSEPH M. ELLIS, Presiding Judge, ALOK AHUJA, Judge and KAREN KING MITCHELL, Judge.
   JOSEPH M. ELLIS, Judge.

Lenda Munson appeals from an order issued by the Labor & Industrial Relations Commission disqualifying her from receiving unemployment benefits for five weeks based upon a finding that she was terminated from her employment with American Airlines, Inc. for misconduct related to work. For the following reasons, the cause is remanded to the Commission for additional findings.

On May 6, 2009, Munson was employed as a flight attendant for American Airlines, a position she had held for approximately ten years. That day, she was scheduled to work a flight set to depart at 10:15 a.m. from St. Louis Lambert Airport, for which she was supposed to “sign-in” by 9:15 a.m. Because she was running late and would otherwise be late signing-in, Munson pulled up to the drop-off area at the departure zone so she could sign-in and then go park in the employee lot. Leaving an automobile unattended in that zone was prohibited by city ordinance. As Munson got out of her car and began to run inside, a police officer about 100 yards away yelled, “Hey,” at her. Munson told the officer she would be right back and was only signing-in. Munson continued inside and managed to sign-in on time. When she got back to her car, the police officer was in the process of writing her tickets for parking in a no-parking zone and for failure to comply with the lawful order of a law enforcement officer.

Munson got into her car and used her cellular phone to call Jerry Roberts, the manager on duty, to inform him she was getting a ticket but would be there in time for departure. The police officer told Munson to get off the phone and get out of the car. According to the officer, Munson put her forearm to his chest and pushed backward. The officer handcuffed Munson, searched her purse, and took her to the airport police detention area. When contacted by Munson’s supervisor, Dorothy Clemons, the airport police informed Clemons that Munson had been detained but refused to provide further detail. At approximately 1 p.m., Munson was transported to the St. Louis County jail where she remained until 10 a.m. the following morning.

After being released, Munson left a voi-cemail message for Peggy Hurlbert, the Base Manager for American Airlines, and informed Hurlbert that she had been released and asked her to return the call. When Hurlbert called Munson back, Mun-son informed her that she had received a ticket for parking in a no parking zone and a ticket for failing to comply with the lawful order of a police officer. Hurlbert told Munson to come in for a “31-R meeting” on May 11. A “31-R meeting” is a corporate investigative proceeding to determining if disciplinary action should be taken against an employee.

Just prior to the 31-R meeting, Mun-son’s union representative informed her that criminal charges might be filed against her. Munson provided a verbal and written recounting of the events at that meeting.

The following day, Munson was charged in St. Louis County Municipal Court with one count of assaulting a person in violation of city ordinance. The airport police called American Airlines to inform them of the charge pending against Munson.

After obtaining a copy of the arrest report, on May 21, American Airlines convened another 31-R meeting to address what Munson’s supervisors viewed to be inconsistencies between her version of the events and the police report. American Airlines believed that Munson had intentionally misrepresented that she had gone directly home after receiving the tickets and hidden the fact that she had been held in police custody for 24 hours. At a further meeting on June 2, American Airlines informed Munson that she was being discharged for dishonesty and misrepresentation of facts.

On June 4, 2009, Munson filed a claim for unemployment benefits. On June 22, 2009, American Airlines filed its letter of protest asserting that Munson had been discharged for misconduct related to work because she had provided American Airlines with false information related to the May 6 incident. On July 9, 2009, a deputy for the Division of Employment Security issued his determination that Munson should be disqualified from unemployment benefits for five weeks because she had been discharged for misconduct connected with work. The deputy determined that Munson had provided her employer with false information related to her absence from work on May 6.

Munson filed an appeal of the deputy’s determination with the Appeals Tribunal. A hearing was conducted on Munson’s claim on August 21, 2009. On August 26, 2009, the Appeals Tribunal issued its decision affirming the disqualification of benefits to Munson. The Appeals Tribunal found that Munson was guilty of misconduct related to work because she had improperly parked in the no-parking zone at the airport. The Tribunal found that this was a willful disregard of the standards of behavior that her employer had a right to expect. The Appeals Tribunal concluded that flight attendants “engaged in an area of employment where military-like discipline is required to preserve human lives,” and therefore, “the claimant must be held to a higher degree of care in the exercise of [her] duties.” The Appeals Tribunal made no findings related to American Airlines’ stated reasons for discharging Mun-son. Munson timely appealed the decision of the Appeals Tribunal to the Commission. Subsequently, on November 9, 2009, the Commission affirmed the decision of the Appeals Tribunal and adopted that decision as its own.

In her sole point on appeal, Mun-son claims that the Commission’s finding that she was discharged for misconduct was not supported by the evidence. As asserted by the Division of Employment Security, however, because the Commission failed to make factual or credibility findings related to the undisputed reason Munson’s employer had for discharging her, the Commission’s decision precludes meaningful review of Munson’s claim.

Our review of the Commission’s decisions is governed by § 288.210 which states:

The findings of the commission as to facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. 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 decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

“We will affirm the Commission’s decision if we find, upon a review of the whole record that ‘there is sufficient competent and substantial evidence to support the [Commission’s decision].’ ” Higgins v. Missouri Div. of Emp’t Sec., 167 S.W.3d 275, 279 (Mo.App. W.D.2005) (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). “[W]e defer to the Commission on issues involving the credibility of witnesses and the weight to be given to their testimony.” Martinez v. Nationwide Paper, 211 S.W.3d 111, 115 (Mo.App. S.D.2006) (internal quotation omitted). “However, we owe no deference to the Commission’s conclusions of law or application of the law to the facts.” Higgins, 167 S.W.3d at 279.

“Pursuant to § 288.050.2, if an individual is fired for misconduct connected with his or her work, that individual maybe denied employment security benefits for four to sixteen weeks.” Peck v. La Macchia Enters., 202 S.W.3d 77, 80 (Mo. App. W.D.2006) (internal quotation omitted). Section 288.030.1(24) defines “misconduct” 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 employees, 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.

“In general, a claimant bears the burden of demonstrating that he or she is entitled to unemployment benefits; however, when 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.” Peck, 202 S.W.3d at 80 (internal quotation omitted).

American Airlines consistently maintained, from its letter of protest through the evidentiary hearing, that Munson was discharged for dishonesty and misrepresentation of facts related to her detention by the police. No evidence was ever introduced indicating that Munson’s firing was due to her leaving her vehicle unattended in the no-parking zone. Indeed, Munson testified that she and other flight attendants had often left their cars in the no-parking area to sign-in, and Munson’s supervisor specifically testified that Munson getting a parking ticket and being detained was not a violation of American Airlines policy. Accordingly, the Commission’s finding that Munson was discharged for misconduct because she parked in the no-parking zone is wholly unsupported by the record.

The issues presented by the parties were whether Munson had, in fact, been dishonest with her employer in violation of company policy and, if so, whether her dishonesty constituted misconduct. The Commission did not make any findings related to these issues. “Because the Commission did not resolve all of the disputed factual issues, it is not possible to conduct a meaningful review of the Commission’s decision in this case.” Dolgencorp, Inc. v. Zatorski, 134 S.W.3d 813, 820 (Mo.App. W.D.2004). “There cannot be intelligent review of the decision when the Commission fails to address essential factual issues, and its decision must be reversed and the cause remanded so that the Commission can resolve the essential issues.” Id. at 819-20; See also Aheam v. Lewis Café, Inc., 308 S.W.3d 294, 297-98 (Mo.App. E.D.2010).

The Commission’s order disqualifying Munson from receiving unemployment benefits for five weeks is reversed, and the cause is remanded to the Commission for further proceedings not inconsistent with this opinion.

All concur.

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


author: LISA WHITE HARDWICK, Chief Judge.

text:
    Tiffany N. BRUCE, Appellant, v. STATE of Missouri, DEPARTMENT OF REVENUE, Respondent.
    No. WD 71649.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2010.

      Jeffrey S. Eastman, Esq., Gladstone, MO, for appellant.
    Jonathan H. Hale, Esq., Jefferson City, MO, for respondent.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, JAMES E. WELSH, Judge, CHARLES E. ATWELL, Special Judge.
   LISA WHITE HARDWICK, Chief Judge.

Tiffany Bruce appeals from a circuit court judgment upholding the administrative revocation of her driving privileges for refusing to submit to a chemical analysis of her breath under Missouri’s Implied Consent Law, Section 577.020. Bruce contends the Director of Revenue failed to prove that: (1) the arresting officer had reasonable grounds to believe she was driving while intoxicated; and (2) Bruce refused to submit to a chemical analysis of her breath. For reasons explained herein, we find no error and affirm the judgment.

Factual and PROCEDURAL History

On March 23, 2009, Officer Gregory, of the Kansas City Police Department, observed Bruce attempting to pull out of a parallel parking spot located in front of a bar in Westport. Her car bumped a taxi cab parked behind her. Bruce pulled forward and proceeded to back up again when the cab moved away. Once on West-port Road, Bruce made a wide right turn heading south on Broadway and then pulled into the right lane without using her turn signal. Officer Gregory activated his lights and siren. Bruce stopped in the middle of the intersection at 43rd and Broadway, so Officer Gregory ordered her to exit the intersection and pull over.

Upon making contact with Bruce, Officer Gregory noticed a strong smell of alcohol and observed her watery, bloodshot, “glossy” eyes. Bruce had slurred speech and swayed when she walked. She admitted to consuming two beers that evening. Officer Gregory suspected Bruce was intoxicated but was unable to complete field sobriety tests due to heavy winds in the area. He transported Bruce to the police station and conducted a second set of sobriety tests. Officer Gregory arrested Bruce for driving while intoxicated (“DWI”) and careless driving.

Officer Gregory read the implied consent form to Bruce, and she agreed to submit to a chemical breath test of her blood alcohol content. Bruce made three attempts to take the test on the Intoxylizer 5000, which registered “AIR BLANK” on the first and third attempts, and “REFUSED” on the second attempt. Officer Gregory noted that Bruce “was not blowing properly” in that she gave only “half blows” and picked up the mouthpiece in her mouth and then let it drop to the ground. He concluded that Bruce “[r]e-fused by not providing a valid sample.”

On March 24, 2009, the Director of Revenue (“Director”) notified Bruce that her driving privileges were revoked for one year for refusal to submit to a chemical breath test. Bruce timely filed an application for a hearing in the circuit court. The Director’s case was submitted through the records of the Department of Revenue, including the Alcohol Influence Report (“AIR”) and narrative prepared by Officer Gregory. Bruce testified at the hearing that she was arrested for DWI at the scene and that she tried to perform the breath test at the police station, but she was crying, upset, and unable to do so.

Following the hearing, the circuit court entered a judgment in favor of the Director and upheld the revocation. The court made findings that Officer Gregory had reasonable grounds to arrest Bruce for DWI, and that Bruce refused to submit to a chemical test of her blood alcohol content. Bruce appeals.

Standard of Review

In this court-tried case, we must affirm the judgment unless there is insufficient evidence to support it, it is against the weight of the evidence, or it declares or applies the law erroneously. White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). We view the evidence in a light most favorable to the judgment, and where, as here, the facts relevant to an issue are contested, we give deference to the circuit court’s assessment of that evidence. Id.

Analysis

At a hearing on the revocation of driving privileges for refusal to submit to a chemical test, the circuit court shall only determine: (1) whether the driver was arrested or stopped; (2) whether the arresting officer had reasonable grounds to believe the driver was driving while intoxicated; and (3) whether the driver refused to submit to the chemical test. § 577.041.4. The Director has the burden of proving all three elements by a preponderance of the evidence. Cain v. Dir. of Revenue, 130 S.W.3d 1, 5-6 (Mo.App.2004). If the Director fails to meet the burden of proof on any of the elements, the court must reinstate the driving privileges. Akers v. Dir. of Revenue, 193 S.W.3d 325, 327-28 (Mo.App.2006).

In this case, there is no dispute that Bruce was arrested. Bruce brings two points on appeal challenging the second and third elements of the circuit court’s determination.

Reasonable Grounds

In Point I, Bruce contends the circuit court erred in determining that Officer Gregory had reasonable grounds to believe she was driving while intoxicated. Bruce argues the court’s finding is unsupported by the evidence and against the weight of the evidence because the Director’s evidence was contradictory and conclusory as to what field testing occurred and when.

Bruce disputes the timing of her arrest for purposes of determining whether Officer Gregory made a reasonable assessment of her condition. She testified that she was arrested for DWI at the scene before field sobriety tests were completed. She argues that probable cause exists only where the arresting officer’s knowledge of the facts and circumstances are sufficient to lead a reasonable person to believe a suspect has committed an offense. State v. Riley, 704 S.W.2d 691, 693 (Mo.App.1986). She further argues “[p]robable cause must exist at the time of the arrest[;]” that “[a]n officer cannot bootstrap and use facts learned after the arrest to show he had probable cause to effect the arrest.” Domsch v. Dir. of Revenue, 767 S.W.2d 121, 123 (Mo.App.1989); Mullen v. Dir. of Mo. Dep’t of Revenue, 288 S.W.3d 319, 322 (Mo.App.2009).

Officer Gregory did not testify at the hearing. The Director’s case was submitted based on the reports and records prepared by the Officer. Bruce argues it was not possible for the court to decipher from the Director’s evidence what testing occurred pre-arrest in the field from what was administered post-arrest at the station and the results of each. She also argues the court could not determine from the report the extent and nature of Gregory’s qualifications to render any opinions regarding her impairment nor any basis upon which he may have formulated those opinions.

We disagree. We review probable cause determinations de novo under an abuse of discretion standard giving deference to the trial court’s inferences drawn from the facts in the record. White, 321 S.W.3d at 310. Probable cause exists when a police officer observes illegal operation of a motor vehicle and indicia of intoxication upon contacting the motorist. Id. at 309. The level of proof necessary to show probable cause is substantially less than that required to establish guilt beyond a reasonable doubt. Id. The court is required to assess the facts by viewing the situation as it would have appeared to a prudent, cautious, and trained police officer. Id.

Field sobriety tests are not required for an officer to develop reasonable grounds for a DWI arrest. Findley v. Dir. of Revenue, 204 S.W.3d 722, 727 (Mo.App.2006). Such tests merely supplement the officer’s other observations in the overall probable cause determination. Id. This is particularly so where an officer reasonably believes an offense has occurred and weather conditions or other safety considerations preclude further investigation at the scene. See Hunt v. Dir. of Revenue, 10 S.W.3d 144, 146, 148 (Mo.App.1999).

The Director’s evidence established that Officer Gregory had observed Bruce’s unusual operation of a motor vehicle with multiple traffic violations. Upon stopping Bruce, he observed classic signs of intoxication: a strong odor of alcohol; watery, bloodshot, and “glossy” eyes; slurred speech; swaying; and an admission of drinking. The Officer’s repoi't indicates that he was unable to complete field sobriety tests at the scene due to the weather. He therefore transported Bruce to the police station and administered a second set of field sobriety tests. Based on the chronology of events reported by Officer Gregory, he arrested Bruce at the police station after she performed poorly on three of the field sobriety tests.

Although Bruce testified that she was arrested at the scene, the circuit court was not required to credit her account of the incident. White, 321 S.W.3d at 312 (“[Th]e trial court is free to believe or disbelieve any or all of the contested evidence at trial”) The Director presented contrary evidence, which the court found credible. The court was free to believe the Director’s evidence, even without live testimony from Officer Gregory or further information about his qualifications.

The Officer’s report cites two arrests: one for DWI and one for careless driving. Even if there had been an arrest at the scene, such initial arrest could have been for careless driving. Since Officer Gregory transported Bruce to the police station for additional field sobriety tests, it does not make logical sense that he would arrest her for DWI before completing his investigation. Officer Gregory was able to rely upon his observations of Bruce’s traffic violations, her physical appearance and conduct when she got out of the car, and her performance on the field sobriety tests in making his assessment. The record supports a finding that the Officer arrested Bruce for DWI only after he had reasonable grounds to believe she drove while intoxicated. Point I is denied.

Refusal to Submit to Chemical Test

In Point II, Bruce argues the evidence did not support the court’s finding that she refused to submit to the chemical breath test. At the hearing, Bruce testified that she agreed to take the test on the Intoxi-lyzer 5000. She “tried several times,” but she was crying and the device “wasn’t reading anything.” She complained when Officer Gregory asked her to sign the refusal form because she was trying to take the test, but she was very upset at the time.

Bruce asserts she was not allowed three minutes to complete the test on the Intoxi-lyzer 5000, and there was no print-out showing an “INSUFFICIENT TEST.” If, she contends, as Officer Gregory’s notes suggest, she was not providing a “valid sample,” the status code “INSUFFICIENT SAMPLE/INVALID TEST/SUBJECT WOULD NOT PROVIDE A VALID SAMPLE” would have appeared on the screen or the breath test ticket after the three minute period. Instead, the status codes “AIR BLANK,” then “SUBJECT TEST REFUSED” and “AIR BLANK” were printed on the breath test tickets for the three attempts she made in less than two minutes. Bruce argues that Officer Gregory improperly aborted the testing process before she had an opportunity to complete it and, therefore, the court erred in concluding that she refused to submit to the test.

A “refusal” occurs when a person fails, of his or her own volition, to do what is necessary in order for the test at issue to be performed. See Bogart v. Dir. of Revenue, 185 S.W.3d 286, 288 (Mo.App.2006). The Director presented evidence of Bruce’s refusal based on Officer Gregory’s written report and narrative. The Officer wrote that Bruce “[rjefused” by not providing a valid breath sample. He described her as “not blowing properly” and “doing half blows.” He also explained that Bruce picked up the device with her mouth and let it drop to the ground.

Officer Gregory’s narrative is further supported by the ticket print-outs from the Intoxylizer 5000, which show that Bruce made three attempts to complete the test. The first and third attempts registered as “AIR BLANK,” which, according to the Breath Alcohol Operator Manual (Petitioner’s Exhibit 4, p. 78), means the machine is establishing a zero reference point with the ambient air to be sure residual substances are cleansed from the internal chambers of the machine and the signal coming from the detector is stable. This step in the machine’s sequence occurs before the arrestee blows into it. The “AIR BLANK” status code indicates that Bruce did not blow into the machine on either the first or third attempt.

The second attempt registered “REFUSED.” This message appears when the subject refuses to make an attempt and the Officer hits the “R” on the keyboard to end the testing sequence. This ticket print-out provides clear evidence that Officer Gregory believed Bruce’s failure to provide an adequate sample was volitional. See Dixon v. Dir. of Revenue, 118 S.W.3d 302, 307 n. 9 (Mo.App.2003).

The operating manual states that the Intoxylizer 5000 “allows a three-minute window” to complete the test. (Petitioner’s Exhibit 4, p. 79). However, there is nothing in the manual that requires the full three minutes be given. Bruce also has not cited any other authority mandating a minimum time frame for the test. Here, there is no dispute that Bruce had three opportunities to take the test, and she failed to provide a valid breath sample on any of them. Under these circumstances, it was not unreasonable for Officer Gregory to cease the testing efforts before the expiration of each three-minute period.

Bruce also complains that the evidence ticket did not indicate an “INSUFFICIENT” or “INVALID” test. According to the manual, those codes do not register until the end of the three minute period (Petitioner’s Exhibit 4, p. 79). Because Bruce refused to blow into the machine properly, her testing did not last three minutes and the machine codes registered what occurred on those attempts: “AIR BLANK” and “REFUSED.”

The Director’s evidence was sufficient to prove that Bruce volitionally refused to submit to the chemical breath test. Although Bruce testified that she was unable to blow properly because she was crying and upset, the court could disbelieve that evidence and find that Officer Gregory’s report and the testing records provided a more credible account. The record supports the court’s decision to uphold the revocation of Bruce’s driving privileges based on her refusal to submit to testing. Point II is denied.

Conclusion

We affirm the circuit court’s judgment.

All Concur.

      . All statutory references are to Revised Statutes of Missouri (2000) as updated by the Cumulative Supplement (2009) unless otherwise noted.


text:
    Alfred Clement DURBIN, Respondent, v. Robert Lee DEITRICK, Jr., Respondent, and American Family Mutual Insurance Co., Appellant.
    No. WD 71263.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2010.

      David R. Frye, Esq., Overland Park, KS, and James C. Spangler, Esq., Sedalia, MO, for appellant.
    James A. Montee, Esq., St. Joseph, MO, for respondent.
    BEFORE DIVISION ONE: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Chief Judge and CYNTHIA MARTIN, Judge.
   LISA WHITE HARDWICK, Chief Judge.

American Family Mutual Insurance Company (“American Family”) appeals the circuit court’s grant of summary judgment in favor of Alfred Durbin. The court determined that four automobile liability policies issued by American Family contained ambiguous anti-stacking language and, therefore, must be construed against American Family to permit stacking. For reasons explained herein, we affirm the circuit court’s judgment.

Factual and Procedural History

On July 27, 2007, Durbin was injured when his vehicle was rear-ended by a truck driven by Robert Deitrick. The truck was owned by Deitrick’s employer, B & L Towing (“B & L”), which had liability insurance with a policy limit of $500,000.

Deitrick was covered by four personal automobile liability policies issued by American Family for a Chevrolet Suburban, a Chevrolet S10, a Chevrolet Trailblazer, and a Chevrolet Cavalier. Each of the policies provided up to $100,000 in coverage.

On August 1, 2008, Durbin filed a First Amended Petition for Damages against Deitrick and American Family. The petition alleged that Durbin was injured as a result of the accident with Deitrick and that Deitrick’s four personal automobile insurance policies provided coverage for the accident.

On September 8, 2008, Durbin accepted Deitrick’s offer of judgment for $900,000. B & L’s liability insurer paid the $500,000 liability policy limit to Durbin. American Family acknowledged the accident was within the scope of Deitrick’s personal liability coverage and paid Durbin the $100,000 liability policy limit issued on Dei-trick’s Chevrolet Suburban but refused to pay Durbin the policy limits of Deitrick’s other three automobile liability policies.

On September 10, 2008, American Family filed an Answer to the First Amended Petition for Damages. American Family also filed a counterclaim against Durbin and a cross-claim against Deitrick, both seeking a declaratory judgment that only one of Deitrick’s personal insurance policies could provide coverage for the accident based on an anti-stacking provision in all four of the policies. The automobile liability policies issued by American Family to Deitrick provided:

PART I — LIABLITY COVERAGE
We will pay compensatory damages an insured person is legally liable for because of bodily injury and property damage due to the use of a car or utility trailer.
LIMITS OF LIABILITY
The limits of liability shown in the declarations apply, subject to the following ... We will pay no more than these máximums no matter how many vehicles are described in the declarations, or insured persons, claims, claimants, policies or vehicles are involved.
OTHER INSURANCE
If there is other auto liability insurance for a loss covered by this Part, we will pay our share according to this policy’s proportion of the total of all liability limits. But, any insurance provided under this Part for a vehicle you do not own is excess over any other collectible auto liability insurance.
GENERAL PROVISIONS
3. Two or More Cars Insured. The total of our liability under all policies issued to you by us shall not exceed the highest limit of liability under any one policy.

American Family moved for summary judgment on its counterclaim and cross-claim. Durbin filed a counter-motion for summary judgment, contending that the anti-stacking language in American Family’s four liability policies is ambiguous and, therefore, must be construed in favor of permitting stacking of the remaining three policies.

After a hearing, the circuit court denied American Family’s summary judgment motion and granted Durbin’s counter-motion for summary judgment. The court found that American Family’s policies were ambiguous because the Limits of Liability provision and Section 3 of the General Provisions appeared to prohibit stacking, but the second sentence of the Other Insurance provision appeared to permit stacking when liability coverage is afforded through use of a vehicle not owned by the covered individual. The circuit court construed this ambiguity against American Family and found that Deitrick’s three remaining personal automobile liability policies could be stacked to provide additional coverage for the accident. American Family appeals the grant of summary judgment in favor of Durbin.

STANDARD OF REVIEW

“Summary judgment allows a trial court to enter judgment for the moving party where the party demonstrates a right to judgment as a matter of law based on facts about which there is no genuine dispute.” Crossman v. Yacubovich, 290 S.W.3d 775, 778 (Mo.App.2009) (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 377 (Mo. banc 1993)). Our review of the trial court’s grant of summary judgment is de novo. Id. The issue of whether an insurance policy is ambiguous is also a question of law which we also review de novo. Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007).

Analysis

In its sole point on appeal, American Family contends the circuit court erred in granting summary judgment in favor of Durbin because the four American Family liability policies issued to Deitrick unambiguously prohibit stacking. American Family argues the policies are not ambiguous because the second sentence of the Other Insurance provision is only implicated “[i]f there is other auto liability insurance for a loss covered.” American Family asserts there is no “other auto liability insurance for a loss covered” because Section 3 of the General Provisions provides that total liability “shall not exceed the highest limit of liability under any one policy” and coverage was exhausted by American Family’s payment of the limit of the policy issued on Deitrick’s Chevrolet Suburban.

If an insurance policy is not ambiguous, we enforce the policy according to its terms; if a policy is ambiguous, we construe the language of the policy against the insurer. Seeck, 212 S.W.3d at 132. In construing the terms of an insurance policy, we apply “ ‘the meaning which would be attached by an ordinary person of average understanding if purchasing insurance.’ ” Ritchie v. Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132, 135 (Mo. banc 2009) (quoting Seeck, 212 S.W.3d at 132). “An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of words used in the contract.” Krombach v. Mayflower Ins. Co., Ltd., 827 S.W.2d 208, 210 (Mo. banc 1992). We do not interpret insurance policy provisions in isolation but rather evaluate the policy in terms of a whole. Ritchie, 307 S.W.3d at 135.

“Where an insurance policy promises the insured something at one point but then takes it away at another, there is an ambiguity.” Chamness v. Am. Family Mut. Ins. Co., 226 S.W.3d 199, 204 (Mo.App.2007). “Specifically, if ‘an other insurance clause appears to provide coverage but other clauses indicate that such coverage is not provided, then the policy is ambiguous, and the ambiguity will be resolved in favor of coverage for the insured.’ ” Id. (quoting Seeck, 212 S.W.3d at 134). Thus, if policy language is ambiguous as to whether stacking is permitted, we construe the language of the policy against the insurer and in favor of stacking. Ritchie, 307 S.W.3d at 135.

The Supreme Court considered analogous anti-stacking language in a similar factual scenario in Ritchie, where the decedent passenger died as a result of an accident while riding in a vehicle not owned by her or her family. Id. at 134, 137. At the time of the accident, the decedent was covered by three separate underinsured motorist policies issued by the insurer. Id. at 137. The decedent’s family sought recovery from the insurer for the policy limit of each of the policies. Id. at 134. The insurer responded that anti-stacking language in the policies permitted recovery from only a single policy. Id. The policies contained a Limit of Liability provision which provided:

A. The limit of liability shown in the Declarations for each person for Underinsured Motorists coverage is our maximum limit of liability for all damages for cause, loss of services, or death arising out of “bodily injury” sustained by any one person in any one accident. Subject to this limit for each person, the limit of liability shown in the Schedule or in the Declarations for each accident for Underinsured Motorists Coverage is our maximum limit of liability for all damages for “bodily injury” resulting from any one accident. This is the most we will pay regardless of the numbers of:
1. “Insureds;”
2. Claims made;
3. Vehicles or premiums shown in the Declarations; or
4. Vehicles involved in the accident

Id. at 136-37. An “Other Insurance” provision in the policies stated:

If there is other applicable underin-sured motorists coverage available under one or more policies or provisions of coverage:
1. Any recovery for damages may equal but not exceed the highest applicable limit for any one vehicle under this insurance or other insurance providing coverage on either a primary or excess basis. In addition, if any such coverage is provided on the same basis, either primary or excess, as the coverage we provided under this endorsement, we will pay only our share. Our share is the proportion that our limit of liability bears to the total of all applicable limits for coverage provided on the same basis.
2. Any coverage we provide with respect to a vehicle you do not own, shall be excess over any other collectible underinsured motorist coverage.

Id. at 137.

Acknowledging the “long line of precedent ‘holding that conflicts between under-insured motorist policy limits ... and the provision of excess coverage in an excess or other insurance clause renders an insurance policy ambiguous,’” the Court held that the “Other Insurance” provision in the underinsured policy created an ambiguity as to whether the policy permitted stacking when the injuries occurred in a vehicle not owned by a covered individual. Id. at 138 (quoting Seeck, 212 S.W.3d at 133). The Court explained that reading Section 2 of the Other Insurance provision together with the Limit of Liability provision suggests “that the policy’s anti-stacking provisions, which might normally and otherwise apply, do not apply in the special situation where the insured is injured while occupying a non-owned vehicle.” Id. at 137-38 (internal quotation marks and citations omitted). The Court concluded that an “ ‘ordinary person of average understanding,’ reasonably could interpret this other insurance provision to mean that when an injured insured is occupying a non-owned vehicle and there are multiple underinsured motorist coverages ... then each of the underinsured motorist coverages are excess to the other, and, therefore, may be stacked.” Id. at 138 (internal citation omitted).

Additionally, in Niswonger we considered the second sentence of an Other Insurance provision of an underinsured motorist policy, using similar language to that used both here and in Ritchie, providing, “However, any insurance provided under this endorsement for a person insured while occupying a non-owned vehicle is excess of any other similar insurance.” Niswonger v. Farm Bureau Town & Country Ins. Co. of Mo., 992 S.W.2d 308, 315 (Mo.App.1999). We recognized “the fact that the sentence begins with the word ‘However’ suggests, and could easily be interpreted by a lay person to mean, that it prevails and takes precedence over the policy’s prior anti-stacking language whenever the accident is one where the insured was occupying a non-owned vehicle” and construed the policy language against the insurer to permit stacking. Id. at 316, 318.

Here, similar to Niswonger, the American Family policies begin the second sentence of the Other Insurance provision with the word “But,” while the second sentence of the Other Insurance provision examined in Ritchie does not contain any such qualifier. Accordingly, the second sentence of the Other Insurance provision contained in the American Family policies makes an even stronger case for ambiguity than the Other Insurance provision examined in Ritchie.

We, therefore, conclude that while the Limits of Liability provision and Section 3 of the General Provisions in the American Family policies appear to generally prohibit the stacking of multiple liability policies, the language of the second sentence of the Other Insurance provision, analogous to that of Ritchie and Niswonger, could reasonably be understood by a lay person to indicate an exception to this general prohibition in the specific case where liability coverage is afforded for injuries incurred through use of a vehicle not owned by a covered individual. Durbin was injured by Deitrick, the covered individual, while Dei-trick was operating a vehicle he did not own. Because Deitrick’s four personal automotive liability policies are ambiguous as to whether they may be stacked in this specific circumstance, we must construe the policy language against American Family and in favor of permitting stacking of Deitrick’s four liability policies.

Durbin was entitled to judgment as a matter of law on his defense of ambiguity to the anti-stacking language in the subject policies. Accordingly, the circuit court did not err in granting his motion for summary judgment.

Conclusion

We affirm the circuit court’s judgment.

All Concur.

      . " 'Stacking' refers to an insured's ability to obtain multiple insurance coverage benefits for an injury either from more than one policy, as where the insured has two or more separate vehicles under separate policies, or from multiple coverages provided for within a single policy, as when an insured has one policy which covers more than one vehicle.” Hiswonger v. Farm Bureau Town & Country Ins. Co. of Mo., 992 S.W.2d 308, 313 (Mo.App.1999).

      . American Family also cites generally to First National Insurance Co. of America v. Clark, 899 S.W.2d 520 (Mo. banc 1995) and suggests the fundamental differences in the purposes of underinsured motorist insurance and automotive liability insurance require that we hold that multiple automotive liability policies covering a single insured cannot be stacked. American Family does not cite any case law nor provide any compelling public policy reasons for such a rule or distinction. Thus, we are not persuaded by its suggestions.


text:
    Harry DARLINGTON, Appellant, v. HARRAH’S NORTH KANSAS CITY, LLC, Respondent.
    No. WD 72092.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2010.
    Mark E. Kelly, Liberty, MO, for Appellant.

      John R. Fox, Kansas City, MO, for Respondent.
    Before LISA WHITE HARDWICK, C.J., JAMES EDWARD WELSH, J., and CHARLES E. ATWELL, Sp. J.
   ORDER

PER CURIAM:

Harry Darlington appeals the Labor and Industrial Relations Commission’s decision denying him workers’ compensation benefits. We affirm. Rule 84.16(b).