author: GEORGE W. DRAPER III, Judge.

text:
    Floyd WITHERS, Appellant, v. CITY OF LAKE SAINT LOUIS, Respondent.
    No. ED 94249.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 29, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 11, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Alan G. Kimbrell, Ballwin, MO, for Appellant.
    Jay A. Summerville, Jeffrey L. Schultz, St. Louis, MO, for Respondent.
   GEORGE W. DRAPER III, Judge.

Floyd Withers (hereinafter, “Withers”) appeals the trial court’s grant of summary judgment in favor of the City of Lake Saint Louis (hereinafter, “the City”). The dispute centers around language contained in a settlement agreement (hereinafter, “the Stipulation”) regarding which municipal ordinances govern property held by Withers’ corporation, Lakeside Plaza, Inc. (hereinafter, “LPI”). Withers raises six points on appeal claiming the trial court erred in entering summary judgment in the City’s favor as a matter of law. We affirm in part, and reverse and remand in part.

All of Withers’ points on appeal challenge the trial court’s grant of summary judgment in the City’s favor. It is well-settled that when considering an appeal from a grant of summary judgment, we review the record in the light most favorable to the nonmovant, assuming all properly pleaded facts and supporting inferences raised by the nonmovant are true. Reed v. Am. Standard Ins. Co. of Wisconsin, 231 S.W.3d 851, 852 (Mo.App. W.D.2007). Our review is essentially de novo. ITT Commercial Fin. v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria on appeal for testing the propriety of summary judgment are no different from those employed by the trial court to determine the propriety of sustaining the motion initially. Id. The burden of proof required of a summary judgment movant is to establish a legal right to judgment flowing from facts about which there is no genuine dispute. Id. at 378.

A “defending” party may establish a right to summary judgment by showing: (1) facts negating any one of the claimant’s elements; (2) the nonmovant has not been able to produce, or will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any of the claimant’s elements; or (3) there is no genuine dispute as to the existence of facts necessary to support the movant’s properly pleaded affirmative defense. Id. at 381. The nonmovant must show by affidavits, depositions, answers to interrogatories, or admissions on file that one or more of the material facts shown by the movant to be without any genuine dispute is, in fact, genuinely disputed. Id. A “genuine issue” exists where the record contains competent materials that establish a plausible, but contradictory, version of the movant’s essential facts. Id. at 382.

The facts in the light most favorable to Withers, the nonmoving party, are as follows: In December 1986, the City filed a petition for declaratory judgment requesting authorization to annex property Withers owned in an unincorporated area of St. Charles County. Withers opposed the annexation, and the parties entered into negotiations to settle the lawsuit. During these negotiations, Withers met with Ron Nelson, the City’s Administrator, Edward Hajek, the City’s Mayor, and Lou Czech, the City’s Attorney (hereinafter and collectively, “the City officials”). Withers told the City officials he would not agree to annexation unless he would be able to develop and operate his property under the same rules and regulations he was operating under in St. Charles County. The City officials assured Withers this would happen if he agreed to annexation.

After nine months of negotiations, the parties entered into the Stipulation on September 8, 1987, consenting to the annexation of the property. Paragraph 2 of the Stipulation states: “After annexation by the City of [Withers’] property, [Withers] is allowed to continue development of his property as approved by St. Charles County as per plans attached hereto and marked Exhibit B.” The Stipulation further states: (1) Withers may use existing off-premise signage without application; (2) the property may have a resident business manager occupy the premises provided there is compliance with the building codes pertaining to occupancy; (3) the property shall be zoned highway commercial; and (4) Withers may erect a building within ten feet of the west property line. The Stipulation is binding upon all heirs, successors, assigns, and runs with the land. On November 3, 1987, the trial court entered its decree of declaratory judgment, recognizing the terms of the Stipulation and authorizing the City to annex Withers’ property.

In 1989, ownership of the property was transferred from Withers to LPI, which is the current owner of the property. After annexation, neither Withers nor his tenants were charged with violating any City ordinance, code, rule, or regulation until 2006; however, the City claims code violations exist as far back as 2003. Withers asserts these violations only occurred because the City officials were no longer in office to uphold the terms of the Stipulation.

After receiving several notices of ordinance violations, Withers filed a three count petition against the City on November 10, 2008. Count I sought to enjoin the City from enforcing its codes and ordinances against Withers’ operation of his business pursuant to the terms of the Stipulation. Count II sought a mandatory injunction ordering the City to de-annex Withers’ property. Count III alleged the City intentionally interfered with Withers’ contractual relations with his tenants causing him damages. The City filed its answer and raised affirmative defenses. At some point thereafter, Withers dismissed Count III of his petition.

The City subsequently moved for summary judgment. In its motion, the City claimed it was entitled to judgment as a matter of law because Withers did not own the property. Even assuming arguendo that Withers had standing to assert the claims on behalf of the property, the City argued the Stipulation permitted it to enforce its codes and ordinances against the property. Finally, the City argued there was no written contract pursuant to Section 432.070 RSMo (2000) entitling Withers to have his property de-annexed.

Withers filed a response, raising several arguments and putting forth a statement of controverted facts that he argued created genuine issues of material fact. Withers also filed a motion to substitute LPI as the party plaintiff in a proposed first amended petition. The amended petition, which was attached to the motion, averred LPI was a corporation that owned the property and Withers was LPI’s owner. The trial court granted Withers’ motion to substitute LPI as the party plaintiff, and LPI adopted as its own the responses and briefs filed by Withers with respect to the motion for summary judgment.

The trial court granted the City’s motion for summary judgment, finding the clear and unambiguous language of the Stipulation permitted the City to enforce its ordinances, codes, rules, and regulations on the property. The trial court rejected LPI’s request for de-annexation, finding the alleged oral promise was void because it was not in writing as required by Section 432.070. LPI filed a motion for reconsideration, and attached partial trial transcripts wherein the City officials testified about the negotiations and the meaning of Paragraph 2 in the Stipulation. On January 7, 2010, the trial court denied LPI’s motion in its final judgment. Withers appeals.

In points one, three, and four, Withers asserts extrinsic evidence creates genuine issues of material fact with respect to Count I of his petition as it relates to the terms of the Stipulation. We will address these points together. At the heart of these points is Withers’ allegation that the City officials made oral representations to him during the settlement negotiations which induced him to agree to annex his property to the City. Specifically, Withers claims the City officials promised him he would be able to develop and operate his property under the same rules and regulations he was operating under in St. Charles County in exchange for annexation. Withers alleges he was told by the City that the language contained in Paragraph 2 of the Stipulation encompassed this representation. However, these representations are not expressly 'written into the Stipulation. Withers argues the Stipulation lacks a fundamental assumption upon which it was written. Alternatively, Withers claims the Stipulation is either patently or latently ambiguous in light of the uncontroverted oral representations made by the City officials regarding the meaning of Paragraph 2.

Settlement agreements are governed by principles of contract law, and therefore, the rules of contract construction apply to their interpretation. TAP Pharmaceutical Prods. Inc. v. State Bd. of Pharmacy, 238 S.W.3d 140, 143 (Mo. banc 2007); In re Marriage of Lueken, 267 S.W.3d 800, 803 (Mo.App. E.D.2008). The law presumes the contract is the final memorial of the parties’ agreement, and it incorporates all prior and contemporaneous agreements. Frisella v. RVB Corp., 979 S.W.2d 474, 477 (Mo.App. E.D.1998). We first examine the plain language of the agreement to determine whether it clearly addresses the issue at hand. TAP Pharmaceutical Products, supra. If the language is clear and unambiguous, the inquiry ends. Id. “However, if the language is not clear, the court turns to other tools of construction in an attempt to determine the intent of the parties.” Id. Whether a contract is ambiguous is a question of law that we determine without deference to the trial court’s ruling. Royalty v. Royalty, 264 S.W.3d 679, 684 (Mo.App. W.D.2008). “Parol evidence may not be used to create ambiguity in an otherwise unambiguous contract or to show that an obligation is other than that expressed in the written agreement.” Kassebaum v. Kassebaum, 42 S.W.3d 685, 693 (Mo.App. E.D.2001).

When determining whether an ambiguity exists, the parol evidence rule does not exclude proof that an alleged contract omits a fundamental assumption upon which the agreement is made. Finova Capital Corp. v. Ream, 230 S.W.3d 35, 49 (Mo.App. S.D.2007). Here, Withers has presented uncontroverted evidence that a fundamental assumption upon which the Stipulation was made has been omitted. Specifically, Withers asserts the City officials promised him he would be able to develop and operate his property under the same rules and regulations he was operating under in St. Charles County in exchange for annexation. While the City does not dispute the City officials made this representation, the City argues the Stipulation is unambiguous on its face and the plain language of the Stipulation dictates the City’s ordinances govern the agreement in contradiction to these representations.

Recognizing there is no express language in the Stipulation dictating the City’s ordinances control, the City claims it is implied because of the Stipulation’s specific provisions permitting Withers to utilize off-premise signage, have a resident business manager, and to erect a building within ten feet of the property line. The City argues these provisions are “exceptions” to the City’s building and zoning codes in that when the property was annexed, off-premise signs were prohibited, facilities for resident managers were not allowed, and the setback from a property line on property zoned highway commercial was nine feet from the property. The City attached these ordinances to its motion for summary judgment and argued these “exceptions” would be rendered superfluous if the intent of the parties was not to have the City’s codes be enforced against the property. We disagree.

“A latent ambiguity will be found to exist when a contract on its face appears unambiguous, but some collateral matter makes the meaning uncertain.” Muilenburg, Inc. v. Cherokee Rose Design and Build, L.L.C., 250 S.W.3d 848, 854 (Mo.App. S.D.2008). Latent ambiguities which are not apparent on the face of the contract must be developed by extrinsic evidence to demonstrate the real intent of the parties. Finova Capital Corp., 230 S.W.3d at 49. In order to determine the intent of the parties where an ambiguity exists, we will consider “the entire contract, subsidiary agreements, the relationship of the parties, the subject matter of the contract, the facts and circumstances surrounding the execution of the contact, the practical construction the parties themselves have placed on the contract by their acts and deeds, and other external circumstances that cast light on the intent of the parties.” Id.

Here, the City’s need to offer its ordinances as enacted at the time of the annexation in order to explain the “exceptions” included in the Stipulation demonstrates the need for extrinsic evidence to construe the Stipulation in the absence of an explicit statement regarding which ordinances are “excepted.” In light of Withers’ uncontroverted assertion that the City officials told him only the ordinances of St. Charles County would apply to his property if he agreed to annexation, we would have to examine both municipalities’ ordinances in order to determine the issue. Such examination would not be necessary if the Stipulation was a complete, integrated agreement on its face.

We also find the Stipulation is ambiguous and incomplete on its face in light of the omission of Exhibit B. When a written contract omits an essential term to the agreement, it is considered incomplete and extrinsic evidence may be admitted to establish the parties’ intent to determine the final and complete agreement between the parties. Bldg. Erection Serv. Co. v. Plastic Sales & Mfg. Co., Inc., 163 S.W.3d 472, 479 (Mo.App. W.D.2005); Barone v. United Indus. Corp., 146 S.W.3d 25, 29 (Mo.App. E.D.2004). Paragraph 2 states: “After annexation by the City of (Withers’] property, [Withers] is allowed to continue development of his property as approved by St. Charles County as per plans attached hereto and marked Exhibit B.” Exhibit B is not attached to the Stipulation provided in the legal file. The parties have, however, provided divergent theories about the existence and meaning of Exhibit B. The City presented the affidavit of Paul Markworth (hereinafter, “Mark-worth”), the current City Administrator, who averred Exhibit B contained a site plan, setting forth proposed improvements to the property that had been approved by St. Charles County prior to the annexation. Markworth stated the City allowed Withers to complete the planned improvements to the property after annexation and the construction was completed in December 1992. Withers vehemently denies Exhibit B was included in the Stipulation, stating in his affidavit, “There is not now, and never was an Exhibit B attached to the [Stipulation, either in the court file, or otherwise.” Further, Withers denies the property was developed in accordance to the site plan furnished to St. Charles County.

While we recognize the City offered a plausible explanation as to what Exhibit B contained and that it theoretically has no bearing on Withers’ claim, in light of the parties’ conflicting testimony and being mindful of our standard of review, we are unable to discern from the record presented whether Exhibit B was attached to the Stipulation at the time it was executed. Moreover, we cannot speculate about whether Exhibit B would modify or explain the language in the Stipulation and what bearing this exhibit would have on the applicability of the City’s ordinances to Withers’ property without relying on parol evidence from either party. Thus, we find the trial court erred in granting summary judgment in favor of the City because the Stipulation omits a fundamental assumption upon which it was made, is ambiguous in that it contains a latent ambiguity with respect to which ordinances apply to the property, and the omission of Exhibit B renders it incomplete. Points one, three, and four are granted.

In his second point, Withers argues the City was not entitled to judgment as a matter of law on Count I because he presented evidence that in consideration of his agreement to have his property annexed by the City, the City agreed to refrain from enforcing its zoning and building ordinances to the extent they differed from the St. Charles County ordinances. Withers claims Section 482.070 did not bar this oral agreement because the statute is inapplicable to this type of contract. The City disagrees, arguing this oral agreement had to be in writing or it was void pursuant to Section 432.070.

Section 432.070 provides in pertinent part:

No county, city, town ... or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto....

All contracts with a municipal corporation must be in writing. Duckett Creek Sewer Disk of St. Charles County v. Golden Triangle Dev. Corp., 32 S.W.3d 178, 182 (Mo.App. E.D.2000). These statutory provisions “are mandatory, not directory.” Gill Const., Inc. v. 18th & Vine Auth., 157 S.W.3d 699, 708 (Mo.App. W.D.2004) (quoting Pub. Water Supply Dist. No. 16 v. City of Buckner, 44 S.W.3d 860, 864 (Mo.App. W.D.2001)). Any contract made in violation of Section 432.070 is void. Duckett Creek Sewer Dist., 32 S.W.3d at 182 (citing Vochatzer v. Pub. Water Supply Dist. No. 1 of Lafayette County, 637 S.W.2d 418, 420 (Mo.App. W.D.1982)). Section 432.070 seeks to protect municipalities, not “parties who seek to impose obligations upon government entities.” Gill Const, Inc., 157 S.W.3d at 708 (quoting City of Kansas City v. Sw. Tracor, Inc., 71 S.W.3d 211, 215 (Mo.App. W.D.2002)). “The fact that a municipality has received the benefit of a performance by the other party does not make the municipality liable either on the theory of ratification, estoppel or implied contract.” Gill Const, Inc., 157 S.W.3d at 708 (quoting Mo. Int’l Investigators, Inc. v. City of Pacific, 545 S.W.2d 684, 685 (Mo.App.St.L.Dist.1976)).

Withers asserts Section 432.070 only applies to service contracts, relying on Investors Title Co., Inc. v. Hammonds, 217 S.W.3d 288 (Mo. banc 2007). The Missouri Supreme Court explained, “Section 432.070 was enacted to preclude parties who have performed services for a municipality or county or other governmental entity without entering into a contract from subsequently recovering the value of those services based on an implied contract.” Investors Title Co., Inc., 217 S.W.3d at 294. Cognizant of this holding, we do not believe this Section’s application is restricted to only service contracts when we give effect to the plain and ordinary meaning of the statute’s language. See Fast v. Marston, 282 S.W.3d 346, 349 (Mo. banc 2009)(“The primary rule of statutory construction is to ascertain the intent of the legislature by giving the language used its plain and ordinary meaning.”). The plain and ordinary language of Section 432.070 applies to “any contract” made by a “county, city, town ... or other municipal corporation.” Section 432.070 (emphasis added). As such, Withers’ reliance on Investors Title Co., Inc. as a means to preclude application of Section 432.070 and to uphold the oral agreement is misplaced because the statute is not confined to merely service contracts.

We also reject the City’s argument that Section 432.070 bars the oral agreement between the parties. The writing at issue in Count I of the petition is the Stipulation, which complies with the mandates of Section 432.070. The Stipulation, however, is latently ambiguous, omits the fundamental assumption upon which the agreement was reached, and omits essential terms. The oral representations of the City officials are only relevant to address these ambiguities and to provide evidence of the parties’ intent at the time the Stipulation was negotiated. The oral representations do not constitute a separate and distinct agreement apart from the Stipulation. Point two is denied.

Similarly, Withers’ fifth and sixth points on appeal address the allegations raised in Count II of his petition and regarding the application of Section 432.070 to this claim for relief. In Count II, Withers sought a mandatory injunction ordering the City to de-annex his property. Withers averred the City officials orally promised him he could continue to operate his business under the rules and regulations of St. Charles County after annexation. However, if at any time this was not possible or agreeable to the City, Withers would be entitled to have his property de-annexed from the City. Withers acknowledges this promise is not contained within the Stipulation. We will address these points out of order for the sake of clarity.

In his sixth point, Withers alleges the trial court erred in granting summary judgment on Count II because the City is not entitled to judgment as a matter of law in that if the City officials’ oral representations were not honored, then the City officials promised Withers he could de-annex the property. Making the same argument he raised in his second point, Withers claims Section 432.070 does not apply to the promise of de-annexation because it was not a services contract. In contrast, the City asserts any purported oral agreement by the City providing for de-annex-ation is void in violation of Section 432.070. In granting Count II of the City’s summary judgment motion, the trial court found Withers failed to identify any -writing promising de-annexation, and therefore, any oral contract to that effect is void in violation of Section 432.070.

Here, Withers claims the City orally promised the property could be de-an-nexed if the fundamental assumption of the Stipulation was not honored, specifically, that Withers would be able to develop and operate his property under the ordinances of St. Charles County. Yet, Withers has not produced a writing to this effect, and it is not explicitly contained within the Stipulation. In contrast to the undisputed factual support Withers provided about the City officials’ oral representations with respect to which ordinances would apply to the property after annexation, Withers has wholly failed to produce any evidence to support the allegation the City officials made him a similar oral promise regarding the de-annexation of his property. Further, Withers has not alleged the oral representations with respect to de-annexation were part of the fundamental assumption of the Stipulation, nor has he directed us to any provision within the Stipulation that could be read to include this promise. Therefore, we view this alleged promise as separate and distinct from the Stipulation and is void under Section 432.070 because it does not comply with the mandatory requirement that a contract with a municipal corporation be in writing. Duckett Creek Sewer Dist., 32 S.W.3d at 178. Accordingly, the trial court did not err in granting the City’s summary judgment motion on Count II because any purported oral promise or agreement made by the City providing for de-annex-ation is unenforceable and void under Section 432.070. Point six is denied.

Alternatively, in his fifth point, Withers argues the City was not entitled to judgment as a matter of law because if Section 432.070 bars the oral representations made by the City’s officials about which ordinances would apply to the property after annexation because they were not in writing, then thé Stipulation based upon those oral representations is likewise void. As such, Withers believes the parties should be restored to the status quo and the Stipulation should be nullified. We need not address this point in light of our holding Section 432.070 does not bar the oral representations of the City official about which ordinances would apply. The City officials’ oral representations about which ordinances would apply after annexation were not a separate and distinct agreement outside the terms of the Stipulation, but rather, constituted extrinsic evidence regarding the parties’ intent. Point five is rendered moot.

In light of our finding that the language of the Stipulation is ambiguous and because parol evidence is required to determine the parties’ intent, a genuine issue of material fact exists and, therefore, summary judgment is not proper with respect to Count I. We reverse the trial court’s judgment granting summary judgment in the City’s favor on Count I of Withers’ petition and remand for further proceedings. The trial court’s judgment granting summary judgment with respect to Count II is affirmed.

KURT S. ODENWALD, P.J., and GARY M. GAERTNER, JR, J„ concur.

      . All statutory references are to RSMo (2000) unless otherwise indicated.

      . The City officials testified under oath in a different proceeding regarding the parties’ negotiations concerning the annexation at issue here. Ron Nelson testified Withers was opposed to the annexation and indicated he wished to operate under the zoning ordinances of St. Charles County. Nelson testified the parties agreed "whatever rules [Withers] was operating under in terms of zoning in St. Charles County that we put in the annexation agreement, that he could continue under those rules.” Ed Hajek, the City's mayor at the time of the negotiations, testified it was his understanding Withers wished to operate and develop his property under the St. Charles County ordinances and he was permitted to do so after his property was annexed. Lou Czech, the City's attorney, was deceased at the time of these proceedings.

      .The City filed a motion to dismiss the appeal prior to the case being submitted to this panel. The notice of appeal filed with this Court named Withers as the appellant, not LPI. Thus, the City argued Withers lacked standing and was not the aggrieved party on appeal since he is not the owner of the property in dispute. After reviewing the City’s motion, this Court's chief judge denied the motion on February 24, 2010. The City raises the identical argument again before this panel in its brief, yet failed to ask for reconsideration of the chief judge's ruling, which we are bound by. As such, we will consider Withers and LPI one and the same for purposes of appeal in that the City has not been harmed or misled and had actual notice about the issues being raised on appeal. See Morrow v. Fisher, 51 S.W.3d 468, 473 n. 1 (Mo.App. S.D.2001)(finding "technical adherence to formal averments of notice of appeal is not jurisdictional and are to be liberally construed to permit appellate review if the opposing party is not misled or harmed”).


source: Caselaw Access Project

author: CLIFFORD H. AHRENS, Judge.

license: Public Domain

text:
    Sherman GEORGE, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF ST. LOUIS and the City of St. Louis, Respondents.
    No. ED 93873.
    Missouri Court of Appeals, Eastern District, Division One.
    June 29, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 3, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Thomas M. Blumenthal, St. Louis, MO, for appellant.

      Patricia A. Hageman, St. Louis, MO, for respondent.
   OPINION

CLIFFORD H. AHRENS, Judge.

Sherman George appeals the decision of the Civil Service Commission of the City of St. Louis confirming his demotion from the position of fire chief. We affirm.

Background

Appellant had a long and distinguished career with the St. Louis Fire Department. He began his employment in 1967 and in 1999 became the first African-American to serve as fire chief. Appellant was demoted in 2007 for refusing a direct order from his immediate superior demanding that Appellant fill twenty-eight long-standing vacancies in the fire department.

The City’s charter governs the organization of its departments and services. The fire chief oversees more than 700 firefighters and over 200 other employees, primarily emergency medical technicians and approximately twenty civilian employees. The organizational structure of the fire department is a chain of command similar to the police department or, more generally, the military. The fire department is under the department of public safety. The fire chief is appointed by and reports directly to the director of public safety, who is appointed by and reports directly to the mayor.

Promotions within the City’s civil service regime, including the fire department, are based on merit and fitness and originate from the department of personnel. Candidates for promotion must successfully complete a competitive examination containing multiple components. The director of personnel is charged with administering the exam. In practice, the exam is often created, administered, and analyzed on the City’s behalf by testing consultants with expertise in a given field of service. From the results of the test, the director of personnel generates a list of candidates eligible for promotion and submits that list to the “appointing authority” of a particular department — in this case, the fire chief. The appointing authority draws from the list to select particular individuals for promotion.

As is relevant to the present litigation, the City received ten testing proposals in 2003. The director of personnel chose to implement one that Appellant disfavored. Specifically, Appellant felt that this particular test lacked a sufficient “assessment center” quality characterized by leadership, management, and fire simulation exercises. The City considered the test to contain an adequate assessment center process, and in any event the decision rests with the director of personnel pursuant to the City’s charter. Thus despite Appellant’s dissent, the personnel director administered the exam and sent Appellant a list of successful candidates in April 2004. In June, Appellant’s immediate superior, the director of public safety, instructed him to move forward with promotions. Appellant initially agreed but then expressed concern about racial discrimination in the test. Days later, Firefighters for Racial Equality (FIRE) filed a lawsuit in the U.S. District Court challenging the validity of the test and seeking a preliminary injunction to prevent promotions from the list of successful candidates. In May 2007, the District Court issued its decision finding the test valid. Stewart v. City of St. Louis, 2007 WL 6211633 (E.D.Mo.2007), aff'd, 532 F.3d 939 (8th Cir.2008).

Despite the outcome of the FIRE lawsuit, Appellant continued to refuse to fill existing vacancies. No one had been promoted in the fire department in five years. Instead, as was common practice, City firefighters would frequently “ride out of title,” meaning they served informally in a rank higher than their appointed rank in order to fill temporary needs. Thus, a private served as captain and a captain as battalion chief on an acting basis, with all the added responsibility but none of the vetting or additional compensation. These circumstances caused Appellant’s superiors to express concern about low morale in the department, waning public confidence, and potential liability.

In July 2007, Mayor Francis Slay delivered a letter urging Appellant to proceed with promotions. On September 5, the director of public safety formally ordered Appellant to fill all vacancies by September 14 or be subject to disciplinary action. Appellant interviewed eligible candidates but refused to make any promotions, claiming that he was unable to determine from the test results whether the candidates were qualified. The director then demoted Appellant to the position of deputy fire chief, and Appellant retired shortly thereafter. Concurrently, Appellant filed an appeal with the Commission challenging the validity of the director’s order and alleging racial discrimination and constructive discharge.

Following a hearing, the Commission upheld the director’s order and found that Appellant’s demotion was for good cause, not based on race, and not intended to compel his resignation. Appellant sought judicial review, the circuit court affirmed the Commission’s decision, and this appeal followed.

Appellant asserts three points of error: (1) that the order of the director of public safety demanding that Appellant fill vacant positions or be disciplined was unenforceable; (2) that substantial competent evidence demonstrated that Appellant’s demotion was racially motivated; and (3) that substantial competent evidence demonstrated that Appellant was constructively discharged.

Standard of Review

On appeal of a circuit court’s judgment on a petition for judicial review of contested administrative actions, we review the decision of the administrative agency, not the judgment of the circuit court. Section 536.140.2 RSMo 2000. The appropriate standard of review is whether, considering the whole record, there is sufficient competent and substantial evidence to support the agency’s decision. Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo.2009). To overcome this standard, an appellant must demonstrate that the agency’s decision is contrary to the overwhelming weight of the evidence. Id. We defer to the Commission’s findings of fact and determinations of credibility. Perry v. City of St. Louis Civil Service Comm’n, 924 S.W.2d 861, 864 (Mo.App.1996). Questions of law are reviewed de novo. Section 536.140.3; Albanna, 293 S.W.3d at 428.

Discussion

Enforceability of the Director’s Order

Appellant first contends that the Commission erred in confirming his demotion because the director’s order was unenforceable as a matter of law. In support of his position, Appellant cites State ex rel. Killingsworth v. George, 168 S.W.3d 621 (Mo.App.2005), and civil service rule VII § 4. In Killingsworth, City firefighters sought a writ of mandamus compelling Appellant to fill ten vacancies in the fire department. This court quashed the writ because rule VII § 4 gives an appointing authority the discretion whether (or not) to promote eligible candidates. We explained that, where the act of a public official is discretionary rather than ministerial, such discretion cannot be coerced by the courts, so mandamus will not lie. Id. at 625.

But the issue here is not whether a court may coerce Appellant’s discretionary act upon writ petition by his subordinates, but whether Appellant may defy with impunity his superior’s order to adequately staff his department. As the Commission correctly noted, Killingsworth does not trump the basic organizational hierarchy of City government as contemplated in its charter. The fire department is not a chiefdom but rather one division within one department under the ultimate executive authority of the mayor. Article VII § 1 of the charter provides that the mayor is the chief executive officer of the City, exercises all executive power of the City, supervises all executive affairs of the City, sees that each officer and employee performs his duty, and examines the conduct of any department or office. Under the mayor, Article XIII names the director of public safety as head of the department of public safety, with supervisory authority over the various divisions within it, including the fire department.

Appellant is partially correct that the mayor’s influence over hiring and promotions is limited by a distribution of powers: article XVIII charges the department of personnel to identify candidates based on merit, and rule VII § 4 gives discretion to the appointing authority — here, the fire chief — to promote from that pool. This framework ensures objectivity in vetting and leaves individual selections to field-level managers. The appointive discretion conferred by rule VII § 4 is what one would expect of any department head. In the public realm, as Killingsworth explains, that discretion in the hands of a public official cannot be coerced by the judicial branch. It does not follow, however, that such discretion is free from oversight by a superior in the executive branch. Indeed, rule VII § 1 contemplates such oversight. It provides that, though an appointing authority may indicate a preference for a type of appointment (e.g., temporary, term-limited, reassignment, transfer), the final decision rests with the director.

Moreover, rule VII § 4 cannot be construed to override the mayor’s chief executive authority under article VII § 1 to “see that each officer and employee performs his duty” — in this case Appellant’s duty to adequately staff the fire department. Taken to its logical extreme, such an interpretation would allow appointing authorities to bring City government to a halt. Killingsworth should not be understood to prescribe such a result. Though Appellant relies heavily on Killingsworth’s observation that, under rule VII § 4, the “discretion to fill or not to fill any particular position remains vested in the appointing authority,” that observation must be read in context. As we elaborated then, the rule “contemplates that there will be situations in which the appointing authority will choose, for budgetary, management or other reasons, not to fill a given position.” Id. at 625. Here, any such division-level managerial concerns were superseded by the express directive of an executive with superior management authority. The may- or included the promotions in the budget and directed that they occur, as was well within his authority under article VII § 1.

Additionally, Appellant’s specific justification for defying orders was clearly outside his managerial discretion under the express provisions of the charter. In particular, Appellant refused to promote based on his own belief that the test was flawed. But the charter’s framework for hiring and promotions gives no weight to an appointing authority’s personal opinion of the eligibility test. Under article XVIII, the department of personnel has exclusive authority to determine the method of testing. Moreover, the very test that Appellant criticized here was validated by the U.S. District Court. Appellant thus had no legitimate legal or managerial reason to refuse to carry out the director’s order to promote from the list of candidates who passed that test.

We hold that the discretion conferred upon division-level appointing authorities under civil service rule VII § 4 does not supersede the mayor’s chief executive authority under article VII § 1 of the City charter, and the authority of the director of public safety as Appellant’s immediate supervisor under article XIII of the charter, to direct Appellant to perform his duty to fill vacancies in the fire department. The director’s order was enforceable and thus Appellant’s demotion for cause was lawful. Point denied.

Racial Discrimination

Appellant also contends that the Commission’s finding that race was not a factor in his demotion was against the substantial competent evidence. The City’s charter and civil service rules prohibit the City from discriminating against any employee on the basis of race. Article XVIII § 16, Rule XIII § 2; Rule XVI § 1. Likewise, the Missouri Human Rights Act forbids an employer to discriminate against an employee because of his race. Section 213.055 RSMo. Under the Act, an employee alleging racial discrimination must prove that his race was a contributing factor in the employer’s decision. Daugherty v. City of Maryland Heights, 231 S.W.3d 814 (Mo. banc 2007). The pivotal issue is whether the employer’s conduct was motivated by an invidious purpose or whether it was based on a legitimate and rational consideration. Stanley v. JerDen Foods, Inc., 263 S.W.3d 800, 803 (Mo.App.2008).

In its decision, the Commission relied on the testimony of Mayor Slay and the two directors of public safety under the may- or’s authority during the relevant period. Samuel Simon issued the initial order for Appellant to promote or be demoted. Charles Bryson succeeded Mr. Simon, reiterated the order, and ultimately demoted Appellant. Their testimony can be summarized as follows.

Mr. Simon chronicled the City’s correspondence with Appellant requesting and eventually urging him to carry out promotions. After the District Court’s decision in Stewart, the city counselor advised Appellant that no legal reason existed for delay. Other correspondence confirmed both the validity of the list of eligible candidates and budget approval for the promotions. Mr. Simon expressed multiple concerns: low morale within the department, waning public confidence, and potential liability for failure to promote, unfair pay practices, and unqualified employees riding out of title. He testified, “I wanted to continue to work with the Chief, address his concerns, and hopefully get him to a point where he would feel comfortable making the promotions himself. I didn’t want it to be confrontational or have to give him an order or directive.” Mr. Simon further stated that Appellant’s race had nothing to do with the order.

Mr. Bryson succeeded Mr. Simon as director of public safety and reiterated his order while also attempting to persuade Appellant to proceed with promotions voluntarily. Mr. Bryson expressed the same concerns articulated by his predecessor: long-standing vacancies “stacking up” within the department, complaints and low morale both within the department and among the public, and untested employees riding out of title. On the afternoon of September 14, 2007, the deadline for Appellant to carry out the order, Appellant met with Mr. Bryson and indicated that he would not make the promotions. One week later, Appellant received a pre-termi-nation hearing on the charge of disobeying a direct order, to which Appellant responded that the order was unenforceable. Mr. Bryson demoted Appellant and hired an interim chief, who proceeded to fill vacancies in the department.

Mayor Slay testified that “[w]e were doing everything we could to try to avoid that situation,” referring to Appellant’s demotion. Excerpts from a letter to Appellant dated July 2007 illustrate the mayor’s plea.

I support you as chief of the Fire Department and want you to continue to succeed. However, I also believe the department must promote and fear the issue of promotions, if not addressed fairly and immediately, will severely damage your ability to lead the Department. ... [A] federal judge has ruled that the current promotional test is valid, does not discriminate, and legitimately tests the skills and knowledge needed to be a captain or battalion chief.... Ignoring the court’s clear, unequivocal ruling is creating hard feelings among many of the men and women in the department who have waited patiently for promotions....

The voluminous record — over 1300 pages — paints a fuller picture of the foregoing sketch.

In support of his claim of racial discrimination, Appellant extracts portions of the record in which his superiors acknowledge and attempt to address a long history of racial tensions in the fire department. But to label as racial discrimination their awareness of and response to the problem is to mischaracterize the evidence. Again, Mayor Slay’s letter illuminates the dilemma. In it he sympathizes with Appellant being torn between opposing groups, namely FIRE on one hand, continuing to dispute the validity of the promotions exam, and members of Local 73, a union of primarily white firefighters, on the other hand, calling for long-overdue promotions. The mayor’s letter expresses a desire to work together “to address the rifts in race relations that have developed within the Fire Department, whether based on ill feelings about these promotions or from historic grievances.” Appellant similarly distorts his superiors’ statements that they would take race into account when considering his replacement. Viewed in context, the record reflects simply that Mayor Slay and his directors remained sensitive to race relations in the department and hoped to identify a new fire chief capable of building cohesion. Appellant was not demoted because of his race. He was demoted for insubordination.

Viewed in its entirety, the record contains sufficient competent evidence from which the Commission could have found that Appellant’s demotion was for good cause and not a product of racial discrimination. Point denied.

Constructive Discharge

Finally, Appellant contends that the Commission’s finding that he was not constructively discharged was against the substantial competent evidence. Constructive discharge occurs when an employer deliberately renders an employee’s working conditions so intolerable to a reasonable person that the employee is forced to quit. Wallingsford v. City of Maplewood, 287 S.W.3d 682, 686 (Mo. banc 2009). A plaintiff must establish a discriminatory motive. Gilliland v. Missouri Athletic Club, 273 S.W.3d 516, 521 (Mo. banc 2009). A claim of constructive discharge requires more than a single incident but rather a continuous pattern of discriminatory treatment. Wallingsford, 287 S.W.3d at 686.

Appellant cites two intolerable conditions. First, Appellant complains that he was placed under the new interim fire chief, a Caucasian former subordinate who swiftly proceeded to carry out the promotions over Appellant’s objections. Second, Appellant laments the decrease in his salary and thus his pension benefits. Demotions and pay cuts are among the factors that federal courts consider in determining intolerability, and Missouri courts take guidance from applicable federal decisions. Gamber v. Missouri Dept. of Health and Senior Services, 225 S.W.3d 470, 475 (Mo.App.2007). Indeed, the Wall-ingsford court cited federal precedent in recognizing that claims of constructive discharge often involve demotions and changes in job responsibilities. Wallingsford, 287 S.W.3d at 686, citing Lerendos v. Stern Entm’t, Inc., 860 F.2d 1227, 1230 (3d Cir.1988).

But when an employer has a legitimate, non-discriminatory reason for its actions, a claim of discrimination will fail unless the employee can establish that the reason is a pretext. Missouri Com’n on Human Rights v. City of Sikeston/Siheston Power Plant/Bd. of Mun. Utilities 769 S.W.2d 798 (Mo.App.1989); Auguster v. Vermilion Parish School Board, 249 F.3d 400, 402-403 (5 Cir.2001). The ultimate burden of proving that the employer intentionally discriminated against the employee remains at all times with the employee. Auguster, 249 F.3d at 402.

Here, Appellant’s loss of authority and compensation are natural consequences of a lawful demotion resulting from Appellant’s insubordination. The City had a legitimate, nondiscriminatory reason to take disciplinary action. Appellant does not attempt to argue that the City’s reason for demoting him was pre-textual, and the record contains no evidence to support such an inference. Similarly, the record lacks any evidence that Appellant’s superiors said or did anything to harass, intimidate, embarrass, provoke, or otherwise deliberately torment Appellant in a manner characteristic of an intolerable work environment.

The record contains sufficient competent evidence from which the Commission could have found that Appellant was demoted for defying orders and was not constructively discharged. Point denied.

Conclusion

The City’s actions were lawful. The Commission’s decision is affirmed.

KATHIANNE KNAUP CRANE, P.J, and ROY L. RICHTER, J., concur.

      . Appellant would later testify that he never actually reviewed the test or results.

      . Specifically, rule VII § 4 provides the option not to promote by allowing a list of eligible candidates to expire: "The appointing authority or his designee shall interview each available eligible who is certified. Within twenty-one (21) days after such names are certified, the appointing authority shall appoint one of those whose names are certified to each vacancy he or she is to fill.... If no selection is made within the prescribed or authorized period, the certification shall be null and void_” Civil Service Rule VII § 4.

      . "Article VII: Mayor. Section 1: Powers and duties; compensation. The mayor shall be the chief executive officer of the city and, except as by law or in this charter otherwise provided, have and exercise all the executive power of the city. He shall exercise a general supervision over all the executive affairs of the city and see that each officer and employee performs his duty and that all laws, ordinances, and charter provisions are enforced within the city.... He may examine the affairs and conduct of any department, board, or office....” City Charter, Article VII § 1.

      . In particular, section 1 names the director of public safety as head of, and exercising supervisory authority over, the department of public safety, and section 15 places the fire department (formally the “Division of fire and fire prevention”) under the department of public safety.

      . Specifically, section 3(c) provides for competitive examinations "for determining merit and fitness for appointment and promotion to competitive positions.... ” Section 9(g) charges the director of personnel "to hold examinations, pass upon the qualifications of applicants, and establish eligible lists, as needed, and to certify names of eligibles to appointing authorities for filling vacancies in competitive positions.” City Charter, Article XVIII § 3(c) and § 9(g).

      . "Section 1. Types of Appointments: Vacancies in the classified service shall be filled either by original appointment, temporary appointment, limited term appointment, term appointment, reemployment, promotion, reassignment, detail, reemployment from layoff, transfer, or demotion. Appointing authorities may indicate which of these methods they would prefer to have employed in each instance, but final decision shall rest with the Director.” Civil Service Rule VII § 1.

      . During the relevant period, the City was following litigation in New Haven, Connecticut, where white and Hispanic firefighters sued the city for refusing to certify test results for fear of disparate impact claims by African-American firefighters. See Ricci v. DeStefano, - U.S. -, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009).

      . In determining whether working conditions are intolerable for purposes of employment discrimination claims based on constructive discharge, courts consider a variety of factors, including: (1) demotion, (2) reduction in salary, (3) reduction in job responsibilities, (4) reassignment to menial or degrading work, (5) reassignment to work under a younger supervisor, (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation, and (7) offers of early retirement or continued employment on terms less favorable than the employee’s former status. Bell v. South Delta School Dist., 325 F.Supp.2d 728 (S.D.Miss.2004) (quoting Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir.2000)).


author: ALOK AHUJA, Judge.

text:
    In re: George Leonard KRAUS, Deceased, Patty Ann Denton, Respondent, v. Missouri Department of Mental Health, Appellant.
    No. WD 71327.
    Missouri Court of Appeals, Western District.
    July 6, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 31, 2010.

      Jeff Klusmeier, Esq., Jefferson City, MO, for appellant.
    David A. Yarger, Esq., Versailles, MO, for respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOK AHUJA, JJ.
   ALOK AHUJA, Judge.

The Missouri Department of Mental Health appeals an order entered in probate proceedings involving the Estate of George Leonard Kraus. Because the Department’s notice of appeal was untimely, we dismiss the appeal.

Factual Background

Mr. Kraus passed away on August 26, 2008. Respondent Patty A. Denton was appointed as personal representative of his estate. On May 29, 2009, the Department filed its Claim Against Estate, alleging that the estate was liable to the Department for $2,313.48, which the Department contends represents the unpaid cost of (unspecified) services provided to Mr. Kraus between August 27, 1985, and May 31, 1995. Ms. Denton filed an objection to the Department’s claim on June 23, 2009; the Department filed Suggestions in Opposition to Ms. Denton’s objection on July 1.

On July 7, 2009, the Circuit Court of Cole County held a hearing on the Department’s claim. The claim was denied on the same day, on the basis that it was time-barred under the applicable statute of limitations. On July 14, the Department filed a Motion to Set Aside Denial, which reasserted its contention that, under § 473.398, its claim did not accrue until Mr. Kraus’ death, and that it was not subject to the claim filing deadlines contained in the probate code by virtue of §§ 473.360 and 473.444. Ms. Denton opposed the Motion to Set Aside, and the circuit court denied it on July 21. The Department filed its Notice of Appeal on July 31, 2009.

Analysis

Before addressing the merits, this Court must satisfy itself that it has jurisdiction of the Department’s appeal. Estate of Burg, 68 S.W.3d 543, 544 (Mo.App. E.D.2001). The right to appeal from a judgment of the probate division is purely statutory. Id. (citing Griffin v. Griffin, 982 S.W.2d 788, 788 (Mo.App. E.D.1998)). While probate orders are generally interlocutory and not subject to appeal until final disposition, the orders enumerated in § 472.160.1 are subject to immediate appeal. Id. at 544-45 (citing Couch v. W. Sur. Co. (Estate of Couch), 920 S.W.2d 165, 168 (Mo.App. W.D.1996)).

The circuit courts July 7, 2009 order was immediately appealable under § 472.160.1. That statute provides in relevant part:

Any interested person aggrieved thereby may appeal to the appropriate appellate court from the order, judgment or decree of the probate division of the circuit court in any of the following cases:
(l)On the allowance of any claim against an estate exceeding one hundred dollars;
(13)On all orders denying any of the foregoing requested actions....

The denial of the Departments claim fits squarely within § 472.160.1(13), because the allowance of that claim would have been appealable under § 472.160.1(1).

Section 472.180 provides that “[a]ll appeals shall be taken within the time prescribed by the rules of civil procedure relating to appeals.” Rule 81.04(a) provides that a notice of appeal must be filed no later than ten days after the judgment or order becomes final.

The interlocutory probate orders listed in § 472.160.1(1) — (13) are final for purposes of appeal when they are entered.

Section 472.160 creates an expedited right to appeal certain probate orders which otherwise would be interlocutory and unappealable. Such expedited appeals serve the salutary purpose of allowing many matters of importance to be resolved while the estate is open, and prevents one complex appeal from all matters that occurred during the administration of the estate. It follows that because an appeal from one of the orders listed in section 472.160 is permitted while the estate is still open, such orders are immediately appealable upon entry. The orders listed in section 472.160 are ready for appeal when made.

Standley v. Standley (Estate of Standley), 204 S.W.3d 745, 748-49 (Mo.App. S.D.2006) (en banc) (citations and internal quotation marks omitted).

Here, the Departments claim was denied on July 7, 2009, but its Notice of Appeal was not filed until July 31, more than ten days later. Therefore, unless the time within which the Department could take its appeal was tolled or extended, its Notice of Appeal was untimely, and we would be required to dismiss the appeal.

Rule 81.05(a)(1) declares that judgments do not become final until thirty days after their entry; Rule 81.05(a)(2) further provides that, if timely post-judgment motions are filed, the finality of the judgment is further delayed until the earlier of the disposition of the last such motion, or ninety days after the last motions filing (when the motion is deemed denied). In Stand-ley, however, the Southern District, sitting en banc, overruled its prior decision in In re Estate of Desterbecque, 800 S.W.2d 142 (Mo.App. S.D.1990), and held that Rule 81.05 does not apply to interlocutory probate orders appealable under § 472.160.1(1) — (13). Standley, 204 S.W.3d at 749 n. 9; see also Estate of Straszynski, 265 S.W.3d 394, 396 (Mo.App. S.D.2008).

Standley emphasized that “section 472.160 creates an expedited right to appeal certain probate orders which otherwise would be interlocutory and unappealable.” 204 S.W.3d at 749 n. 9 (citation and internal quotation marks omitted). The Court also noted that earlier decisions had held, albeit sub silentio, that Rule 81.05 was inapplicable in determining the timeliness of an appeal under § 472.160.1(1)— (13). Id. (citing In re Estate of Forhan, 149 S.W.3d 537, 540 (Mo.App. S.D.2004) (notice of appeal filed eleven days after denial of claim untimely); Burg, 68 S.W.3d at 545; Kemp v. Balboa, 959 S.W.2d 116, 118 (Mo.App. E.D.1997)).

In a concurring opinion, Judge Bates provided further reasons for refusing to apply Rule 81.05 to interlocutory probate orders. He noted that the delayed finality for judgments specified in Rule 81.05(a) was intended to accommodate the time periods during which the trial court retains jurisdiction to modify a final judgment or afford other relief from judgment, either sua sponte or for the grounds stated in an authorized post-judgment motion. 204 S.W.3d at 751 (Bates, J., concurring). This rationale has no application to the orders enumerated in § 471.160.1(1) — (13), however:

The incorporation of this jurisdictional limitation into Rule 81.05 should have no bearing on how one computes the time for filing a notice of appeal from an interlocutory probate order that is permissively appealable pursuant to § 472.160.1(1) — (13) because no similar, automatic loss of jurisdiction takes place. Unless an appeal is taken, the trial court in a probate proceeding retains jurisdiction, for good cause, to vacate or modify its orders at any point prior to the expiration of the time for appealing from the order of final distribution of a decedent’s estate. See § 472.150.

Id. Judge Bates also emphasized that application of Rule 81.05 “could permit the timely filing of a notice of appeal from an interlocutory, appealable order up to 120 days after its entry. I find that result inconsistent with the purpose of § 472.160.1(1) — (13), which is intended to allow expedited appeals from such orders.” Id. at 752. Finally, Judge Bates noted that Rule 74.01, which defines a “judgment,” is not made applicable in probate proceedings by Rule 41.01, and that Rule 74.01 has not been applied in such proceedings (to require, for example, that the orders made appealable under § 471.160.1(1) — (13) be expressly denominated as judgments in order to be immediately appealed). Id.

Thus, in order to have properly appealed the circuit courts denial of its claim, the Department was required to file a Notice of Appeal within ten days of that denial. It failed to do so. The Department accordingly waived its right to an immediate, interlocutory appeal of the trial courts ruling.

Although it failed to take advantage of its right to an interlocutory appeal of the circuit courts order denying its claim, the Department is not without recourse.

An immediate appeal of orders encompassed by Section 472.160 is not mandatory; rather, the statute only creates a right of appeal. If a party chooses not to exercise this right, the particular matter may be appealed following final settlement or other judicial action fully and finally disposing of the proceeding.

Burg, 68 S.W.3d at 545 (citations omitted). Thus, “[pjrocedurally, this case remains in the same posture as if no permissive appeal had been attempted.” Forhan, 149 S.W.3d at 542; see also Straszynski, 265 S.W.3d at 396; Blair v. Blair (Estate of Blair), 317 S.W.3d 84, 88 (Mo.App. S.D.2010) (party permitted to appeal probate division ruling following the entry of final distribution order, after foregoing earlier permissive interlocutory appeal under § 472.160.1(1)(13)).

Conclusion

The appeal is dismissed.

All concur.

      . Statutory references are to the RSMo 2000, updated through the 2009 Cumulative Supplement.

      . Although not stated in the Standley majority opinion, the Southern District has subsequently held that Rule 81.05 does apply to appeals taken under § 472.160.1(14), which authorizes an appeal "[i]n all other cases where there is a final order or judgment of the probate division of the circuit court under this code except orders admitting to or rejecting wills from probate.” See Estate of Straszynski v. Clark, 313 S.W.3d 140, 142 n. 3 (Mo.App. S.D.2010).

      . The Departments Notice of Appeal was filed within ten days of the circuit courts denial of its Motion to Set Aside the denial of its claim. But even if the circuit courts refusal to set aside its earlier interlocutory order was itself reviewable on appeal, such a ruling would be reviewed only for an abuse of discretion. See Drewel v. Post Mach. Co., 880 S.W.2d 932, 933 (Mo.App. E.D.1994); Meier v. Estate of Seiser (In re Seiser), 604 S.W.2d 644, 646 (Mo.App. E.D.1980). No such abuse of discretion appears here, where the Department merely reasserted the same legal arguments that it had made prior to the circuit courts initial denial of its claim, and that initial denial is not itself subject to interlocutory appellate review for the reasons we have explained.


author: ROBERT S. BARNEY, Judge.

text:
    Christopher L. GRAY, Appellant, v. STATE of Missouri, Respondent.
    No. SD 29810.
    Missouri Court of Appeals, Southern District, Division One.
    July 6, 2010.
    Motion for Rehearing or Transfer Denied July 27, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Michael A. Gross, St. Louis, for Appellant.
    Chris Koster, Atty. Gen. and Daniel N. McPherson, Jefferson City, for Respondent.
   ROBERT S. BARNEY, Judge.

Christopher L. Gray (“Movant”) appeals the motion court’s denial without an evi-dentiary hearing of his “Motion to Vacate, Set Aside, or Correct the Judgment or Sentence” filed pursuant to Rule 29.15. He raises one point of motion court error centering on allegations of ineffective assistance of counsel.

The record reveals Movant was charged in three separate “FELONY INFORMATION[S]” with the following crimes: one count of the class A felony of sexual exploitation of a child, a violation of section 578.023, for “knowingly videotaping] and creating] obscene material and child pornography with ... K.G. ...,” an eleven-year-old female child; five counts of the felony of statutory sodomy in the first degree, a violation of section 566.062, for having deviate sexual intercourse with K.G.; one count of the felony of statutory rape in the first degree, a violation of section 566.032, for engaging in sexual intercourse with K.G.; one count of the felony of statutory rape in the first degree, a violation of section 566.032, for engaging in sexual intercourse with A.G., a six-year-old female child; and one .count of the felony of statutory sodomy in the first degree, a violation of section 566.062, for engaging in deviate sexual intercourse with A.G. The aforementioned nine counts were consolidated for purposes of trial.

A bench trial was held in this matter on February 21, 2006. Following trial, the trial court found Movant guilty of all nine counts charged. He was then sentenced to thirty years imprisonment on the sexual exploitation of a minor charge; thirty years imprisonment on three of the statutory sodomy charges relating to K.G.; life imprisonment on two of the statutory sodomy charges relating to K.G.; thirty years imprisonment on the statutory rape charge relating to K.G.; thirty years imprisonment on the statutory rape charge relating to A.G.; and ten years imprisonment on the statutory sodomy charge relating to A.G. The trial court further ruled that with the exception of the ten year sentence for the statutory sodomy of A.G., which was to run concurrent to the other sentences, all of the sentences were to run consecutively.

In his direct appeal to this Court, Mov-ant’s conviction for the sexual exploitation of K.G. was affirmed; however, the other eight convictions were reversed and remanded for a new trial. See Gray, 230 S.W.3d at 621.

Movant filed his pro se Rule 29.15 motion on December 21, 2007. Although the docket entry reflects that Movant had private counsel, it appears that his counsel did not file an amended Rule 29.15 motion, i The motion court denied Movant’s request for an evidentiary hearing and issued its] findings and judgment on April 13, 2009.1 This appeal by Movant followed. I

Movant maintains the following error,! relating to his counsel’s performance in hi! single point on appeal: I

(1) his trial attorney consented to thl consolidation of three separate cases fol trial and persuaded him to waive hil right to trial by jury, (2) counsel weB aware that the prosecution would prB pound evidence of DNA analyses pertinent to charges alleged in only two of the consolidated cases, (3) absent the prejudicial influence of the DNA evidence, the [State’s] proof with respect to the sole charge in the remaining case was not likely to persuade a jury of his guilt beyond a reasonable doubt, and (4) he was found guilty in the third consolidated case and sentenced to imprisonment for 30 years.

As best we discern Movant’s point relied on in conjunction with the argument portion of the brief, Movant is asserting ineffective assistance of counsel centering on (a) counsel’s consent to the consolidation of three separate cases for trial wherein counsel should have been or was aware that DNA evidence relevant and pertinent to only statutory rape and statutory sodomy charges would have a prejudicial spillover effect on the charge of sexual exploitation of a minor; and (b) counsel gave him ineffective assistance by advising Movant to waive his right to trial by jury, all of which led to his conviction.

Appellate review of a motion court’s ruling on a Rule 29.15 motion for postconviction relief is limited to a determination of whether the motion court’s findings of fact and conclusions of law issued in support thereof are clearly erroneous. Rule 29.15(k); see Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). “The findings of the motion court are presumptively valid.” Fry v. State, 244 S.W.3d 284, 285 (Mo.App.2008). “Findings and conclusions are clearly erroneous if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made.” State v. Taylor, 944 S.W.2d 925, 938 (Mo. banc 1997).

When the basis for relief is ineffective assistance of counsel, the movant is entitled to an evidentiary hearing if the movant ‘alleges facts, not refuted by the record, showing that counsel’s performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney and that movant was thereby prejudiced.’

Kuehne v. State, 107 S.W.3d 285, 292 (Mo.App.2003) (quoting State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997)). To prevail on a claim of ineffective assistance of counsel, Movant must establish by a preponderance of the evidence that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby. State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the performance prong, Movant “must overcome the presumptions that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment.” Simmons, 955 S.W.2d at 746. Prejudice exists where there is a reasonable probability that the outcome of the proceeding would have been different but for counsel’s ineffectiveness. Id. If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and Movant’s claim of ineffective assistance of counsel must fail. Id. Furthermore, a motion court is not required to grant an evidentiary hearing if “ ‘the motion and the files and records of the case conclusively show that the movant is entitled to no relief.’” Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997) (quoting Rule 24.035(h)).

For ease of analysis we first address Movant’s allegation that his trial counsel was ineffective for persuading him “to waive his right to trial by jury....”

It has long been held that “[a] criminal defendant ... has both a federal and state constitutional right to have a jury decide his or her guilt or innocence;” however, under Rule 27.01(b) a defendant may waive his right to a jury trial with the assent of the trial court. Luster v. State, 10 S.W.3d 205, 210 (Mo.App.2000). “The requirement in the rule that the waiver, in cases of felonies, must be ‘in open court and entered of record,’ does not require that it be in writing, although it is preferred.” Id. (quoting State v. Mosley, 728 S.W.2d 237, 238 (Mo.App.1987)).

To satisfy the performance prong of the Strickland test, so as to be entitled to an evidentiary hearing on this claim of ineffective assistance of trial counsel, the [movant] was required to allege facts, not conclusions, which were not refuted by the record and demonstrated that his trial counsel, before waiving the [mov-ant’s] right to a jury trial, was required, but failed, to advise him of this right and obtain his voluntary consent to waive it. Although in advising the [movant] of his right to a jury trial, his trial counsel was not required to use any specific terminology or insure that he had the same appreciation of such right as a member of the legal profession, he did have an obligation to explain the right to reasonably insure that the [movant] had an ‘awareness of the meaning, incidents and benefits of a trial by jury and the implications and consequences of waiver of the right.’

Id. at 211-12 (quoting Burrage v. State, 477 S.W.2d 118, 120 (Mo.1972)) (internal citations omitted).

Here, Movant stated in his Rule 29.15 motion that he was persuaded by his trial counsel to waive his right to a jury trial despite the fact that Movant “did not fully understand the potential benefits of trial before lay jurors as opposed to trial before a judge and [he] did not feel free to insist upon trial by jury.” Accordingly, he argued his jury trial waiver was “not knowing and voluntary.” We observe that six pages of the trial transcript were devoted to Movant’s waiver of his right to counsel, and the trial court extensively examined Movant as to the rights he would relinquish by waiving a jury trial. Movant also denied having been threatened or promised anything in exchange for waiving his jury trial. Additionally, Movant stated that he “wantfed] to waive the jury on [his] own free will and [he] understood] and [was] fine with that.” Lastly, just before the trial court returned its verdict, it asked Movant about his trial counsel’s performance. Movant responded he was satisfied with his trial counsel’s representation and also stated that he “did a fine job.” As the State correctly points out in its brief and as we now hold, similar claims of ineffective assistance of counsel have been rejected by the motion court when the trial transcript reflects, as it does in this case, that Movant appeared in open court and expressed his desire to waive a jury trial. See State v. McGregory, 955 S.W.2d 227, 228 (Mo.App.1997). Our review of the record clearly shows that he waived his right to a jury trial voluntarily, knowingly and intelligently. Britt, 286 S.W.3d at 864.

Movant next argues that his trial counsel was ineffective for consenting to the “consolidation of three separate cases for trial ...” because the DNA evidence introduced by the State in relation to two of the three cases against him unfairly prejudiced the factfinder in relation to the third case which involved allegations of sexual exploitation of a minor. He asserts that his counsel’s decision to consolidate the cases resulted in him being convicted of the sexual exploitation charge.

Here, on November 4, 2005, at a pretrial hearing, the State made a verbal motion to consolidate the three cases against Movant for the purposes of trial. The trial court noted in its docket sheet that it was ordering the “causes tried simultaneously and as related cases. Parties agree to said entry.” In his Rule 29.15 motion, Movant then alleged ineffective assistance of counsel because trial counsel failed

to secure a separate trial of the charge of sexual exploitation of a minor ... in view of the existence and ultimate introduction of DNA evidence that would constitute compelling proof of the statutory rape and statutory sodomy charges but would have no relevance to the sexual exploitation of a minor charge and would be likely to influence the deliberation of the factfinder with respect to the latter charge.

In denying this claim, the motion court found that Movant’s allegation

is purely speculation and not based on facts. He wishes the [motion court] to believe that if not for the other charges (and the DNA evidence) he would not have been convicted of sexual exploitation of a minor. [Movant] seems to forget the overwhelming evidence against him. All charges involved the same victim and witnesses. [Trial counsel] spoke with Movant regarding the State’s Motion to Consolidate and a letter was sent to the [trial court] by [trial counsel] on November 8, 2005[,] stating that as well as the decision not to object. Movant has fail[ed] to establish that [trial counsel] failed to exercise the customary skill and diligence that a reasonable competent attorney would exercise under similar circumstances.... Movant fails to prove he was prejudiced, he merely speculates and forms conclusions without providing this [c]ourt any evidence to support his position.

We agree with the reasoning espoused by the motion court. “ ‘A trial court may, in its discretion and despite the objection of the defendant, consolidate for trial several indictments or informations against the same accused.’ ” State v. Howton, 890 S.W.2d 740, 744 (Mo.App.1995) (quoting State v. Anderson, 785 S.W.2d 299, 304 (Mo.App.1990)). “To determine whether such joinder is permissible, the court should engage in the same inquiry as it would in a challenge to the joinder of several counts into a single information.” Id. “According to Rule 23.05[ 1 and [section] 545.140.2 ... ,[] two or more crimes may be charged in the same indictment or information if all offenses are ‘of the same or similar character.’ ” Id. “Also to be considered is the possibility of confusion or unfair prejudice resulting from the consolidation.” Anderson, 785 S.W.2d at 305.

Under Howton, 890 S.W.2d at 744, and Anderson, 785 S.W.2d at 304-05, the charges here were all sexual offenses committed by Movant against two minor females with the majority of the charges being against the same female; the charges all stemmed from a similar time period; and the facts alleged were similar in nature such that the trial court did not abuse its discretion in permitting consolidation. With that being said, Movant here fails to allege in his brief that the trial court abused its discretion in making the ruling or that his trial counsel would have been successful in making an objection to the State’s motion to consolidate. See Williams v. State, 205 S.W.3d 300, 305 (Mo.App.2006) (holding that it has long been held that a trial counsel’s failure to make a non-meritorious objection is not ineffective assistance of counsel). Movant, instead, focuses his attention on his argument that the consolidation was prejudicial because the DNA evidence might have unduly influenced the factfinder in relation to the sexual exploitation charge. Additionally, as already stated, this was not a jury trial. This matter was tried before the trial court which is presumed to not be “confused or misled by any allegedly irrelevant ... evidence unless the record clearly demonstrates that the trial court considered and relied upon the inadmissible evidence.” State v. Elliott, 271 S.W.3d 604, 607 (Mo.App.2007). Additionally, it is of note that in the direct appeal in this case it was specifically found by this Court that the DNA evidence had no effect on the verdict in relation to the sexual exploitation charge. Gray, 230 S.W.3d at 619. Movant has again failed to plead facts unrefuted by the record and has not proven he was entitled to relief. See Coates, 939 S.W.2d at 914-15. The motion court did not err in denying Movant’s Rule 29.15 motion without an evidentiary hearing. Point denied.

The motion court’s findings of fact and conclusions of law are affirmed.

BATES, P.J., and BURRELL, J., Concur.

      . Ail rule references are to Missouri Court Rules (2009).

      . Unless otherwise stated, all statutory references are to RSMo 2000.

      . The record reveals that K.G. and A.G. were the adopted daughters of Movant. There is no need for this Court to again recite tlH details of the crimes charged above. A fiH recitation of the facts can be found in Stalest Gray, 230 S.W.3d 613 (Mo.App.2007). H

      .This Court has no knowledge as to whetl^B a second trial was held in this matter.

      . We note a written and signed waiver of jury trial was filed in the present matter and Mov-ant also made a verbal waiver in open court. See State v. Britt, 286 S.W.3d 859, 861-62 (Mo.App.2009).

      . Movant’s point relied on takes no issue with whether his waiver was knowing or voluntary. While Movant does raise the knowing and voluntary issue in the argument portion of his brief, it has long been held that this Court only considers arguments set out in the points relied on and we do not consider those arguments raised only in the argument portion of a brief. Helmig v. State, 42 S.W.3d 658, 666 (Mo.App.2001). "Our review of issues is limited to errors contained in the [p]oints [rjelied [o]n.” Id. at 668 n. 3; see Rule 84.04(e). Despite the foregoing malady and the multifarious nature of his point relied on, we have chosen to review his point relied on ex gratia.

      . Rule 23.05 sets out that
      [a]ll offenses that are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.

      . Section 545.140.2 states:
      [n]otwithstanding ... [R]ule 24.07, two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or infractions, or any combination thereof, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.


author: WILLIAM W. FRANCIS, JR., Judge.

text:
    Darwin HOLLY, Appellant, v. TAMKO BUILDING PRODUCTS, INC., and Missouri Division of Employment Security, Respondents.
    No. SD 30138.
    Missouri Court of Appeals, Southern District, Division Two.
    July 16, 2010.
    Motion for Rehearing or Transfer to Supreme Court Denied Aug. 6, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      James D. McNabb of Springfield, MO, for Appellant.
    Virginia L. Fry of Springfield, MO, for Respondent, TAMKO.
    Rachel M. Lewis, Bart Matanic, Jefferson City, MO, for Respondent Employment Security.
   WILLIAM W. FRANCIS, JR., Judge.

Darwin Holly (“Appellant”) appeals a decision by the Labor and Industrial Relations Commission (“Commission”) denying him unemployment benefits. The Commission found that a comment by Appellant that he was eating “Obama fruit” while holding a slice of watermelon at the company picnic of his employer, TAMKO Building Products, Inc. (“TAMKO”), violated TAMKO’s racial harassment policy; therefore, it amounted to misconduct related to work disqualifying him for unemployment benefits. We affirm the Commission’s decision.

Factual and Procedural History

On September 3, 1993, Appellant began his employment with TAMKO. On May 29, 2009, Appellant attended a company picnic at the company plant. He sat down by several co-workers with a slice of watermelon and said, “I’m going to sit down and eat my ‘Obama fruit.’ ” One co-worker stated that he “shook [his] head and said something to the effect of, ‘That isn’t right.’ ” Appellant continued talking to the three co-workers for several minutes and then left.

On June 8, 2009, Appellant’s employment with TAMKO was terminated. According to TAMKO’s “Exit Interview” form, Appellant was terminated for “Misconduct/Rule Violation.” This form also indicated that Appellant acknowledged that the information contained in it was correct.

On June 10, 2009, Appellant filed a claim for unemployment benefits with the Missouri Division of Employment Security (“Division”). TAMKO filed an official protest to Appellant’s claim. TAMKO asserted that Appellant was “not eligible for unemployment benefits because he was discharged for misconduct connected with his work.” TAMKO filed with its protest a copy of its “PREVENTION OF HARASSMENT POLICY”, which stated that “no form of harassment should be present in the workplace.” The policy defined racial harassment to include “making racially derogatory jokes, comments or displaying or possessing racially derogatory or offensive symbols, emblems, writings or other documents on TAMKO property or while conducting TAMKO business where such conduct interferes with a person’s work performance or creates an intimidating, hostile or offensive working environment.” Also attached were forms signed by Appellant indicating that he completed refresher training on TAMKO’s policies in 1999, 2002, 2005 and 2006. The protest also contained a copy of the exit interview signed by Appellant, where he acknowledged that he was fired for violation of the harassment policy.

A deputy with the Division determined that Appellant was disqualified from receiving unemployment benefits because Appellant was discharged for violation of TAMKO’s harassment policy. Appellant filed a “REQUEST FOR APPEAL OR RECONSIDERATION” to the Division’s Appeals Tribunal. The Appeals Tribunal held a hearing. TAMKO submitted two exhibits which were written statements made by two other TAMKO employees who heard Appellant’s comment. The first statement, by Matt Parrish, recited that he was preparing food for a company picnic when Appellant asked if he could sit down by him. Parrish answered in the affirmative and then Appellant said, “I’m going to sit down and eat my ‘Obama fruit.’ ” Parrish asked Appellant if he had said “Obama fruit,” and Appellant answered in the affirmative. Parrish then “shook [his] head and said something to the effect of, ‘That isn’t right.’ ... [Appellant] then told a story regarding antique cars and left a few minutes later.” The second statement, by Larry W. Prewitt, Jr., also stated that Appellant sat down and said “Obama fruit.” Prewitt stated further that “Mottling was mentioned about the comment until Monday when [Parrish] asked me if I heard any derogatory comments from [Appellant] on the previous Friday at which point I confirmed that I had heard the statement.” The Appeals Tribunal also heard testimony from Appellant and Bennett Cole Williams, TAMKO’s Human Resources Manager. Williams testified that the term “Obama fruit” was a racially derogatory comment, and Appellant’s use of the term violated TAMKO’s policy against racial harassment. Appellant testified that he did make the comment “Obama fruit,” but stated that “in my mind I was calling the president a melon head, no reference to racial whatsoever, I’m not a racist, but it was just a political statement in my mind.” The Appeals Tribunal upheld the Division’s ruling and reached the following conclusion:

The claimant made a comment that he was going to eat ‘Obama fruit.’ The term ‘Obama fruit’ taken alone is not a racially derogatory comment. But, the comment was made while the claimant was eating a slice of watermelon at a company sponsored cookout at the plant. In that setting, the claimant’s comment violated the employer’s policy. Therefore, the claimant committed misconduct which resulted with the termination of his employment.

Appellant then filed an Application for Review with the Commission. The Commission affirmed the decision of the Appeals Tribunal and “adopt[ed] the decision of the Appeals Tribunal as the decision of the Commission in this matter.”

Appellant’s sole point relied on alleges that there was insufficient evidence to support the Commission’s decision that Appellant was disqualified from receiving unemployment benefits because he was terminated for misconduct.

Standard of Review

The Commission’s decision can only be modified, reversed, remanded or set aside on appeal on one of the following grounds:

(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....

Section 288.210. Appellant’s challenge confines our review to the ground set forth in section 288.210(4).

Analysis

Generally, a person claiming unemployment benefits is not eligible to receive those benefits “[i]f a deputy finds that a claimant has been discharged for misconduct connected with the claimant’s work-” Section 288.050.2.

Section 288.030.1(23) provides the following definition for “misconduct”:

[A]n 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.

“Where an employer alleges the employee was fired for misconduct, the employer bears the burden of demonstrating misconduct by a preponderance of the evidence.” Ahearn v. Lewis Cafe, Inc., 308 S.W.3d 294, 297 (Mo.App. E.D.2010). Our review for misconduct is both a question of fact and law. We defer “to the Commission’s resolution of conflicting evidence regarding a factual issue, the weighing of evidence, and witness credibility”; however, “[w]hether a claimant’s conduct is considered misconduct in connection with his work is a legal question to which we do not defer to the Commission’s determination.” Guccione v. Ray’s Tree Service, 302 S.W.3d 252, 256 (Mo.App. E.D.2010) (internal citation omitted).

“The violation of a reasonable work rule can constitute misconduct.” Rapid Roberts, Inc. v. Potter, 125 S.W.3d 395, 397-98 (Mo.App. S.D.2004). In this case, TAMKO’s “PREVENTION OF HARASSMENT POLICY” qualifies as a reasonable work rule because harassment in the employment setting is prohibited in Missouri.

Appellant relies on Dolgencorp, Inc. v. Zatorski, 134 S.W.3d 813 (Mo.App. W.D.2004), for the proposition that a third person’s perception of an act is not enough to prove intent. Zatorski was terminated “for violating [Dolgencorp’s] sexual harassment policy.” Id. at 814. Zatorski signed an agreement that he would “abide by Dolgencorp’s sexual harassment policy.” Id. Zatorski sought to organize a union. Id. at 815. At a lunch provided by the company, Zatorski decided to complete a demonstration and “selected a fried chicken leg to represent a union worker and a baked chicken leg to represent a non-union worker.” Id. At some point, Zatorski “grasped the baked non-union chicken leg with a strangling or choking motion and squeezed the chicken between both his hands. As he did this, he said he was ‘choking the chicken.’ ” Id. Several employees complained that this act was sexual in nature because it referred to masturbation; Zatorski was fired for violation of Dolgencorp’s sexual harassment policy. Id. The Appeals Tribunal ruled that Zator-ski’s action did not rise to the level of misconduct and found that he was not disqualified for benefits and Dolgencorp appealed. Id. at 816. The Court recognized that “Zatorski may have violated Dolgeneorp’s sexual harassment policy resulting in discharge, yet still qualify for unemployment compensation if his conduct is not proven to rise to the level of misconduct.” Id. at 818. The Court also stated that “[i]t is not sufficient that other employees perceive that the actions of the employee are contrary to the employer’s rules. The violations must be intended.” Id. The Court noted that “no documents were in the record with the actual sexual harassment policy.” Id. at 819. The Court also noted that the Commission did not “make findings on the issues of whether Mr. Zatorski’s comments included the statement that he liked breasts and what he intended in making the gesture and comment about choking the chicken.” Id. The Court then reversed the finding of the Commission because it “did not resolve all of the disputed factual issues.... ” Id. at 820.

In this case, unlike Zatorski, there was a copy of TAMKO’s harassment policy in the record, the Commission did not rest its conclusion solely on the perception that others concluded Appellant’s comment violated the rules, and there are no unresolved factual issues. Here, the Commission resolved the factual dispute regarding Appellant’s intent. The Commission found that he admitted to making the comment regarding “Obama fruit.” The Commission found that he did so while eating a slice of watermelon. Thus, the Commission concluded that the comment violated TAMKO’s racial harassment policy in the context in which it was made.

These facts are more closely akin to those recited in Ernst v. Sumner Group, Inc., 264 S.W.3d 669 (Mo.App. E.D.2008) and Acord v. Labor and Indus. Relations Comm’n, 607 S.W.2d 174 (Mo.App. S.D.1980). In Ernst, Sumner Group had a policy that prohibited employees from sending “any material or information of a personal, frivolous, sexual, or similar nature.” Ernst, 264 S.W.3d at 670. Sumner Group discovered that Ernst had sent “emails containing graphic sexual content and racially derogatory materials ...” in violation of its policy. Id. at 670-71. Ernst was terminated, and the Deputy “determined that Ernst was disqualified for unemployment benefits because he was discharged for misconduct connected with work.” Id. at 671. The Commission reversed the Deputy’s decision. Id. The Court found that the policy was reasonable and the “violation was deliberate as Ernst signed an acknowledgement form indicating his awareness of the policy and its restrictions, yet he sent the materials anyway.” Id. at 672. The Court reversed the Commission’s decision and reinstated the Deputy’s determination that Ernst was disqualified from receiving unemployment benefits. Id. at 673.

In Acord, Acord was called into her supervisor’s office and at some point “lost her temper and called her supervisor a motherfucker.” Acord, 607 S.W.2d at 175. The Commission found that Acord had made an obscene remark, which constituted misconduct. Id. As a result, Acord was denied unemployment benefits. Id. Acord challenged the Commission’s findings as not supported by substantial evidence. Id. Acord argued “that such language has been held not to be obscene.” Id. at 175-76. The Court responded that the Commission did not have to decide if the term was legally obscene or whether she had a right to say it. Id. at 176. The Commission only had “to decide if, in the situation and context said, its use was misconduct.” Id. The Court found there was evidence to support the Commission’s finding of misconduct and affirmed its decision. Id.

Like the employee in Ernst, Appellant signed several acknowledgements over the course of his employment that he was aware of TAMKO’s harassment policy and its restrictions. Appellant admits that on his own volition, he made the comment that he was eating “Obama fruit” in reference to the slice of watermelon he was eating. Furthermore, he signed his exit interview form and acknowledged as correct the fact that he was being terminated for “Misconduct/Rule Violation” of TAM-KO’s harassment policy. Like the Commission’s role in Acord, here the Commission did not have to determine that the phrase “Obama fruit” would be racial harassment in all circumstances, but only had to determine if it constituted racial harassment in this situation and context. Appellant’s point is denied.

The judgment of the Commission is affirmed.

LYNCH, P.J. and RAHMEYER, J„ CONCUR.

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