author: RITA W. GRUBER, Judge.

text:
    2009 Ark. App. 175
    Henry Wayne MILLS, Appellant, v. Henry MILLS, Appellee.
    No. CA 08-555.
    Court of Appeals of Arkansas.
    March 11, 2009.

      Sanford Law Firm, PLLC, by: Josh Sanford, Russellville, for appellant.
    Kenneth A. Hodges, Russellville, for ap-pellee.
   RITA W. GRUBER, Judge.

| Appellant Henry Wayne Mills, the twenty-two-year-old son of appellee Henry Mills, intervened in an existing domestic-relations case between his parents to collect unpaid child support on his own behalf. He appeals the trial court’s order awarding him a judgment in the amount of $13,018.80, which amount includes an attorney’s fee of $1,100.50 and court costs of $100. The trial court also ordered that interest shall accrue on the judgment at a rate of ten percent per annum. Appellant brings two points on appeal: first, the trial court erred in awarding interest from the date the petition to collect child support was filed rather than from the date the child support should have been paid; and second, the trial court abused its discretion in granting the statutory minimum in attorney’s fees. We reverse and remand for the trial court to recalculate the amount of interest due to appellant, but we find no abuse of discretion with regard to the court’s award of attorney’s fees.

| ¿Interest

We turn to appellant’s first point on appeal: interest awarded. The amount of interest due on unpaid child support is governed by statute. See Ark.Code Ann. § 9-14-233(a) (Repl.2008). We review a trial court’s interpretation of a statute de novo, as it is for the appellate courts to decide what a statute means. Baker Refrigeration Sys., Inc. v. Weiss, 360 Ark. 388, 201 S.W.3d 900 (2005).

Appellant contended in the trial court that Ark.Code Ann. § 9-14-233(a) required the trial court to award interest on the unpaid child support from the date that it should have been paid. The trial court rejected appellant’s argument and awarded interest on the unpaid child support from the date appellant filed his petition to collect the unpaid support. The trial court agreed in the hearing that the statute provided that interest accrued when the child support became due; however, the court determined that the language in section 9-14-233(a) was not mandatory, and it found such a calculation of interest was not equitable in the case before it because of the delay between the time the support became due and the time appellant filed his petition.

There are two questions before this court: what does the language in the statute mean, and is this language mandatory? Arkansas Code Annotated section 9-14-233(a) provides that “[a]ll child support that becomes due and remains unpaid shall accrue interest at the rate of ten percent (10%) per annum unless the owner of the judgment or the owner’s counsel of record requests prior to the accrual of the interest that the judgment shall not accrue | ¿interest.” The basic rule of statutory construction is to give effect to the intent of the legislature. Great Lakes Chem. Corp. v. Bruner, 368 Ark. 74, 82, 243 S.W.3d 285, 291 (2006).

Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible.

Id. (internal citations omitted).

The language in the statute before us states that interest shall accrue at the rate of ten percent per annum on “[a]ll child support that becomes due and remains unpaid.” This statute governs actions to collect unpaid child support; it does not govern the enforcement of earlier judgments that have already been entered. Unpaid child support becomes due on the date the initial child-support order requires it to be paid, not on the date a petition is filed to collect it. See, e.g., Sharwm v. Dodson, 264 Ark. 57, 60, 568 S.W.2d 503, 505 (1978) (stating that entitlement to payment of child-support installments vested as they accrued). We explained the difference between an action to collect accrued child-support arrearages and an action to enforce a judgment in Johns v. Johns, 103 Ark.App. 55, 286 S.W.3d 189 (2008).

In Johns, Ms. Johns had obtained judgments in 1982, 1995, and 1999 for unpaid child |4support owed by Mr. Johns. In 2006, Ms. Johns filed a motion for contempt against Mr. Johns for refusing to make payment on these arrearages and sought to enforce the 1999 judgment. Mr. Johns argued that Ms. Johns’s action was barred by the statute of limitations because the youngest child was more than twenty-three years old when the motion for contempt was filed in 2006. He argued that Ark.Code Ann. § 9-14-236(c) (Repl. 2008) only allowed actions for the collection of child-support arrearages to be brought “any time up to and including five (5) years beyond the date the child for whose benefit the initial child support order was entered reaches eighteen (18) years of age.”

We held that Mr. Johns’s reliance on this statute of limitations was misplaced because Ms. Johns was not bringing an action to recover accrued child-support ar-rearages from an initial support order but, rather, was seeking enforcement of a judgment, which was governed not by Ark. Code Ann. § 9-14-236 but by Ark.Code Ann. § 9-14-235. The court defined “accrued child support arrearages” as “a delinquency owed under a court order or an order of an administrative process established under state law for support of any child or children that is past due and owing.” Johns, 103 Ark.App. at 58, 286 S.W.3d at 191 (citing Ark. Code Ann. § 9-14 — 236(a)(1)). Citing Ark.Code Ann. § 9-14-235(e), the court defined a “judgment” as “unpaid child support and medical bills, interest, attorney’s fees, or costs associated with a child support case when such has been reduced to judgment by the court or become a judgment by operation of law.” Id.

In 1989, at the time Ark.Code Ann. § 9-14-233(a) was first enacted, a statute |figoverning the accrual of interest on a judgment already existed. Arkansas Code Annotated section 16-65-114 provides that interest on a judgment entered by a court shall bear interest at ten percent per annum. This statute has been in effect for judgments enforcing child-support arrearages since long before 1989. See, e.g., Shaman, 264 Ark. at 62, 568 S.W.2d at 506 (citing Ark. Stat. Ann. § 29-124 — the predecessor to Ark.Code Ann. § 16-65-114 — and stating that there is no question that the judgment for child-support arrearages bore interest at ten percent per annum). We find it difficult to believe that the legislature would have enacted a statute in 1989 simply to maintain the status quo and authorize something that had already long been the law regarding interest on judgments without even mentioning the word judgment. Rather, Ark.Code Ann. § 9-14-233(a) was aimed not at judgments but at the actual child-support arrearage — that is, at the “child support that becomes due and remains unpaid” — just as the plain language of the statute indicates.

Indeed, while not in issue in these cases, it appears that both this court and the supreme court have affirmed circuit court decisions awarding interest from the date the child support became due and remained unpaid rather than from the date the petition to collect the unpaid support was filed. See, e.g., Jones v. Billingsley, 363 Ark. 96, 98, 211 S.W.3d 508, 510 (2005) (awarding judgment for past-due child support of $10,816, plus interest of $4,867.20); Brandt v. Brandt, 103 Ark. App. 66, 70, 286 S.W.3d 202, 205 (2008) (requiring |ficircuit court to recalculate past-due child support and noting that “appropriate interest amounts should then be based upon these recalculations,” citing Ark.Code Ann. § 9-14-233(a)).

We now turn to the second question: is it mandatory that the circuit court award this interest? The language in the statute provides as follows: “[a]ll child support that becomes due and remains unpaid shall accrue interest at the rate of ten percent (10%) per annum unless the owner of the judgment or the owner’s counsel of record requests prior to the accrual of the interest that the judgment shall not accrue interest.” Ark.Code Ann. § 9-14-233(a) (emphasis added). Our supreme court has consistently held that the use of the word “shall” means that the legislature intended mandatory compliance with the statute unless such an interpretation would lead to an absurdity. Ramirez v. White County Circuit Court, 343 Ark. 372, 380, 38 S.W.3d 298, 303 (2001). The statute states that all child support that becomes due and remains unpaid shall accrue interest unless the owner of the judgment or the owner’s counsel of record requests prior to the accrual of the interest that the judgment not accrue interest. In this case, the owner of the judgment has not so requested; the legislature’s intent for unpaid child support to accrue interest is not an absurdity; and thus we hold that the statute required the circuit court to award interest on the unpaid child support from the time that it became due and remained unpaid, not from the date the petition was filed. We therefore reverse and remand for entry of an order consistent with this opinion.

Attorney’s Fees

17Appellant’s second point on appeal is that the circuit court abused its discretion by awarding the statutory minimum in attorney’s fees and that it violated his right to due process because it failed to afford him a hearing on this issue. We turn first to appellant’s contention that his right to due process was violated. First, it is unclear whether appellant is arguing that his right to due process under the United States Constitution or under the Arkansas Constitution or under both has been violated. Further, he has failed to mention of what life, liberty, or property interest he has been deprived by the circuit court’s alleged failure to afford him a hearing on the proper amount of attorney’s fees due to his attorney. Finally, he provides no convincing argument and no authority to show that the fees awarded to his attorney implicate appellant’s right to due process. We will not consider an argument, even a constitutional one, if appellant makes no convincing argument or cites no authority to support it. Hendrix v. Black, 373 Ark. 266, 283 S.W.3d 590 (2008).

We now turn to appellant’s assertion that the circuit court abused its discretion in awarding the statutory minimum in attorney’s fees. We will not set aside an award of attorney’s fees absent an abuse of discretion by the circuit court. Calvert v. Estate of Calvert, 99 Ark.App. 286, 288, 259 S.W.3d 456, 459 (2007). Arkansas Code Annotated section 9-14-233(b) (Repl.2008) states that the circuit court “shall award a minimum of ten percent (10%) of the support amount due or any reasonable fee, including a contingency fee approved by the circuit court, as attorney’s fees in actions for the enforcement of payment of support provided for in the order.” At the hearing, appellant’s attorney argued that his | sclient should be made whole with regard to attorney’s fees and that appellant was paying his attorney one-third of the judgment collected. In spite of this, the circuit court awarded ten percent of the support due as an attorney’s fee. The statute does not require the court to award a contingency fee. It gives the judge the discretion to award either “ten percent (10%) of the support amount due” or “any reasonable fee.” We hold that the circuit court did not abuse its discretion.

Reversed and remanded in part; affirmed in part.

PITTMAN and BAKER, JJ., agree.

      . This provision was initially enacted in 1989, and the italicized portion of the statute was added in 2001 by Act 1248.

      . We note that Ark.Code Ann. § 9-12-309(c), found in the chapter on divorce and annulment, contains identical language to Ark.Code Ann. § 9-14 — 233(a) and was in effect in 1989.


source: Caselaw Access Project

author: THOMPSON, Judge:

license: Public Domain

text:
    Jimmy Dale DUKES and Delores Dukes, Appellants, v. William Corey LINK, Appellee.
    No. 20O9-CA-0OO183-MR.
    Court of Appeals of Kentucky.
    July 2, 2010.

      Randal K. Epley, Russellville, KY, for appellant.
    Fred G. Greene, Russellville, KY, for appellee.
    Before NICKELL and THOMPSON, Judges; BUCKINGHAM, Senior Judge.

      . Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

THOMPSON, Judge:

This is an appeal from the Logan Circuit Court which found that an express easement existed over the property owned by Jimmy Dale and Delores Dukes in favor of the adjoining property owned by William Corey Link. The Dukes contend that because the easement was not contained in their chain of title, the easement was extinguished or, alternatively, that it had been abandoned by Link and they claim ownership to the property by adverse possession.

We agree with the trial court that an easement created by a recorded deed of the dominant tenement is not extinguished by its failure to be mentioned in the deed to a subsequent purchaser of the real property under the easement. We further conclude that the trial court did not abuse its discretion when it found that the easement had not been abandoned and denied the Dukes’ claim of adverse possession. Therefore, we affirm.

The Dukes own lots 10 and 11 and Link owns adjoining lot 12 in a Logan County Subdivision. The lots were part of a larger tract known as the “Adler development” and owned by common grantors, Willie Adler and his wife, Bettye Adler. The parties stipulated that the deeds in Link’s chain of title all described the easement now disputed. However, because the chain of title to the three parcels is central to our analysis, a brief description of the easement and subsequent conveyances is warranted.

By deed dated June 9, 1962, and recorded in Deed Book 175 at page 274 in the Logan County Court Clerk’s Office, the Adlers conveyed lot 12 to John A. Lile and his wife, Ruby Lile, in which the easement subject to the present litigation was created. Specifically, the deed stated:

Said Lot No. 12 of Adler’s plat is conveyed together with an easement for driveway purposes over an existing gravel road which extends from Lot No. 12 through property of the grantors, Willie Adler and wife, Bettye Adler, to a county road.

The easement as described, in part, crossed a portion of lot 11, originally owned by the Adlers and extended from Lake Malone to a public road providing access from the road to the water’s edge.

The property was again conveyed by deed dated May 27, 1987, which was duly recorded, from the Liles to Lewis Chapman and Jean Chapman which described precisely the same easement as that granted to the Liles by the Adlers. Subsequent conveyances of lot 12 of the original Adler development occurred in May 1992, March 1995, and April 1995, by deeds containing the same express easement description, all of which were recorded in the Logan County Court Clerk’s Office. Finally, Link was conveyed lot 12 in October 1999, by deed containing the exact easement described in the 1962 recorded deed from the original grantors to the Liles and all subsequently recorded deeds.

Lots 10 and 11, now owned by the Dukes and which were also a part of the larger tract owned by the Adlers, were initially conveyed by the Adlers in March 1986 to Delmar Willis and his wife, Glode-an Willis. The deed contained no reference to an easement over the property in favor of adjoining lot 12. Likewise, the deed conveying the property from the Wil-lises to the Dukes did not contain the express easement created by the 1962 deed conveying lot 12.

The easement is a gravel roadway that leads to the water’s edge. In 2006, Link replaced an existing mobile home on lot 12 with a constructed home which abuts the property line of lot 12. As a result, the only vehicular access Link presently has to Lake Malone is the easement conveyed in the 1962 deed and referenced in his deed. The present controversy arose in 2006, when the Dukes erected a gate across the easement which caused the filing of this action seeking an order requiring the gate’s removal. In response to the complaint, the Dukes denied the existence of a valid easement across their property and filed a counterclaim alleging ownership by adverse possession.

During a bench trial, evidence was presented that the gravel roadway extending the entire distance from the public roadway to Lake Malone is clearly visible and used, at various times, by the owners of lot 12. Although the Dukes denied knowledge of the easement’s existence, there was evidence that Link’s predecessors in title had discussed the easement with Mr. Dukes and a surveyor testified that the easement was easily observable, which photographs confirmed.

The trial court concluded that by virtue of the 1962 deed and continued inclusion of the easement in Link’s chain of title, an easement existed regardless of whether it was mentioned in the servient estate’s chain of title. Although the trial court found that the use of the easement was sporadic from 1962 until the present, no evidence was presented that Link or his predecessors in title took any action indicative of a specific intent to abandon the easement and there was no evidence that the Dukes continuously, openly or notoriously asserted ownership over the easement for a period of fifteen years. To the contrary, the trial court found that the “first and only act denying access by anyone to the roadway was when the Dukes placed a gate across the entrance to the roadway less than a year prior to the filing of this action.”

The initial issue we address is whether the easement described in Link’s chain of title is enforceable or, as urged by the Dukes, the omission of the easement in their chain of title precludes its enforcement. We emphasize that lots 10, 11, and 12, were part of a larger tract owned by a common grantor and the subject easement was included in all recorded deeds of conveyance of lot 12 since its creation. Our resolution of the issue presented begins with a review of the long ago established precedent regarding easements.

Easements are created by express written grant, implication, prescription or estoppel. An express easement is created by a written grant with the formalities of a deed. Loid v. Kell, 844 S.W.2d 428, 429 (Ky.App.1992). The nature of an easement is distinguishable from a mere license in that it is an incorporeal right-always separate and distinct from the right to occupy and enjoy the land itself. Lyle v. Holman, 238 S.W.2d 157, 159 (Ky.1951). It is a privilege or an interest in land and invests the owner with “privileges that he cannot be deprived of at the mere will or wish of the proprietor of the servient estate.” Louisville Chair & Furniture Co. v. Otter, 219 Ky. 757, 294 S.W. 483, 485 (1927). In contrast to a restrictive covenant that restricts the use and enjoyment of property, an easement confers a right upon the dominant tenement to enjoy a right to enter the servient tenement. See Scott v. Long Valley Farm Kentucky, Inc., 804 S.W.2d 15,16 (Ky.App.1991).

Easements can be in gross or appurtenant, the distinction being that “in the first there is not, and the second there is, a dominant tenement to which it is attached.” Meade v. Ginn, 159 S.W.3d 314, 320 (Ky.2004)(quoting 25 Am.Jur.2d Easements and Licenses in Real Property § 11 (1996)). An easement appurtenant inheres in the land and cannot be “terminated by an act of the parties (for example, abandonment, merger, or conveyance) or by operation of law, as in the case of forfeiture or otherwise.” Scott, 804 S.W.2d at 16.

Applying the law discussed to the present case, if Link’s legal assertion is correct, by virtue of the 1962 deed and all subsequently recorded deeds in Link’s chain of title, an easement appurtenant exists over the Dukes’ property in favor of that owned by Link.

Having narrowed our issues and with sufficient legal background, we now turn to the specific issue to be addressed: Did the omission of the easement description in the Dukes’ chain of title extinguish the easement appurtenant described in all recorded deeds in Link’s chain of title? The issue is one of law which is subject to de novo review. Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky.App.2005).

We find precedent for our decision in Hopper v. Beddow, 283 Ky. 337, 141 S.W.2d 278 (1940), where the Court rejected the assertion that an express easement must be mentioned in the deeds of the dominant and servient tenements where both were derived from a common grantor.

The Court recited the long-accepted legal precedent that an easement appurtenant runs with the land and concluded as follows:

A.M. Decker owned both of the lots in 1886, and in that year conveyed one of them to a predecessor in title of the appellees with a provision in the deed for the passway in question. We have noted also that the passway was established and used as such in accordance with the provision in the Ledford deed. It was for the benefit of the adjoining property owners and was an appurtenance to each piece of property and passed with each subsequent conveyance, regardless of whether mentioned in the deeds. See Hatfield v. Hatfield, 150 Ky. 788, 151 S.W. 3 [ (1912) ], and cases cited therein.

Id. at 279. Moreover, easements exist even when the deeds of the dominant and servient tenements do not mention an easement:

“The authorities are agreed, and such is the rule in this state, that where the owner of an entire tract of land, or of two or more adjoining parcels, employs a part thereof so that one derives from the other a benefit or advantage of a continuous and apparent nature, and sells the one in favor of which such continuous and apparent quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication.”

Swinney v. Haynes, 314 Ky. 600, 603-604, 236 S.W.2d 705, 707 (1951) (quoting Hedges v. Stucker, 237 Ky. 351, 35 S.W.2d 539, 540 (1931)).

The legal reasoning of our predecessors was not novel and remains in conformity with the general rule as cited in 25 Am. Jur.2d Basements and Licenses in Real Property § 93 (2004):

A person who purchases land with knowledge or with actual, constructive, or implied notice that it is burdened with an easement in favor of other property ordinarily takes the estate subject to the easement. On the other hand, a bona fide purchaser of land without knowledge or actual or constructive notice of the existence of an easement in such land generally takes title free from the burden of the easement. This rule is broad enough to include all easements, whether created by implication, prescription, or express grant. However, one who purchases land burdened with an open, visible easement is ordinarily charged with notice that he or she is purchasing a servient estate.
Under the general rule that a purchaser of land subject to the burden of an easement takes the estate subject to the easement if he or she has notice of its existence at the time of purchase, the proper recordation of the instrument containing the grant of the easement is sufficient notice.

The Dukes recognize the prevailing majority rule recited and admit in their brief to this Court that: “Up to 1994, it is clear that the Appellants (the Dukes) would have been bound by the restriction or easement recorded in a deed not in their chain of title.” However, the Dukes propose that the pivotal case that reversed the well-established property law cited is Oliver v. Schultz, 885 S.W.2d 699 (Ky. 1994). Thus, an analysis of that decision is warranted.

In Oliver, a common grantor placed restrictive covenants on four of nine parcels in a subdivision created from a single unrestricted tract. No subdivision plat was recorded. As a result, no restrictive covenant appeared in the chain of title to five of the nine tracts and no restriction was recorded regarding the five tracts deriving from the larger tract. The Court concluded it necessary to address the law in regard to restrictive covenants in view of confusion in the law as expressed in Judge Howerton’s concurring opinion in Bishop v. Rueff, 619 S.W.2d 718 (Ky.App.1981). Ultimately, the Court concluded that a restriction placed in a collateral chain of title cannot bind a subsequent grantee without actual notice of the restriction unless it is included in a subsequent recorded subdivision plat or deed of restrictions. Oliver, 885 S.W.2d at 701.

Although modifying existing Kentucky law, the Oliver court limited its holding to restrictive covenants and left unaltered the law as applicable to easements. It pointed out that those cases involving easements are truly applicable to the validity of a restrictive covenant purportedly established by an unrecorded instrument. Id. at 701. Although the Court gave little explanation as to the limitations imposed upon its holding, we believe its reasoning derives from deference to our recording statutes and a practical approach to the principles of property law.

Similarly, our approach is a pragmatic one. An easement is an interest in land protected by our recording statutes, which serve the purpose of protecting good faith purchasers against claims to the property of which they are not and could not have been reasonably aware, and to protect property owners from the wrongful conveyance of their property. As such, it is a fundamental rule that the grantor can grant only his interest in the property and is codified in KRS 381.150:

A deed and warranty of land purporting to pass or assure a greater right or estate than the person can lawfully pass or assure, shall operate to convey on warrant so much of the right and estate as such person can lawfully convey.

In the present case, a common grantor first conveyed lot 12 by a recorded deed that created an express easement over the property later conveyed to the Dukes. Thus, at the time the property was conveyed to the Dukes, an ordinary title search back to the common grantor of the larger tract would have revealed that lots 10 and 11 were encumbered by an easement in favor of lot 12.

Not only do our recording statutes mandate the result reached in this case, but to hold otherwise would leave the holders of easements subject to the whim of a common grantor who could defeat that interest by conveying the same interest to multiple grantees by omitting the easement from the deeds. We conclude that the general rule applicable to easements in this Commonwealth is that the recording of the instrument that grants an easement by a common grantor binds a subsequent purchaser of the tract burdened by the easement regardless of whether it is included in the purchaser’s deed.

Having held that a valid easement was created by the 1962 deed, the question remains whether there is merit to the Dukes’ contentions that it had been abandoned. The trial court found that the facts did not substantiate the Dukes’ claim, thus, our review is limited to whether the factual findings were clearly erroneous. “A factual finding is not clearly erroneous if it is supported by substantial evidence. Substantial evidence is evidence, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person.” Gosney, 163 S.W.3d at 898 (internal citations omitted).

Forfeiture of easements is not favored in the law and its mere nonuse without adverse possession is not sufficient to establish abandonment. When the easement is created by deed, it occurs “only where in connection with nonuser there is a denial of title, or act by an adverse party, or attendant facts and circumstances showing an intention on the part of the oumer of the easement to abandon it. (emphasis supplied).” City of Harrodsburg v. Cunningham, 299 Ky. 193, 198, 184 S.W.2d 357, 359 (1945) (quoting Johnson v. Clark, 57 S.W. 474, 475, 22 Ky. Law Rep. 418 (1900)). The rule was further explained in Schade v. Simpson, 295 Ky. 45, 173 S.W.2d 801, 803 (1943): “Adverse possession and use for the prescriptive period will terminate an easement, but, to be effective, adverse possession of a right of way by the servient owner must be of the same character required to obtain title to real estate and the use must be wholly inconsistent with the right to enjoy the easement and amount to an ouster of the dominant owner.”

There was ample evidence that Link did not abandon the easement and that he and his predecessors used the easement. There was testimony that since purchasing lot 12, Link used the easement to access the water and the front portion of his property. Link’s predecessors in title had used the easement that was visible since 1961. Additionally, the easement was visible and had been used by the Links and the Dukes from 1999 to 2006, when the Dukes first objected to its use and placed a gate to block its path. Indeed, until the recent controversy, there was no evidence that the Dukes asserted ownership of the easement or interfered with Link’s enjoyment of the easement. Having reviewed the evidence, we cannot say that the trial court’s findings of fact were clearly erroneous.

Based on the foregoing, the judgment of the Logan Circuit Court is affirmed.

ALL CONCUR.

      . The trial court stated the parties stipulated that "the deed representing the chain of title for each party's respective ownership which went back to the creation of the subdivision area in 1961. The existence of the easement in the chain of title was stipulated.” It is unclear whether the trial court erroneously found that the Dukes stipulated that the easement was contained in the Duke chain of title or if it properly applied the stipulation only to the Link chain of title. For reasons that will become apparent, even if an erroneous recitation of the parties' stipulation it has no effect on our resolution of the issue presented.

      . The trial court found as a matter of law that the easement description in Link's chain of title was sufficient for the existence of an express easement. Although a persuasive argument can be made that the easement exists by implication, such would be a factual finding. Because we agree with the trial court's finding as a matter of law, we do not discuss an easement by implication.

      . The Restatement (Third) of Property Servi-tudes § 7.14 (2000) recognizes that: “Kentucky has recently moved from following the majority to a modified-minority-rule position.” We caution that while accurate that Kentucky has modified its position in regard to restrictive covenants, we conclude that Kentucky adheres to the majority view in regard to easements.


author: PATRICIA BRECKENRIDGE, Judge.

text:
    ALL AMERICAN PAINTING, LLC, Consolidated Construction Group, Inc., Goodland Foods, Inc., and Titan Tube Fabricators, Inc., Appellants, v. FINANCIAL SOLUTIONS AND ASSOCIATES, INC., Respondent.
    No. SC 90275.
    Supreme Court of Missouri, En Banc.
    June 29, 2010.

      Alan S. Mandel and Michael J. Sude-kum, Schlueter, Mandel & Mandel LLC, St. Louis, Max G. Margulis, Margulis Law Group, Chesterfield, for appellants.
    Steven W. Koslovsky, Steven Koslovsky LLC, Maryland Heights, for respondent.
   PATRICIA BRECKENRIDGE, Judge.

All American Painting, LLC, Consolidated Construction Group, Inc., Goodland Foods, Inc., and Titan Tubes Fabricators, Inc., (plaintiffs) appeal from the judgment entered against them after a jury verdict in favor of Financial Solutions and Associates, Inc., on plaintiffs’ claims that Financial Solutions violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. Because the admitted facts entitled plaintiffs to judgment against Financial Solutions, the trial court erred in not granting plaintiffs a judgment notwithstanding the verdict after trial. Accordingly, the judgment is reversed, and the cause is remanded.

Factual and Procedural Background

Under the general standard of review for denial of a motion for judgment notwithstanding the verdict, the evidence is viewed in the light most favorable to the jury’s verdict. Dhyne v. State Farm Fire and Cas. Co., 188 S.W.3d 454, 456-57 (Mo. banc 2006). In that light, the facts of the case are as follows: In 2005, Financial Solutions entered into a contract with an advertising company, Activecore Technologies, Inc., to send facsimile advertisements on behalf of Financial Solutions. The purpose of the advertisements was to promote investment services sold by Financial Solutions. The advertisements at issue were sent by Activecore and received on facsimile machines or computers owned by the plaintiffs. The advertisements were directed to plaintiffs’ officers or employees and included the corporate or fictitious names of the plaintiffs. Financial Solutions did not seek permission from any of the recipients to send the advertisements. After receiving the advertisements, plaintiffs filed the present suit against Financial Solutions, claiming that Financial Solutions violated the TOPA. Plaintiffs’ petition sought statutory damages under the act as well as injunctive relief.

The case was tried to a jury. At trial, the president and chief executive officer of Financial Solutions, Michael Grimes, testified on behalf of his company. On direct examination by plaintiffs’ counsel, Mr. Grimes testified that Financial Solutions hired Activecore to send advertisements on its behalf. He stated that when he first discussed the possibility of having Active-core send advertisements by facsimile for Financial Solutions, he raised concerns about the legality of sending them. Ac-tivecore advised Mr. Grimes that it would include “opt-out” provisions at the bottom of each advertisement, which would allow recipients to remove themselves from the recipient list if they did not wish to receive future solicitations. Activecore assured Mr. Grimes that inclusion of such a provision would ensure compliance with the law. During direct examination, however, Mr. Grimes acknowledged that it would be impossible for a recipient to opt-out from receiving future advertisements without receiving at least one initial advertisement by facsimile.

Mr. Grimes farther testified that, when he was contacted by plaintiffs’ attorney after plaintiffs had received the unsolicited advertisements, he again sought assurances from Activecore concerning the legality of the advertisements. Activecore advised Mr. Grimes that it was a member of certain “organizations and associations” of which plaintiffs were also members and, therefore, Activecore had the right to send facsimiles to plaintiffs on an opt-out basis. Finally, Mr. Grimes testified that Financial Solutions did not seek or receive express invitation or permission from any of the plaintiffs to send the advertisements and that Financial Solutions did not have an established business relationship with any of the plaintiffs.

On cross-examination by Financial Solutions’ attorney, Mr. Grimes testified that Financial Solutions’ contract with Active-core stated that Financial Solutions had access to all of Activecore’s standardized industry classification (SIC) code marketing lists. He testified that Activecore explained to him that SIC code marketing lists were the associations and organizations that Activecore had joined, which enabled it to send e-mails and facsimiles to the plaintiffs.

After Mr. Grimes’ testimony, plaintiffs read into evidence stipulated facts that were admitted by the parties. It was admitted that the advertisements in evidence were true and accurate copies of those transmitted by Activecore on behalf of Financial Solutions and that, prior to sending the advertisements, Financial Solution never sought permission to send them from anyone employed by plaintiffs. It also was admitted that Financial Solutions entered into a contract with Activecore to send the advertisements on its behalf and that they were designed to generate business and advertise products sold by Financial Solutions. It further was admitted that Financial Solutions had no reason to believe the advertisements were not received by plaintiffs.

Thereafter, plaintiffs read into evidence deposition testimony of their corporate representatives. Each corporate representative testified that his company had received the advertisement in question. Three of the advertisements were received on facsimile machines, while two of the advertisements were received on a computer connected to a printer.

At the close of all of the evidence, plaintiffs moved for a directed verdict, which the trial court denied. At the instruction conference, plaintiffs’ counsel proffered verdict directors for each plaintiff. The trial court accepted verdict directors over Financial Solutions’ objection that the verdict directors did not posit all of the necessary elements to establish a violation under the TCPA. Financial Solutions did not articulate any specific element it claimed was omitted. Financial Solutions then proffered an affirmative converse instruction to each verdict director concerning whether Financial Solutions controlled the actions of Activecore, which the trial court refused. It did not proffer any affirmative defense instructions regarding “express invitation” or “express permission.”

The jury returned verdicts in favor of Financial Solutions and against plaintiffs. Plaintiffs then filed a timely motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial judge overruled the motion and entered judgment in accordance with the jury’s verdict. Plaintiffs appealed. After a decision by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10.

On appeal, plaintiffs claim the trial court erred in overruling their motion for judgment notwithstanding the verdict because Financial Solutions stipulated to all of the facts necessary for them to recover under the TCPA and it failed to prove any legally cognizable defense.

Plaintiffs were Entitled to Judgment Notwithstanding the Verdict

The TCPA makes it unlawful for any person “to send an unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(C). An “unsolicited advertisement” is defined under the act as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.” 47 U.S.C. § 227(a)(4). Therefore, a person or entity violates the TCPA by sending material advertising the commercial availability or quality of property, goods, or services to a facsimile machine without the recipient’s prior express invitation or permission.

The TCPA creates a private cause of action for any person or entity that receives an advertisement in violation of the act and provides for statutory damages in the amount of $500 for each violation as well as injunctive relief against future violations. 47 U.S.C. § 227(b)(3)(A)-(B). Additionally, the TCPA provides that treble damages may, in the court’s discretion, be assessed in cases where the defendant “willfully or knowingly” violates the act. 47 U.S.C. § 227(b)(3).

Plaintiffs assert that the trial court erred in overruling their motion for judgment notwithstanding the verdict because Financial Solutions admitted all of the facts necessary for them to recover under the TCPA and Financial Solutions failed to present any legally cognizable defense. Therefore, plaintiffs claim no facts remained to be submitted to the jury.

The standard of review for the denial of a judgment notwithstanding the verdict (JNOV) is essentially the same as review of the denial of a motion for directed verdict. Clevenger v. Oliver Ins. Agency, Inc., 237 S.W.3d 588, 590 (Mo. banc 2007). Parties bearing the burden of proof generally are not entitled to a directed verdict. Brandt v. Pelican, 856 S.W.2d 658, 664 (Mo. banc 1993). However, the plaintiff is entitled to a directed verdict in the unusual situation where the defendant has admitted in its pleadings, by counsel, or through the defendant’s individual testimony the basic facts of the plaintiffs case. Id. In such instances, the plaintiff is entitled to a directed verdict because there is no question of fact remaining for the jury to decide. Id.

In the present ease, the stipulated facts established all of the elements necessary to prove violations of the TCPA and entitle plaintiffs to relief under the act. Financial Solutions admitted that it entered into a contract with Activecore to send advertisements on its behalf and that those advertisements were designed to generate business and advertise products sold by Financial Solutions. Financial Solutions further stipulated that the advertisements were actually sent by facsimile and that it had no reason to believe the advertisements were not received by the plaintiffs in this case. Finally, it stipulated that the copies of the advertisements admitted into evidence were true and accurate copies of the advertisements sent.

It is a well-settled that stipulated facts must be accepted by the jury as conclusively proven. State v. Holt, 592 S.W.2d 759, 769 (Mo. banc 1980). “A stipulated fact is not for the consideration of the jury, and the jury may not decide such fact contrary to the parties’ stipulation.” 83 C.J.S. Stipulations § 93 (2000). Financial Solution’s stipulated facts, taken together, conclusively established all of the elements required to recover under the TCPA, and the jury was required to accept those facts as true.

Although all of the facts needed to recover under the TCPA were stipulated, Financial Solutions argues that a JNOV was nevertheless inappropriate because there were disputed issues of fact regarding whether plaintiffs received the advertisements at issue. Financial Solutions argues there was evidence to support a finding by the jury that the advertisements were not actually sent to the named plaintiffs because the headers on each of the facsimiles were addressed to individuals rather than to plaintiffs. In essence, Financial Solutions argues that the jury could have believed that plaintiffs were not the proper parties to bring suit because it was the named individuals, not plaintiffs, who suffered injury under the TCPA.

Whether plaintiffs were the proper parties is a question of standing, which is an issue of law the Court reviews de novo. Mo. State Med. Ass’n v. State, 256 S.W.3d 85, 87 (Mo. banc 2008). To have standing, the parties seeking relief must have “some legally protectable interest in the litigation.... ” Comm, for Educ. Equality v. State, 294 S.W.3d 477, 484 (Mo. banc 2009). In the present case, plaintiffs have a “legally protectable interest” as they are within the class of persons and entities intended to be protected by the TCPA and they suffered injury by receiving the unauthorized facsimiles. The legislative history of the TCPA shows that Congress was concerned about the costs imposed on the recipient of an unsolicited facsimile, including the cost associated with use of the machine and the cost of paper used to print the advertisements. Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162, 1166 n. 3 (S.D.Ind.1997); see also Phillips Randolph Enters., LLC v. Adler-Weiner Research Chicago, Inc., 526 F.Supp.2d 851, 852 (N.D.I11.2007) (“Congress’ primary purpose in enacting the TCPA was to prevent the shifting of advertising costs to recipients of unsolicited fax advertisements.... ”).

Here, plaintiffs owned the machines and computers on which the advertisements were received. Plaintiffs paid for the ink and paper that was consumed to print those advertisements. As such, plaintiffs were the parties damaged by the receipt of the unsolicited advertisements. The legislative history of the TCPA shows that the act was intended to protect against this type of harm. Therefore, the plaintiffs had standing to sue under the TCPA. Financial Solutions’ argument to the contrary is without merit.

Additionally, if the Court were to accept Financial Solutions’ argument that the name at the top of the header controls who has a cause of action under the TCPA, advertisers could circumvent the act and avoid liability completely by simply addressing every advertisement to “John Doe.” This Court presumes that Congress did not intend to enact an absurd law, incapable of being enforced. City of Joplin v. Joplin Water Works Co., 386 S.W.2d 369, 373-74 (Mo.1965).

For its final claim, Financial Solutions argues that a JNOV would have been inappropriate because Mr. Grimes’ testimony regarding Activecore’s joint membership in certain trade organizations with plaintiffs raised a factual issue as to whether plaintiffs had consented to receive the advertisements in question. Specifically, Financial Solutions argues that the jury could have inferred from Mr. Grimes’ testimony that plaintiffs gave prior express invitation or permission to Financial Solutions to send the advertisements. Financial Solutions further claims that it was plaintiffs’ burden under the TCPA to prove lack of prior express invitation or permission.

Contrary to Financial Solutions’ argument, plaintiffs did not have the burden to prove lack of prior express invitation or permission. Although the language of the TCPA does not specify which party has the burden of proof regarding prior express invitation or permission, the Federal Communications Commission (FCC) has interpreted the act as placing the burden to prove express invitation or permission on the sender of the advertisement, not the recipient. In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Junk Fax Prevention Act of 2005, 21 FCC Red. 3787, 3812 (2006) (“In the event a complaint is filed, the burden of proof rests on the sender to demonstrate that permission was given.”). This Court must accept the FCC’s interpretation, absent a federal court of appeals’ decision rejecting it. See 28 U.S.C. § 2342(1); Carnett’s, Inc. v. Hammond, 279 Ga. 125, 610 S.E.2d 529, 531 n. 18 (2005). No decision of a federal court of appeals invalidating the FCC’s ruling that the sender has the burden of proving prior express invitation or permission was cited by Financial Solutions or found by this Court. Accordingly, Financial Solutions had the burden of proving express invitation or permission; therefore, it had to present evidence to prove the defense and proffer an instruction on the defense. It did not do so.

At trial, the evidence presented by Financial Solutions was not sufficient to prove that the plaintiffs gave Activecore express invitation or permission to send the advertisements. The only evidence arguably indicating plaintiffs consented to receive the faxes was Mr. Grimes’ testimony regarding Activecore’s joint membership in certain trade organizations with plaintiffs. Mr. Grimes testified that as members of the same organizations, Ac-tivecore had access to membership lists containing plaintiffs’ facsimile numbers, which enabled Activecore to send advertisements to them. While the jury was entitled to believe that testimony, the evidence was not legally sufficient to allow the jury to reasonably infer that plaintiffs gave Financial Solutions prior express permission to send the facsimiles. At most, Mr. Grimes’ testimony suggested that Financial Solutions had plaintiffs’ implied permission to send the advertisements, which is insufficient under the TCPA. See Travel Travel, Kirkwood, Inc. v. Jen N.Y. Inc., 206 S.W.3d 387, 392-93 (Mo.App.2006) (sender’s membership in the same industry network as facsimile recipients was insufficient to show sender had express invitation or permission to send advertisements to recipients). Therefore, the jury could not reasonably infer that plaintiffs gave prior express invitation or permission on the basis of Mr. Grimes’ testimony.

Additionally, Financial Solutions failed to proffer a jury instruction on the affirmative defense of prior express invitation or permission. By failing to proffer a jury instruction on prior express invitation or permission, Financial Solutions waived the defense. See Kansas City v. Keene Corp., 855 S.W.2d 360, 367 (Mo. banc 1993); Mo. Dept, of Transp. ex 7-el. PR Developers, Inc. v. Safeco Ins. Co. of Am., 97 S.W.3d 21, 40 (Mo.App.2002). Therefore, plaintiffs were entitled to judgment in their favor.

Conclusion

All of the facts necessary to establish a claim under the TCPA were admitted by Financial Solutions. Plaintiffs had standing to bring the lawsuit because they suffered injuries by receiving unsolicited advertisements on their facsimile machines. Financial Solutions did not present sufficient evidence to allow the jury to reasonably infer it had plaintiffs’ prior express invitation or permission to send the advertisements. Moreover, Financial Solutions waived the defense of express invitation or permission by failing to proffer a jury instruction on that issue, so there was no question of fact remaining for the jury to decide. Accordingly, plaintiffs were entitled to a JNOV on their claims against Financial Solutions for violating the TCPA.

For the foregoing reasons, the judgment of the trial court is reversed, and the case is remanded.

All concur.

      . AH references to 47 U.S.C. § 227 are to the act as in effect in March 2005 when plaintiffs received the advertisements in question. 47 U.S.C. § 227 was materially amended in July 2005 by the Junk Fax Prevention Act of 2005. Pub.L. No. 109-21, 119 Slat. 359 (2005).

      . The TCPA is a federal act that prohibits the use of facsimile machines to send unsolicited commercial advertisements and provides for statutory damages to be paid by the violator to the persons or entities who received such advertisements in violation of the act. 47 U.S.C. § 227.

      . Because this error is dispositive, other errors raised by plaintiffs are not discussed.

      . The term "person” as used in the TCPA includes "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1 (2000); Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 909 n. 2 (Mo. banc 2002).

      . The headers read as follows: "To: RICK PHILLIPS ALL AMERICAN PAINTING CO"; "To: KEVIN FRANKLIN CONSOLIDATED CONSTRUCTION GRP”; "To: STEVEN BECKER LAZY SUSAN IMAGINATIVE CTRNG”; "To: DAVE MILL GATEWAY RACK.”

      . Although the FCC's order became effective in 2006, after the advertisements in this case were sent, the order specifically states, "Senders who claim they obtained a consumer's prior express invitation or permission to send them facsimile advertisements prior to the effective date of these rules will not be in compliance unless they can demonstrate that such authorization met all the requirements as adopted herein." Id.


author: CYNTHIA L. MARTIN, Judge.

text:
    Terrell E. DAWSON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70702.
    Missouri Court of Appeals, Western District.
    June 15, 2010.

      Edward Scott Thompson, St. Louis, MO, for appellant.
    Shaun J. Mackelprang and Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Terrell Dawson (“Dawson”) appeals from the motion court’s denial of his Rule 29.15 motion for post-conviction relief. Dawson was convicted of two counts of murder in the first degree, two counts of armed criminal action, one count of kidnapping, and one count of burglary in the first degree. On appeal, Dawson claims the motion court erred in denying his Rule 29.15 motion for post-conviction relief following an evidentiary hearing because he received ineffective assistance of counsel. Dawson contends that trial counsel failed to particularize the prejudice that would result if the trial court did not sever Dawson’s trial from that of co-defendant Ja-vonty Steward (“Steward”). Dawson also contends that trial counsel was ineffective because trial counsel failed to object to Kenderal Rogers’s (“Rogers”) invocation of his Fifth Amendment right to remain silent. Dawson maintains that trial counsel’s failure to object led the jury to infer that Dawson was guilty. We affirm.

Factual and Procedural History

On the night of April 24, 2004, Dei-trik Davis (“Davis”) along with Andre Golden (“Golden”) and Allyssa Zahner (“Zahner”) went to 51st and Wabash in Kansas City, Missouri to meet with Dawson. When Davis arrived, Dawson walked up to the car, pointed a gun at Davis’s head and ordered Golden and Zahner out of the car. Steward got into the driver’s seat of the car, Davis moved to the passenger seat, and Dawson and Rogers got into the back seat. Dawson, Steward, and Rogers were armed. Dawson directed Steward to drive to St. Joseph, Missouri, to look for J.R. Boyd (“Boyd”). Dawson was angry with Boyd because Boyd owed Dawson approximately $800. Dawson and Davis believed that Boyd’s girlfriend still lived in St. Joseph in a home on 3rd Street.

When the men arrived at the home on 3rd Street, Rogers lacked in the door. The men found Danny Watson, Jr. (“Watson”) and Dawn Thorton (“Thorton”) in a bedroom. Watson and Thorton had purchased the home in February 2004. The men realized that Watson and Thorton were not Boyd or Boyd’s girlfriend. Notwithstanding, Dawson ordered the other men to go look for money, while he held a gun on Watson and Thorton. When the other men returned without money, Dawson yelled at the couple and started hitting Watson in the face with the gun. Dawson instructed Steward to put a pillow over Thorton’s head and shoot her. Steward complied. He shot Thorton in the head two times. Watson was shot three times as he attempted to flee. It was unclear who shot Watson. Steward, Dawson, Rogers, and Davis then left the home and drove back to Kansas City.

The men went to an abandoned home where other Dawson acquaintances were holding Golden and Zahner. Dawson held Davis at gun point and told Davis he had to shoot Zahner. Davis refused. Eventually, Dawson told Davis, Golden, and Zah-ner they could leave once he and his companions were gone.

Dawson was charged on September 30, 2004 with two counts of first degree murder, section 565.020; two counts of armed criminal action, section 571.015; one count of kidnapping, section 565.110; and one count of burglary, section 569.160. Steward was similarly but separately charged.

On March 4, 2005, the prosecuting attorney filed a motion to join the trials of Dawson and Steward, stating that both cases involved the same set of facts and identical witnesses, and that a joint trial would be in the best interests of judicial economy. Dawson’s counsel objected to the motion. The motion was sustained.

On July 21, 2005, Dawson’s case was reassigned, and new lead trial counsel entered her appearance. Dawson’s trial counsel filed a motion to sever Dawson’s and Steward’s trials on August 26, 2005. The trial court advised trial counsel it had already considered the issue of joinder and that counsel would have to present new evidence on the issue to change the court’s mind. At the hearing on the motion to sever in early September 2005, trial counsel argued that Steward had notified the prosecutor that he would rely on the defense of an alibi. Trial counsel articulated concern that this created a prejudice in her ability to formulate a defense for Dawson. Trial counsel argued, by way of example, that should Dawson allege that he and Steward were both involved in the crime but that Dawson’s role was limited, Steward’s alibi defense would be clearly antagonistic, creating prejudice to each defendant.

The motion to sever was denied on September 9, 2005. The trial court’s order stated:

Defendant Dawson has failed to make any factual showing that his right to a fair trial will be prejudiced by the Court denying his motion to sever and instead order separate trials for each defendant. Defendant Dawson has merely claimed that he will be antagonistic to Defendant Steward in his testimony at trial. The allegation that he will be antagonistic toward the co-defendant does not establish that he will be prejudiced by being tried jointly with the co-defendant or show how a joint trial will prevent him from having a fair trial.

Trial began on October 13, 2005. The State told the jury in its opening statement that it would be calling Rogers to testify. The State told the jury that Rogers would tell them about the drive to St. Joseph and about what occurred at the victims’ home after the door was kicked open. Just before Rogers was to take the stand, Rogers advised the trial court out of the hearing of the jury that he intended to invoke his Fifth Amendment privilege. After questioning Rogers outside the presence of the jury and after lengthy discussions with counsel, the trial court permitted Rogers to take the stand to assert the Fifth Amendment for the limited purposes of allowing the State to explain to the jury why they would not be hearing testimony from Rogers as had been represented during opening.

The State presented multiple witnesses that placed Dawson and Steward at the scene of the crimes. One such witness was Davis, who saw the murders, and who was in the room when Dawson instructed Steward to shoot Thorton. The State also called a witness who testified that he had spoken with Dawson following the murders and that Dawson had told him that when they got to the home in St. Joseph he realized “they [the couple in the house] was the wrong people and they had to numb [shoot] them.”

Co-defendant Steward called several witnesses who testified that Steward was at a residence at 4233 Prospect, Kansas City, Missouri, on the night the crimes occurred. However, on cross examination the witnesses were impeached.

Dawson did not testify or call any witnesses at trial. On October 20, 2005, Dawson was convicted of two counts of first degree murder, each with a sentence of life without parole, two counts of armed criminal action, each with a sentence of 99 years, and of kidnapping and burglary, each with a sentence of fifteen years. All sentences were to be consecutively served.

Dawson’s conviction was affirmed on appeal on May 22, 2007. State v. Dawson, 222 S.W.3d 337 (Mo.App. W.D.2007).

On August 31, 2007, Dawson filed a pro se motion to set aside his convictions based on ineffective assistance of counsel. Counsel was appointed, and an amended Rule 29.15 motion was filed. However, Dawson’s counsel died shortly thereafter. New counsel was appointed, and a second amended Rule 29.15 motion was filed on September 3, 2008.

The trial court conducted an evidentiary hearing on Dawson’s motion on October 31, 2008. Dawson’s trial counsel did not have a clear recollection of the trial proceedings. Trial counsel testified generally that she believed that the joint trials prejudiced Dawson but could not specifically state why she believed he was prejudiced. Trial counsel testified that Steward’s alibi witnesses made a “poor attempt at the alibi [and made it look like] we’re [counsel for Dawson] putting on false evidence.” Trial counsel also testified that the alibi at trial did not go over well with the jury and that it went “belly up.” Trial counsel thus testified that Steward’s unbelievable alibi witnesses did not help Dawson’s case and that if the trial had been severed, those witnesses would not have testified in Dawson’s trial.

On January 15, 2009, Dawson’s Rule 29.15 motion for post-conviction relief was denied. This appeal follows.

Standard of Review

Appellate review of a motion court’s denial of a Rule 29.15 motion for post-conviction relief is limited to a determination of whether its findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Williams v. State, 205 S.W.3d BOO, 304 (Mo.App. W.D.2006). Findings of facts and conclusions of law are “ ‘clearly erroneous only if, after reviewing the entire record, we are left with a definite and firm impression that a mistake has been made.’ ” Id. at 305 (quoting Johnson v. State, 189 S.W.3d 640, 644 (Mo.App.2006)).

Analysis

In order to prevail on an ineffective assistance of counsel claim, Dawson must show by a preponderance of the evidence that: (1) trial counsel’s performance was deficient because she failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances; and (2) the deficient performance prejudiced Dawson. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). If either the performance prong or the prejudice prong is not met, then we need not consider the other, and Dawson’s claim of ineffective assistance of counsel must fail. Strickland, 466 U.S. at 687,104 S.Ct. 2052.

To satisfy the performance prong, Dawson must “identify trial counsel’s specific acts or omissions that were not in conformance with the range of competent representation, or that were the result of unreasonable professional judgment.” Williams, 205 S.W.3d at 305. To satisfy the performance prong, Dawson must overcome the presumption that any challenged action was sound trial strategy and that trial counsel rendered adequate assistance of counsel and made all significant decisions in the exercise of professional judgment. Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052. Trial strategy is judged by the “ ‘reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.’ ” Williams, 205 S.W.3d at 305 (quoting Johnson, 189 S.W.3d at 645).

In order to overcome the prejudice prong, Dawson must show a reasonable probability that, but for trial counsel’s alleged deficiencies, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “ ‘[Sjimply showing that the alleged error had a conceivable effect on the trial outcome is not sufficient; instead, the appellant must show that, absent the error, there is a reasonable probability that he would have been found not guilty.’ ” Williams, 205 S.W.3d at 305 (quoting Johnson, 189 S.W.3d at 645).

Point One

In Dawson’s first point on appeal, he contends that he received ineffective assistance of counsel because trial counsel failed to “particularize” the prejudice that would result if the trial court did not sever Dawson’s trial from that of co-defendant Steward.

Performance

Pursuant to Rule 24.06 and section 545.880, a separate trial is required when the defendant files a written motion requesting a separate trial and the trial court: (1) finds a probability of prejudice exists if the defendants are tried jointly, or (2) the defendant is subject to assessment of punishment by the jury and there is a probability of prejudice, or (3) there is material evidence not admissible against the defendant but would be admissible against the co-defendant if there is a separate trial, or (4) there is a statement that is not admissible against the defendant but is admissible against the co-defendant, or (5) a separate trial is required to make a fair determination of whether the defendant is guilty.

The motion court concluded in its Findings of Facts, Conclusions of Law and Judgment that:

There was no material evidence admitted against Mr. Dawson that would not have been admitted had there been a separate trial nor were there any statements admitted in the case that would not have been admitted against Dawson had a separate trial been ordered. Mr. Dawson’s co-defendant, Javonty Steward’s alibi defense, did not adversely affect movant’s assertion that his involvement in the crime was minimal. Mr. Dawson has failed to allege facts or provide evidence to show that he was entitled to severance of his case and was thereby prejudiced.

Dawson claims that there were facts available to trial counsel which were not presented to the trial court but which would have supported severance. However, the “additional” facts articulated in Dawson’s brief amount to nothing more than expanded argument on the point trial counsel raised in the motion to sever — that Steward’s intent to assert an alibi defense would prejudice Dawson. In ruling on the motion to sever, the trial court concluded that allegations of antagonistic defenses were not sufficient to overcome grounds supporting joinder. Dawson has offered us no explanation for how additional “particularizing” of the argument that Steward’s alibi defense would be antagonistic to Dawson’s defense would have overcome this conclusion. Dawson has not met his burden to demonstrate that trial counsel’s performance was deficient.

Prejudice

We also find that Dawson failed to sustain his burden to demonstrate prejudice. Dawson alleges that “[b]ut for counsel’s failure to formulate a defense and articulate reasons why the cases had to be severed, the outcome of the proceedings might have been different.” (Emphasis added.) This hypothetical assertion is insufficient to allege prejudice pursuant to Strickland. As previously noted, Dawson must assert and establish a reasonable probability that, but for trial counsel’s alleged deficiencies, the result of the proceeding would have been different. Strickland, 466 U.S. at 694,104 S.Ct. 2052.

Even if Dawson could be viewed as having correctly alleged the standard required to demonstrate prejudice, he would be unable to sustain his burden. Dawson cannot demonstrate that the motion to sever would have been granted but for his trial counsel’s allegedly deficient performance. Stated differently, Dawson cannot demonstrate, and has not argued, that it would have been an abuse of discretion for the trial court to deny Dawson’s motion to sever had trial counsel presented additional particularized support for the motion. State v. Davis, 825 S.W.2d 948, 953 (Mo. App. E.D.1992) (no prejudice unless defendant can show it would have been an abuse of discretion for trial court to deny motion to sever). The motion court expressly found that even if tidal counsel had made the additional arguments Dawson claims should have been advanced, the motion to sever would have been denied. Specifically, the motion court found that “[t]he fact that Steward presented an alibi defense did not diminish or refute the claim by movant he was minimally involved in the criminal acts. These defenses by Dawson were still viable regardless of the claim by Steward that he was not present at the scene of the crime.” We cannot conclude that the motion court’s findings in this regard were clearly erroneous.

In addition, though Dawson argues that Steward’s alibi prejudiced him because the “State argued Steward’s failed alibi implicated both men,” this argument ignores that other evidence in the case placed Dawson at the scene of the crimes. Based on the overwhelming evidence of Dawson’s guilt, it is not reasonable to conclude that but for counsel’s deficient performance in failing to particularize a basis for severance, Dawson would have been found not guilty. “Where ... there is overwhelming evidence of guilt, such that it cannot be reasonably said that, but for the challenged actions of trial counsel, the jury would have found the movant not guilty ... the movant suffers no prejudice .... ” Anderson v. State, 66 S.W.3d 770, 778 (Mo.App. W.D.2002).

Point One is denied.

Point Two

In Dawson’s second point on appeal, he argues that he received ineffective assistance of counsel because tidal counsel failed to object to Rogers’s assertion of his right to remain silent when called to testify. Dawson maintains that Rogers’s assertion of his right to remain silent led the jury to conclude that Dawson was also guilty because he did not testify. Dawson maintains that if trial counsel had properly objected the outcome of the trial would have been different.

Performance

Dawson claims that pursuant to State v. Wright, 582 S.W.2d 275 (Mo. banc 1979), a witness is not allowed to take the stand to take the Fifth Amendment, if allowing the witness to do so “let[s] the jury know the witness considers her conduct to have been criminal in nature so that the jury could infer the defendant is guilty.” Id. at 283. It is true that the State was not permitted to call Rogers to the stand merely to emphasize his refusal to testify. State v. Schaller, 937 S.W.2d 285, 289 (Mo.App. W.D.1996). However, Rogers’s was permitted to take the stand to assert his Fifth Amendment privilege if in so doing Rogers’s testimony served some other legitimate purpose. Id.

Before permitting Rogers to take the stand, the trial court, the State, and counsel for Steward and Dawson discussed the matter, at length, outside of the presence of the jury. Dawson’s counsel argued against Rogers’s being permitted to take the stand to plead the Fifth Amendment, arguing such testimony would create the impression Rogers had been threatened not to testify. The trial court considered the arguments of counsel and determined that it would permit the State to call Rogers to invoke his Fifth Amendment privileges in front of the jury for the limited purpose of explaining why the State would not be presenting evidence it had specifically discussed in its opening statement. However, the trial court ruled it would not permit the State to “set up” Rogers’s assertion of the right to remain silent by asking Rogers about his relationship with Dawson or Steward, his participation in the crimes, or any other questions which could lead the jury to infer that Rogers’s refusal to testify evidenced a consciousness of guilt that implicated Dawson and Steward. Thus, the State only asked Rogers whether he was a co-defendant, whereupon Rogers asserted his right to remain silent.

Dawson contends that trial counsel should have objected in the presence of the jury when Rogers actually took the stand. Dawson’s argument ignores that trial counsel’s objection to Rogers’s testimony during the side-bar with the trial court had already successfully narrowed the State’s right to inquire of Rogers about nothing more than a fact already obvious to the jury from other testimony— that Rogers was a co-defendant. We cannot conclude that trial counsel’s failure to object again once Rogers actually took the stand constituted ineffective assistance of counsel. “ ‘In arguing ineffectiveness, [Dawson] must overcome a strong presumption that counsel’s performance was sound trial strategy.’ ” Goudeau v. State, 152 S.W.3d 411, 418 (Mo.App. S.D.2005) (quoting State v. Clay, 975 S.W.2d 121,135 (Mo. banc 1998)). When judging whether counsel’s failure to object rises to the level of ineffective assistance of counsel it is necessary to consider that “ ‘[i]n many instances seasoned trial counsel do not object to otherwise improper questions or arguments for strategic purposes. It is feared that frequent objections irritate the jury and highlight the statements complained of, resulting in more harm than good.’ ” Id. (quoting Clay, 975 S.W.2d at 135).

Here, Dawson cannot overcome the presumption that trial counsel’s failure to object was anything other than reasonable trial strategy. Although trial counsel could not recall during her post-conviction hearing testimony whether a specific trial strategy influenced her decision not to object when Rogers actually took the stand, this lack of recollection alone does not overcome the presumption that her decision not to object was a reasonable trial strategy. An objection may have served to highlight a perceived connection between Rogers’s refusal to testify and Dawson’s guilt. Dawson has failed to demonstrate that trial counsel’s performance was deficient.

Prejudice

Dawson has also failed to demonstrate prejudice. Dawson has not alleged that an additional objection to Rogers’s testimony once he actually took the stand would have been sustained. Given the lengthy discussion about whether to permit Rogers to testify, and the constraint the trial court imposed on the State’s questioning of Rogers as a condition of permitting him to testify, it is highly unlikely that a re-asserted general objection to Rogers’s testimony would have been sustained. Trial counsel is not ineffective for failing to make a meaningless objection. Mitchem v. State, 250 S.W.3d 749, 755-56 (Mo.App. W.D.2008).

Point Two is denied.

Conclusion

The judgment of the trial court is affirmed.

All concur.

      . We view the facts in the light most favorable to the jury’s verdict. State v. O'Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993).

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

      . Dawson’s case was originally assigned to Bert Godding in the Buchanan County public defender’s office. However, Godding left the public defender's office and the case was reassigned to Michelle Davidson ("Davidson”). As Davidson had never tried a murder case before, the public defender’s office requested assistance from the Office of the State Public Defender. Mary Ellen Young (“Young”) was assigned to Dawson's case, and Davidson transferred all responsibilities in the case to Young. At the trial court’s request, Davidson stayed on as Young's assistant in the case. All references to Dawson’s trial counsel will be to Young unless otherwise indicated.

      . To the extent Dawson’s argument on appeal can be construed as an indictment of the trial court's ruling on the motion to sever, we will not afford review to such a claim. Griffin v. State, 794 S.W.2d 659, 661 (Mo. banc 1990) (claims of trial error are for review on direct appeal and are not properly raised in Rule 29.15 motions, which are limited to claims of ineffective assistance of counsel).

      . The argument portion of Dawson's brief asserts that trial counsel was ineffective for not participating in pre-trial discovery, as this prevented trial counsel from concreting a defense for Dawson. This issue will not be reviewed on appeal, as it is an issue wholly separate and independent from the issue of particularizing arguments in support of the motion to sever preserved in Dawson’s Point Relied On. Rule 84.04(e).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Melvin CLARK, Appellant.
    No. ED 92970.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 15, 2010.

      Nancy A. McKerrow, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Jamie P. Rasmussen, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Melvin Clark (hereinafter, “Appellant”) appeals from the trial court’s judgment after a jury convicted him of two counts of first degree statutory sodomy, Section 566.062 RSMo (2000) and one count of first degree statutory rape, Section 566.032 RSMo (2000). Appellant was sentenced as a persistent offender to twenty-five years’ imprisonment on each count, to run concurrently. In Appellant’s sole point on appeal, he claims the trial court plainly erred in failing to grant him a continuance to obtain private counsel of his choosing.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion, only for the use of the parties, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


author: PATRICIA L. COHEN, Judge.

text:
    Michael KNOBBE, Respondent, v. ARTCO CASKET COMPANY, INC., Appellant, and Division of Employment Security, Respondent.
    No. ED 93817.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 22, 2010.

      Michael L. Blumenthal, Kansas City, MO, for appellant.
    William E. Roussin, Clayton, MO, for Michael Knobbe.
    Shelly A. Kintzel, Jefferson City, MO, for Division of Employment Security.
   PATRICIA L. COHEN, Judge.

Introduction

Artco Casket Company, Inc. (Employer) appeals from the decision of the Labor and Industrial Relations Commission (Commission) reversing the Appeals Tribunal’s determination disqualifying Michael Knobbe (Claimant) from receiving unemployment compensation benefits. The Commission found that Claimant was eligible for benefits because he left his employment for good cause attributable to his work or employer. Employer contends that there was not competent and substantial evidence to support the Commission’s decision because the Commission ignored evidence and also disregarded uncontroverted testimony without making an express credibility determination. Employer further argues that Claimant failed to meet his burden to prove that he left his employment for good cause. We affirm.

Factual and Procedural Background

Employer sells and distributes caskets to funeral homes. Claimant worked as a service representative at Employer’s St. Louis distribution center beginning in May 1993. Tony Smith initially worked as a fellow service representative with Claimant, but Employer promoted Smith to assistant manager in June 2008. As assistant manager, Smith served as Claimant’s immediate supervisor.

On October 16, 2008, Claimant complained to Employer that on the previous day, Smith, while standing near a bathroom, told Claimant “man, I’m so tired I can’t even hold my dick up. Will you come and hold my dick?” Claimant filled out a report of the incident that was filed with Employer’s main office. Employer hired a consulting firm to investigate the claim. While the investigation was pending, Employer placed Claimant on administrative leave. Claimant returned to work on November 24, 2008. Despite Claimant’s complaints, Employer maintained Smith in his position as Claimant’s supervisor. Claimant worked on November 25 and then did not return to work. Employer then placed Claimant on medical leave until January 5, 2009, based on a note from Claimant’s doctor. Employer terminated Claimant on January 8, 2009.

Claimant filed a claim for unemployment compensation benefits. Employer countered with a protest claiming that Claimant was disqualified for benefits because he voluntarily quit without good cause. A deputy for the Missouri Division of Employment Security determined that Claimant had good cause to quit his employment because a coworker sexually harassed him. Employer filed an appeal from the deputy’s determination, and the Appeals Tribunal conducted a telephone hearing. At the hearing, Claimant testified on his own behalf. Three witnesses testified for Employer: Smith; Ron Davis, the manager of the distribution center; and Ann Molloy, the consultant who performed the investigation.

Claimant testified as follows: Smith frequently made sexual comments. Specifically, Smith rubbed the shoulders of another worker and said “you’re a pretty boy, ain’t you?” Smith grabbed his crotch and asked Claimant “How’s it feel to get your balls back?” when Claimant was discussing a pool table. Smith also asked Claimant to “fill my crack in,” an apparent reference to anal sex. Prior to the October incident, Claimant and other coworkers complained to Smith’s supervisors, including Davis, about Smith’s behavior, but Employer took no action against Smith. Claimant denied making any sexual jokes.

Claimant further testified that Davis initially responded to the October incident by telling Claimant that Smith’s behavior was “just Tony.” Employer also told him on multiple occasions that he needed to “get over” the incident. Claimant testified that the October incident seriously upset him and that he thought about it frequently. During Claimant’s leave, he sought assurances from Employer that he would not be required to work with Smith any longer. Claimant did not believe that Employer took any disciplinary action against Smith. Claimant declined to return to work because he did not want to be exposed to any more harassing behavior or retaliation.

Testifying for Employer, Smith denied Claimant’s allegations. Smith testified that Claimant, along with the other workers, frequently made jokes that were sexual in nature. Smith stated that Employer did not discipline him in connection with the October incident other than to ask him to sign a form acknowledging that he understood the sexual harassment policy and a form stating that he would refrain from making sexually-themed jokes. Smith also testified that Claimant became more sensitive following the death of his brother in June 2008.

Molloy testified regarding her investigation into Claimant’s complaint. She interviewed all employees at the distribution center and other employees at the home office. Molloy determined that everyone in the facility, including Claimant, had engaged in inappropriate sexual banter. Molloy confirmed that Smith had touched some employees but determined that it was not sexual in nature. Following her investigation, Molloy recommended that Employer review its sexual harassment policy with its employees and counsel Smith regarding his inappropriate behavior.

Davis testified that Employer implemented Molloy’s recommendations. However, Davis admitted that if Claimant had returned to his position, Smith would have continued to serve as his supervisor.

The Appeals Tribunal reversed the deputy’s determination and held that Claimant left his employment voluntarily without good cause. Claimant filed an Application for Review with the Commission. The Commission initially issued an order affirming the decision of the Appeals Tribunal. Claimant requested that the Commission reconsider its order. The Commission then set aside its order and reversed the Appeals Tribunal. The Commission determined that Claimant voluntarily left his work for good cause attributable to the work or employer. This appeal followed.

Standard of Review

This court may modify, reverse, remand or set aside the Commission’s decision when: (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was no sufficient competent evidence in the record to warrant the making of the award. Section 288.210 RSMo. (2000); Sartori v. Kohner Props., Inc., 277 S.W.3d 879, 882 (Mo.App. E.D. 2009).

We examine the whole record to determine if there is sufficient competent evidence to support the Commission’s decision. Sartori, 277 S.W.Bd at 883 (citing Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003)). The Commission’s findings of fact are conclusive if supported by competent and substantial evidence. Section 288.210; Sartori, 277 S.W.3d at 883. Although we defer to the Commission’s factual findings, we review de novo questions of law, including the application of the law to the facts, without deference to the Commission. Section 288.210; Partee v. Winco Mfg., Inc., 141 S.W.3d 34, 37 (Mo.App. E.D. 2004).

Discussion

1. Disregard of Employer’s Evidence

In its first point on appeal, Employer claims there was not competent and substantial evidence to support the award because the Commission disregarded both Davis’s and Molloy’s testimony. In addition, Employer argues that there was not competent and substantial evidence to support the Commission’s finding that “Employer took no substantive steps to deter Smith from continuing his established habits,” focusing primarily on a November 17, 2008 letter to Claimant.

When reviewing the record and the Commission’s findings, we do not “substitute our own judgment for that of the Commission’s regarding its evaluation of the evidence relative to its findings.” Scrivener Oil Co., Inc. v. Div. of Employment Sec., 184 S.W.3d 635, 638 (Mo.App. S.D.2006). We also defer to the Commission’s credibility determinations and determination of the weight to be given to evidence. Id. at 639. Finally, the Commission’s resolution of conflicting evidence is conclusive. Id.

Employer argues the Commission disregarded Davis’s testimony establishing that: Employer hired an independent investigator to investigate Claimant’s allegations; Employer implemented the investigator’s recommendations; and Claimant’s demeanor changed following the death of his brother. Contrary to Employer’s contention, the record establishes that the Commission considered Davis’s testimony. The record also establishes that the Commission did not give Davis’s testimony the weight that Employer argues the testimony deserved. We defer to the Commission’s determination of the weight given to evidence. Scrivener Oil Co., 184 S.W.3d at 639.

Employer also claims that Davis’s testimony established that Claimant had made sexual jokes in the workplace. Employer and Claimant presented conflicting evidence about whether Claimant had engaged in sexual banter at work. The Commission resolved the conflict in favor of Claimant. Where, as here, the evidence supports two opposite conclusions, we are bound by the Commission’s resolution of conflicting evidence. Ewing v. SSM Health Care, 265 S.W.3d 882, 887 (Mo.App. E.D.2008).

With respect to Molloy’s testimony, Employer argues that the Commission could not disregard it without expressly finding Molloy not credible. Although the Commission did not specifically describe Mol-loy’s testimony as not credible, such a conclusion is implicit in its finding: “[s]ince we have no evidence of who (other than claimant) was interviewed or what they specifically told the investigator, we give no weight to the findings of that firm.” Moreover, while we agree that undisputed or unimpeached evidence cannot be disregarded unless an administrative agency makes a specific finding that such evidence is “incredible or unworthy of belief’, here Claimant contradicted Molloy’s testimony as to the severity of the incident and the allegations that Claimant had also made sexual jokes. Lagud v. Kansas City Mo. Bd. of Police Comm’rs, 272 S.W.3d 285, 292 (Mo.App. W.D.2008).

Last, Employer contends that the Commission erred in finding that “Employer took no substantive steps to deter Smith from continuing his established habits.” Employer claims this finding was error because the Commission ignored the November 17 letter. As to the letter, the Commission’s findings expressly addressed it. The Commission quoted the letter and noted that it “never specifically addressed the October 15 incident.” Point denied.

2. Good Cause

In its second point on appeal, Employer claims that Claimant failed to meet his burden to prove that he left his work for good cause. Specifically, Employer argues that the work environment would not induce a reasonably prudent person to leave his employment. Employer also contends that Claimant did not exercise good faith because he terminated his employment before Employer could resolve Claimant’s complaint.

Section 288.050 disqualifies a claimant from receiving unemployment compensation benefits if “the claimant left work voluntarily without good cause attributable to such work or to the claimant’s employer.” Section 288.050.1(1) RSMo. (Supp.2006). “Whether a claimant’s reason for leaving his employment constituted good cause is a legal issue on which we do not defer to the Commission’s determination.” PaHee, 141 S.W.3d at 38. Good cause does not have a fixed or precise meaning. Id. Instead, good cause depends on an objective analysis of the particular facts of each case. Ewing, 265 S.W.3d at 888. The claimant bears the burden of demonstrating good cause for the voluntary departure and must establish two elements, reasonableness and good faith. Id.; Miller v. Bank of the West, 264 S.W.3d 673, 678 (Mo.App. W.D.2008).

With respect to the “reasonableness” element, a claimant must demonstrate that the circumstances of the claimant’s employment would cause a reasonable person to terminate the employment rather than continue working. Id. “Good cause is a standard of reason applied to the average person, not to the su-persensitive.” PaHee, 141 S.W.3d at 38. The circumstances constituting good cause “must be real, not imaginary, substantial, not trifling, and reasonable, not whimsical.... ” Hessler v. Labor & Indus. Relations Comm’n, 851 S.W.2d 516, 518 (Mo. banc 1993) (internal citation omitted). Abusive conduct or language by a supervisor can constitute good cause. PaHee, 141 S.W.3d at 38; S'pringfield Grocer Co., Inc. v. SaHin, 49 S.W.3d 817, 821 (Mo.App. S.D.2001); Streitz v. Juneau, 940 S.W.2d 548, 551 (Mo.App. S.D.1997).

The record supports a determination that Claimant established the “reasonableness” element of “good cause.” Claimant testified that his supervisor, Smith, frequently made sexual jokes. Claimant identified specific instances of Smith’s inappropriate conduct. Claimant testified that Smith had rubbed another worker’s shoulders and said “you’re a pretty boy, ain’t you?” Claimant further testified that Smith had previously grabbed his crotch and asked Claimant “[blow’s it feel to get your balls back?” Claimant also made a reference to anal sex to Claimant. Finally, Claimant testified that Smith asked Claimant, “Man, I’m so tired I can’t even hold my dick up. Will you come and hold my dick?” This testimony provides sufficient competent evidence to support the Commission’s conclusion that the circumstances would cause a reasonable person to terminate his or her employment.

Employer cites Ryan v. Motor Technologies Group for the proposition that Claimant’s testimony was insufficient to show circumstances that would cause a reasonable person to quit. 180 S.W.3d 94, 98 (Mo.App. S.D.2005). However, unlike in Ryan, Claimant has specifically identified and provided details of the incidents that caused him to quit. In Ryan, the claimant complained that her supervisor had used “vulgar language” on two prior occasions, but there was “a lack of detail as to specific incidents.” Id. Here, Claimant detailed specific incidents where Smith made sexually vulgar comments and gestures.

The record also supports a determination that Claimant established the “good faith” element of “good cause.” To establish “good faith,” a claimant must demonstrate that he made an effort “to resolve the dispute before resorting to the drastic remedy of quitting his job.” Par-tee, 141 S.W.3d at 38. A complaint to the employer about the issue before the claimant quits “is a strong indicator of good faith.” Baby-Tenda Corp. v. Hedrick, 50 S.W.3d 369, 374-75 (Mo.App. W.D.2001). Management’s failure to address prior complaints further supports a finding of good faith in attempting to resolve the current dispute. See Rodriguez v. Oseo Drug, 166 S.W.3d 138, 143 (Mo.App. W.D. 2005) (noting that good faith does not require an employee complaint if the employer has failed to address previous complaints).

Here, it is undisputed that Claimant attempted to resolve the issue before he terminated his employment. Prior to the October incident, Claimant asked Smith to stop making inappropriate comments and reported Smith’s behavior and comments to Employer. Despite the complaints, Claimant testified that Employer did not stop Smith’s inappropriate behavior. Employer’s failure to address past concerns about Smith’s behavior supports the determination that Claimant exercised good faith prior to leaving. See Rodriguez, 166 S.W.3d at 143. Following the October incident, Claimant reported his complaints regarding Smith’s conduct to the manager of the distribution center and filed a report with Employer’s main office. Claimant’s filing of multiple complaints prior to quitting is a strong indication that he exercised good faith in attempting to resolve the issue. Baby-Tenda Corp., 50 S.W.3d at 375.

Employer contends that Claimant failed to exercise good faith because he quit without providing Employer an opportunity to resolve his most recent complaint. In particular, Employer claims that it adjusted Claimant’s work schedule to ensure that Smith was not the only manager present when Claimant worked. Employer also required Smith to sign forms acknowledging Employer’s sexual harassment policy and that Smith would refrain from making sexual comments. However, Employer argues that Claimant quit before these changes could resolve his complaint.

In Springfield Grocer, the court addressed facts similar to those here. 49 S.W.3d at 821. There, the employer offered to have the claimant report directly to the grocery store’s director of operations rather than the former supervisor who had verbally harassed the claimant. Id. The claimant declined the offer and quit. Id. The Commission found that the claimant had good cause to terminate her employment. Id. at 819-20. The court affirmed the Commission, concluding that the claimant had exercised good faith because claimant was not required to continue to work in close proximity to her harasser. Id. Here, Employer expected Claimant to continue to work with Smith as his immediate supervisor despite Smith’s conduct. As in Springfield Grocer, Claimant’s refusal to continue to work as Smith’s subordinate is not inconsistent with an exercise of good faith in terminating his employment. Point denied.

Conclusion

The Commission’s decision is affirmed.

SHERRI B. SULLIVAN, P.J., and ROBERT G. DOWD, JR., J., Concur.

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

      . In a subpoint, Employer claims that the Commission erroneously found that Employer did not "undertake appropriate remedial measures.” The Commission did not explicitly make such a finding. However, to the extent Employer considers "substantive steps to deter Smith” and "appropriate remedial measures” to be equivalent concepts, we address Employer's concerns below.