Opinion
No. 58204
Filed: December 12, 2000
APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY, MISSOURI, HONORABLE WILLIAM E. TURNAGE, SENIOR JUDGE.
Vincent F. Igoe, Jr., and Michael S. Shipley Liberty, MO for Appellants,
John R. Shank, Jr. Kansas City, MO for Respondent.
Before: Smith, P.J., and Ulrich and Ellis, JJ.
Ellis, J., dissents in separate opinion.
Chouteau Auto Mart, Inc. (Chouteau), and Northland Acceptance Corp. (Northland) appeal the summary judgment of the circuit court for the respondent, First Bank of Missouri (First Bank), on their claims for damages under the Uniform Fiduciaries Law (UFL), §§ 456.240- 456.350. The appellants' claims arose out of several banking transactions between Janice Thompson, a former employee of the appellants, and respondent. The appellants maintained a number of checking accounts at the respondent bank on which Thompson, as an officer, was authorized to draw checks. From July of 1993 to October of 1995, she wrote numerous checks, which were made payable to the respondent with directions to deposit the proceeds therefrom in one of her two personal accounts at the respondent bank, in violation of the fiduciary duty she owed to the appellants.
All statutory references are to RSMo 1994, unless otherwise indicated.
The appellants raise what they denominate as one point on appeal. They claim that the trial court erred in granting the respondent's motion for summary judgment and denying theirs because, on the stipulated and undisputed facts, they, not the respondent, were entitled to judgment as a matter of law on their UFL claims.
We affirm.
Facts
The appellants are Missouri corporations in good standing. Thompson was an officer and fiduciary of both who was authorized to draw checks on their business checking accounts at the respondent bank. Thompson also maintained two personal accounts at the bank.
From July of 1993 until October of 1995, Thompson wrote numerous checks drawn on the appellants' accounts, which were made payable to the respondent or its predecessor, First Bank of Gladstone, as payee, for deposit in Thompson's personal accounts. Thompson, however, was not authorized by either Chouteau or Northland to deposit the checks into her personal accounts and, in so doing, breached her fiduciary duty to the appellants.
In their first amended petition, the appellants sued both Thompson and the respondent seeking, inter alia, damages for their losses as a result of Thompson's breach of her fiduciary duty. The appellants alleged three alternative theories of recovery: (1) conversion; (2) "money had and received"; and (3) "breach" of the UFL. Their claims as to Thompson were subsequently dismissed. As to the respondent, the first two theories of recovery were disposed of by partial summary judgments for the respondent, which were not appealed.
In the appellants' first amended petition, two other plaintiffs were joined. Their claims were subsequently dismissed.
As to their claims pled under the UFL, the appellants alleged in their petition that Thompson, as an officer, breached her fiduciary obligation to them by drawing numerous checks on their business accounts for her personal benefit. Pursuant to the respondent's motion for summary judgment with respect to the appellants' UFL claims, the parties entered into a stipulation of facts. They stipulated, inter alia, that Thompson had drawn 87 checks on the appellants' accounts at the bank, which were made payable to the respondent and deposited at her direction in her two personal accounts at the respondent bank. The parties also stipulated that "[n]one of the Checks . . . were delivered by Thompson to Bank in payment of or as security for a personal debt of Thompson with Bank." The stipulation further provided:
14. That Bank, at the time the Checks were deposited by Thompson to the Thompson Account and the Janey Bear Account, had no actual knowledge that Thompson was not authorized to deposit the Checks in the Thompson Account or the Janey Bear Account. By entering into this stipulation, Plaintiffs are not waiving their right to argue or assert that these transactions were known by Bank to be for the personal benefit of Thompson, that the facts known to Bank afforded it constructive notice that Thompson was not so authorized, or that Bank accepted the deposit with knowledge of such facts that its action in accepting the instruments amounted to bad faith.
15. That Bank, at the time the Checks were deposited by Thompson to the Thompson Account and the Janey Bear Account, had no actual knowledge that Thompson was breaching or intending to breach her fiduciary duty to Chouteau or Northland. By entering into this stipulation, Plaintiffs are not waiving their right to argue or assert that these transactions were known by Bank to be for the personal benefit of Thompson, that the facts known to Bank afforded it constructive notice that Thompson was not so authorized, or that Bank accepted the deposit with knowledge of such facts that its action in accepting the instruments amounted to bad faith.
The respondent alleged in its motion for summary judgment that § 456.310 of the UFL provided it with a complete defense to the appellants' claims. In this regard, the respondent contended that under that section they were required to show that the respondent had actual knowledge of Thompson's breach of her fiduciary duty to the appellants, or that it had knowledge of such facts that its action in taking the checks for deposit amounted to bad faith, which the appellants had already stipulated was not the case. In their response to the respondent's motion, the appellants alleged that § 456.310 did not preclude their recovery under § 456.270 of the UFL, which, based on the stipulated facts, applied such that the respondent was not entitled to summary judgment on their claims. In addition, the appellants filed a motion for summary judgment on their UFL claims against the respondent alleging that, based on the stipulated facts, § 456.270 applied entitling them to judgment as a matter of law.
On January 13, 2000, the trial court overruled the appellants' motion for summary judgment on their UFL claims, while sustaining the respondent's. Accordingly, the trial court entered judgment in favor of the respondent on the appellants' claims.
This appeal follows.
Standard of Review
Appellate review of the trial court's ruling on a motion for summary judgment
. . . is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.
ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993) (citations omitted). Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact; and (2) the movant is entitled to judgment as a matter of law. Id . at 377.
When considering appeals from summary judgments, the [c]ourt will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.
Id . at 376 (citations omitted).
I.
The appellants raise what they denominate as one point on appeal. They claim that the trial court erred in granting the respondent's motion for summary judgment and denying theirs because, on the stipulated and undisputed facts, they, not the respondent, were entitled to judgment as a matter of law on their claims for "breach" of the UFL. As to that portion of their claim that the trial court erred in denying their motion for summary judgment, the appellants recognize that as a general proposition appellate review will not lie. See Farmers Ins. Co. v. McFarland , 976 S.W.2d 559, 566 (Mo.App. 1998). However, they contend that special circumstances exist here such that if we find that the trial court erred in granting the respondent's motion for summary judgment, we should review and reverse the court's denial of their motion, and enter judgment for them under Rule 84.14. Necessarily then, before addressing the merits of the appellants' claim that the trial court erred in denying their motion for summary judgment, we must address their claim that the court erred in granting the respondent's motion.
All rule references are to the Missouri Rules of Civil Procedure (2000), unless otherwise indicated.
Rule 84.14 reads:
The appellate court shall award a new trial or partial new trial, reverse or affirm the judgment or order of the trial court, or give such judgment as the court ought to give. Unless justice otherwise requires, the court shall dispose finally of the case. No new trial shall be ordered as to issues in which no error appears.
To be entitled to summary judgment under Rule 74.04, the respondent, as the movant, was required to show that: (1) there was no genuine dispute as to the material facts on which it relied for summary judgment; and (2) on these undisputed facts, they were entitled to judgment as a matter of law. Rule 74.04(c)(1); Super v. White , 18 S.W.3d 511, 515 (Mo.App. 2000) ( citing ITT Commercial Fin. Corp. , 854 S.W.2d at 380-81; Rhodelander v. Liberty Christian Fellowship , 6 S.W.3d 402, 405 (Mo.App. 1999)).
If the movant for summary judgment is a defending party, as in the present case, a prima facie case for summary judgment may be established by one or more of the following means: (1) showing undisputed facts that negate any one of the claimants' required proof elements; (2) showing that the claimants, after an adequate period of discovery, have not produced and would not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimants' required proof elements; or (3) showing that there is no genuine dispute as to the existence of each of the facts necessary to support an affirmative defense properly pleaded by the movant.
Super , 18 S.W.3d at 515 ( citing ITT Commercial Fin. Corp. , 854 S.W.2d at 381 ). "Regardless of which of these three means is employed by the 'defending party,' each establishes a right to judgment as a matter of law. Where the facts underlying this right to judgment are beyond dispute, summary judgment is proper." Id .
As noted in the facts, the appellants pled their claims on three alternative theories of recovery: (1) conversion; (2) "money had and received"; and (3) the UFL. Pursuant to Rule 74.04(d), the trial court entered partial summary judgment in favor of the respondent on the appellants' claims pled under the first two theories, which the appellants do not appeal. Thus, on appeal, the only question is whether the trial court was correct in granting summary judgment to the respondent on the appellants' claims pled under the UFL.
In its motion for summary judgment, the respondent alleged that under the undisputed facts, as stipulated to by the parties, it could not be liable to the appellants for breach of the UFL for Thompson's deposit into her personal accounts of the proceeds from the checks drawn by her on the appellants' accounts. Specifically, it alleged that to recover on their claims, the appellants were required, pursuant to § 456.310 of the UFL, to prove, inter alia, that the respondent had "actual knowledge that [Thompson was] committing a breach of [her] obligation as fiduciary in making such deposit or in drawing such check, or . . . [had] knowledge of such facts that its action in receiving the deposit or paying the check amount[ed] to bad faith," which they could not do. Respondent contended that the appellants could not prove actual knowledge or bad faith in that they had already stipulated that the "Bank, at the time the Checks were deposited by Thompson . . . had no actual knowledge that Thompson was not authorized to deposit the Checks," and the "Bank, at the time the Checks were deposited by Thompson . . . had no actual knowledge that Thompson was breaching or intending to breach her fiduciary duty to Chouteau or Northland." Thus, the respondent employed the first means available to a defending party for obtaining summary judgment, alleging undisputed facts that negated a requisite element of the appellants' claims under the UFL. Super , 18 S.W.3d at 515 .
The appellants concede that given the stipulation of the parties, they could not recover on their UFL claims applying the standard of liability imposed by § 456.310, which, when considered alone, would justify the circuit court's award of summary judgment to the respondent. However, they contend that § 456.310 should not be read to the exclusion of § 456.270, under which they contend they were entitled to recovery on the stipulated and undisputed facts.
Section 456.270 governs checks drawn by a fiduciary on the principal's account and payable to a third person. Unlike § 456.310, § 456.270, as to a payee, does not require for recovery a showing that the person to whom the checks were made payable had actual knowledge of a breach by the fiduciary, or knowledge of such facts that its action amounted to bad faith, but only that the "payee" on the checks had knowledge that the checks drawn and delivered for deposit were for the personal benefit of the fiduciary. In this respect, the stipulation of the parties expressly provided that the appellants were not precluded from arguing at trial that the transactions in question "were known by Bank to be for the personal benefit of Thompson."
If, in fact, we find that § 456.270 did apply or could have applied on the facts stipulated to by the parties and/or the facts still in dispute such that the respondent was or could be held liable thereunder, then we would be required to reverse the summary judgment for the respondent in that summary judgment for a defendant is not proper, unless the defendant can establish a case for summary judgment on each theory pled by the plaintiff for recovery. Guffey v. Integrated Health Serv. of Kansas City at Alpine N. , 1 S.W.3d 509, 517 (Mo.App. 1999) (citations omitted). This is so in that to constitute a final and appealable judgment subject to appellate review, the judgment must dispose of an entire claim, not simply one theory of the claim. Century Fin. Servs. Group, Ltd. v. Roche , 896 S.W.2d 743, 744 (Mo.App. 1995). Summary judgment as to less than the whole case is a partial summary judgment that disposes of an issue or issues, but not the entire case so as to deny the non-movant the right to trial on the remaining issues. Rule 74.04(d).
In their first amended petition, the appellants in Count I, as to plaintiff Chouteau, and Count IV, as to plaintiff Northland, did not specify the section of the UFL on which they were basing their claims for breach of the UFL. Rather, they generally alleged a breach of the UFL. In reviewing their petition, however, it appears, as they assert on appeal, that they alleged liability not only under the standard of § 456.310, but the standard of § 456.270 as well. Thus, the appellants assert, and rightfully so, that the respondent was not entitled to full summary judgment on their claims, unless it demonstrated that § 456.270 did not apply and that they were not entitled to recover thereunder. Inasmuch as there is no dispute on appeal that the respondent was entitled to summary judgment on the appellants' claims for breach of the UFL if the standard of § 456.310 is applied, the only issue for us to decide is whether, on the facts stipulated and still in dispute, the appellants could make a case for recovery under § 456.270. If so, then the trial court erred in granting the respondent summary judgment on the appellants' UFL claims. Thus, in deciding this appeal we necessarily must interpret both § 456.270 and § 456.310.
In interpreting statutes, our purpose is to ascertain the intent of the legislature. State ex rel. Riordan v. Dierker , 956 S.W.2d 258, 260 (Mo. banc 1997). In doing so, we look to the language used, giving it its plain and ordinary meaning. Id. When a word used in a statute is not defined therein, it is appropriate to derive its plain and ordinary meaning from a dictionary. Am. Healthcare Mgmt., Inc. v. Dir. of Revenue , 984 S.W.2d 496, 498 (Mo. banc 1999). The courts are without authority to read into a statute a legislative intent which is contrary to the intent made evident by giving the language employed in the statute its plain and ordinary meaning. Kearney Special Rd. Dist. v. County of Clay , 863 S.W.2d 841, 842 (Mo. banc 1993). When the legislative intent cannot be ascertained from the language of the statute, by giving it its plain and ordinary meaning, the statute is considered ambiguous and only then can the rules of statutory construction be applied. Bosworth v. Sewell , 918 S.W.2d 773, 777 (Mo. banc 1996).
In contending that § 456.270 has no application in the instant case so as to allow the appellants to recover thereunder, the respondent argues that § 456.310 should be read as providing the exclusive standard for holding a depository bank liable for any and all deposits made by a fiduciary to his or her personal account from funds of the principal. In this regard, § 456.310 provides, in pertinent part:
If a fiduciary makes a deposit in a bank to his personal credit of checks drawn by him upon an account in his own name as fiduciary, or of checks payable to him as fiduciary, or of checks drawn by him upon an account in the name of his principal if he is empowered to draw checks thereon, or of checks payable to his principal and endorsed by him, if he is empowered to endorse such checks, or if he otherwise makes a deposit of funds held by him as fiduciary, the bank receiving such deposit is not bound to inquire whether the fiduciary is committing thereby a breach of his obligation as fiduciary; . . .
(Emphasis added.) The respondent contends that the italicized language should be read as applying to any and all deposits, including deposits made by a fiduciary to his or her personal account by writing a check drawn on the principal's account and made payable to the depository bank, as payee. Giving the language in question its plain and ordinary meaning, we would agree. We read "otherwise" in the statute, as defined in the dictionary as "in another manner; differently," to include any means of deposit, including the deposits made by Thompson. Webster's New World College DICTIONARY 959 (3d ed. 1997). This is in keeping with the purpose of the UFL to relieve the depository bank of the common law duty of insuring that fiduciary funds are properly applied, and instead holding the depository bank liable only when it has actual knowledge that the fiduciary is committing a breach or has knowledge of such facts that its actions in receiving the deposit amount to bad faith. Trenton Trust Co. v. Western Sur. Co. , 599 S.W.2d 481, 490-91 (Mo. banc 1980). Hence, read alone, § 456.310 would work to deny recovery to the appellants on their UFL claims, justifying summary judgment to the respondent thereon, unless on the stipulated and/or facts still in dispute the appellants could make a case under § 456.270, as they contend.
Section 456. 270 provides:
If a check or other bill of exchange is drawn by a fiduciary as such, or in the name of his principal by a fiduciary empowered to draw such instrument in the name of his principal, the payee is not bound to inquire whether the fiduciary is committing a breach of his obligation as fiduciary in drawing or delivering the instrument, and is not chargeable with notice that the fiduciary is committing a breach of his obligation as fiduciary unless he takes the instrument with actual knowledge of such breach or with knowledge of such facts that this action in taking the instrument amounts to bad faith. If, however, such instrument is payable to a personal creditor of the fiduciary and delivered to the creditor in payment of or as security for a personal debt of the fiduciary to the actual knowledge of the creditor, or is drawn and delivered in any transaction known by the payee to be for the personal benefit of the fiduciary, the creditor or other payee is liable to the principal if the fiduciary in fact commits a breach of his obligation as fiduciary in drawing or delivering the instrument.
On appeal, the appellants contend that on the stipulated facts of the parties, they were entitled to recover against the respondent under this section in that they demonstrated that the checks in question were drawn and delivered in transactions known by the respondent, as payee, to be for the personal benefit of the fiduciary, Thompson, in that the checks were deposited, at her direction, in her personal checking accounts at the respondent bank. In this regard, although the respondent would concede that there is no question that Thompson breached her "obligation" as a fiduciary to the appellants, it contends that a payee/depository bank covered by § 456.310 is not a "payee" within the meaning of § 456.270, as the appellants were required to show to establish liability thereunder. We agree.
The term "payee," as it appears in § 456.270, is not defined therein or in § 456.240, which is the definitional section for the UFL. As such, we are to give "payee" its plain and ordinary meaning with help, as needed, from the dictionary. Am. Healthcare , 984 S.W.2d at 498 . In addition to relying on the dictionary to define "payee," we can also look to other legislative or judicial meanings which have been attached to the term. See Boyd v. State Bd. of Registration for the Healing Arts , 916 S.W.2d 311, 315 (Mo.App. 1995) ( citing Citizens Elec. Corp. v. Dir. of the Dep't of Revenue , 766 S.W.2d 450, 452 (Mo. banc 1989)) (holding that "[w]hen the legislature enacts a statute referring to terms which have had other legislative or judicial meanings attached to them, the legislature is presumed to have acted with knowledge of these meanings").
Our research discloses that the term "payee" is not defined in the Uniform Commercial Code (UCC) and has not been previously defined in any related context. Thus, we turn to the dictionary for guidance. Black's Law Dictionary 1150 (7th ed. 1999) defines "payee" as "[o]ne to whom money is paid or payable; esp., a party named in commercial paper as the recipient of the payment." This definition would logically include the party to whom a check is made payable, in our case the respondent bank. Thus, inasmuch as the scope of the term's application is in no way limited by § 456.270, the section would appear, on its face, to be applicable where a bank is the payee, even if it was made a payee for the sole purpose of effectuating a deposit from the principal's account to the fiduciary's personal account. However, in our view, such an interpretation of § 456.270 would leave it in conflict with § 456.310 in that it would essentially negate the "defense" provided banks by § 456.310, when its role in the transaction in question was, as a practical matter, limited to a depository bank.
"Statutory provisions relating to the same subject matter are considered in pari materia. . . ." EBG Health Care III, Inc. v. Mo. Health Facilities Review Comm. , 12 S.W.3d 354, 360 (Mo.App. 2000) (citation omitted). We are required to "interpret and apply statutory provisions with reference to each other in order to determine legislative intent. . . ." Phillips v. Am. Motorist Ins. Co. , 996 S.W.2d 584, 587 n. 3 (Mo.App. 1999) (citation omitted); see also Board v. Eurostyle, Inc. , 998 S.W.2d 810, 814 (Mo.App. 1999). "This court presumes that statutes in pari materia are intended to be read consistently and harmoniously." EBG Health Care , 12 S.W.3d at 360 (citation omitted). Thus, where two statutes concerning the same subject matter are unambiguous when read individually but conflict when read together, we will attempt to harmonize them and give effect to both. Riordan , 956 S.W.2d at 260; Wells v. Mo. Prop. Ins. Placement Facility , 653 S.W.2d 207, 213 (Mo. banc 1983). However, if they cannot be reconciled, the more specific will control over the more general. Greenbriar Hills Country Club v. Dir. of Revenue , 935 S.W.2d 36, 38 (Mo. banc 1996).
In our view, it is possible to harmonize the two conflicting statutes. To harmonize them, for purposes of determining liability under the UFL for a breach of a fiduciary obligation, we interpret § 456.310 as applying to a depository bank and § 456.270 as applying to a payee other than a payee/depository bank covered by § 456.310. This would have the effect of preserving the legislature's intent to hold a depository bank liable only where it receives a deposit or pays a check with actual knowledge that the fiduciary is committing a breach of his or her obligation to the principal, or with knowledge of such facts that its action amounts to bad faith, while recognizing that a bank could still be liable under § 456.270 if, as payee, it was not also a depository bank. Thus, in our case, § 456.270 would have no application such that the trial court was correct in granting summary judgment to the respondent pursuant to § 456.310.
Point denied.
Having decided that the court did not err in granting the respondent's motion for summary judgment, we necessarily do not address the appellants' claim that the trial court erred in denying their motion for summary judgment.
Conclusion
The trial court's summary judgment for the respondent on the appellants' claims for damages for a breach of the UFL is affirmed.
I respectfully dissent. I agree with the majority's analysis up to and including the point where it concludes that § 456.270 in no way limits the definition of the word "payee," and therefore that statutory provision is "applicable where a bank is the payee, even if it was made a payee for the sole purpose of effectuating a deposit from the principal's account to the fiduciary's personal account." Maj. Op. at 12 . But I cannot concur in the majority's assertion that "such an interpretation of § 456.270 would leave it in conflict with § 456.310," Id ., and its subsequent holding, totally contrary to the clear language of the statutes, that "§ 456.310 as [applies] to a depository bank and § 456.270 as [applies] to a payee other than a payee/depository bank covered by § 456.310." Id . at 13.
All statutory references are to RSMo (1994) unless otherwise indicated.
Sections 456.270 and 456.310, as written and adopted by the legislature, are clear and unambiguous. Nor is there any conflict between them. Section 456.310 generally provides that a depository bank has no duty to inquire whether a fiduciary is breaching an obligation as a fiduciary when the fiduciary " makes a deposit in a bank to his personal credit " (1) "of checks drawn by him upon an account in his own name as fiduciary," or (2) "of checks payable to him as fiduciary," or (3) "of checks drawn by him upon an account in the name of his principal if he is empowered to draw checks thereon," or (4) of checks payable to his principal and endorsed by him, if he is empowered to endorse such checks," or (5) "if he otherwise makes a deposit of funds held by him as fiduciary."
A review of the five instances where a depository bank is relieved of its common law duty to see that fiduciary funds are properly applied, instantly reveals that the statute was not intended to, and does not, relieve banks of that duty under all circumstances. The legislature spelled out one of those non-covered instances in § 456.270 when it provided that payees of checks drawn by a fiduciary in transactions known by the payee to be for the personal benefit of the fiduciary are "liable to the principal if the fiduciary in fact commits a breach of his obligation as fiduciary in drawing or delivering the instrument." § 456.270. The legislature could have excluded banks and other financial institutions from liability under § 456.270 if it had wished. But it did not. The legislature, as is its right and duty, for whatever reason, viewed incidents involving payees as more fraught with danger of wrong doing and therefore applied a different standard to those transactions. Contrary to the majority's assertion, this decision did not create a conflict between §§ 456.270 and 456.310, but rather represents a legislative determination to treat some transactions differently from others.
The legislative power of the State of Missouri is vested in the General Assembly. Mo. Const. Art. III, § 1 . "And, unless otherwise restricted by the state constitution, this power 'is unlimited and practically absolute.'" Opponents of Prison Site, Inc. v. Carnahan , 994 S.W.2d 573, 577 (Mo.App.W.D. 1999) ( quoting State ex rel. Farmers' Elec. Co-op., Inc. v. State Environmental Improvement Authority. , 518 S.W.2d 68, 72 (Mo.banc 1975)). The Judiciary's duty, on the other hand, is not to write or re-write statutes. Rather, our function and duty when interpreting statutory language is to give effect to the intent of the Legislature. State v. Harris , 705 S.W.2d 544, 548 (Mo.App.E.D. 1986). We ascertain that intent from the language used in the statute. State ex rel. Baumruk v. Belt , 964 S.W.2d 443, 446 (Mo.banc 1998); State v. Moriarty , 914 S.W.2d 416, 422-23 (Mo.App.W.D. 1996).
In this case, the language used in §§ 456.270 and 456.310 is clear and unambiguous, and when the two statutes are read together, the language and the legislative intent remain clear and unambiguous. Thus, I cannot agree with the majority's decision to judicially amend § 456.270 so that it applies to any case involving a payee " other than a payee/depository bank covered by § 456.310 ." Maj. Op. at 13 (Emphasis added).
For these reasons, I would reverse the trial court's grant of summary judgment in favor of Respondent.