author: ROBERT G. DOWD, JR., Judge.

text:
    Antonio WASHINGTON, Respondent, v. Cynthia JONES, et al., Appellants.
    No. ED 84221.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 26, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 5, 2005.
    Application for Transfer Denied March 1, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Kathryn M. Burns, Asst. Atty. General, Amanda A. Couch, Asst. Atty. General, St. Louis, MO, for appellant.

      Alan W. Cohen, Clayton, MO, for respondent.
   ROBERT G. DOWD, JR., Judge.

Cynthia Jones (Mother) and the State of Missouri, Department of Social Services, Family Support Division (Division) appeal from the judgment of attorney’s fees in favor of Antonio Washington (Father) pursuant to Section 536.087, RSMo 2000. Mother and the Division argue the trial court erred in awarding attorney fees to Father because (1) he did not qualify for a fee award under Section 536.087 and (2) the award of fees in excess of the statutory minimum absent a “special factor” finding violated Section 536.085. We affirm and remand in part.

Mother and Father were divorced on July 6, 1992. The trial court entered a judgment of dissolution of marriage. Pursuant to the judgment, Mother and Father were awarded joint legal custody and Mother was awarded primary physical custody of the two minor children of the marriage. Pursuant to the judgment, Father was ordered to pay child support to Mother in the amount of $420 per month for both children.

In 1997, the Division initiated an administrative procedure to modify the dissolution judgment pursuant to Section 454.496. In support of its motion for modification, the Division created a proposed Form 14 calculation, listing Father’s income at $3,096 per month and finding that Father’s presumed child support pursuant to Rule 88.01 was $771 per month. During a pre-hearing conference, the parties, represented by counsel, entered into an agreement whereby Father would pay to Mother the sum of $600 per month for child support. In the order of July 30, 1997, the hearing officer made a specific finding the child support guidelines were “unjust and inappropriate,” as the parties had reached a settlement agreement that met the financial needs of the children. The hearing officer then entered an order modifying the original court order of July 6, 1992 to reflect Father’s new child support payment of $600 per month. On October 17, 1997, an order and judgment approving administrative modification order entered pursuant to Section 454.496 was issued by the Circuit Court of the City of St. Louis.

On March 14, 2002, the Division initiated the instant action pursuant to Section 454.496.1, again seeking modification of the judgment. The Division’s sole ground for modification was that application of the guidelines according to Rule 88.01 resulted in a 20 percent or more increase in the child support amount. Attached to the Motion was a Form 14 calculation listing Father’s monthly income as $4,033, with a presumed child support calculation of $808 per month.

On February 5, 2003, the hearing officer held a telephone hearing. Father filed a motion to dismiss. Prior to testimony, Father presented his legal argument in support of his Motion to Dismiss. During the hearing, the hearing officer elicited testimony regarding the parties’ incomes and expenses included in the Form 14 calculation. When the hearing officer asked what had changed since the prior judgment, Mother stated that there were increased expenses because the children were teenagers.

On March 17, 2003, the hearing officer issued an administrative order seeking to modify the prior judgment of the court increasing Father’s child support obligation from $600 per month to $879 per month effective September 1, 2002. In the order, the hearing officer found that the Division had not made a prima facie case for modification. Nevertheless, the hearing officer found “there has been a substantial and continuing change of circumstances” because the children “are older and their needs are more expensive, thus making the present terms of the order unreasonable.”

Father filed a timely petition for review of the Division action in the Circuit Court of the City of St. Louis alleging the Division decision was not supported in law or in fact. The Division, by and through its counsel, filed a motion to approve the agency order as part of the same proceeding. The parties entered into a consent order setting forth a briefing schedule. Father filed a motion to dismiss motion to approve. The Division filed a motion to dismiss its motion to approve the administrative order as well as the underlying administrative motion to modify. The trial court granted the motion to dismiss. Subsequently, the trial court dismissed Father’s petition for review of the agency action as moot.

Father filed a motion for attorney’s fees pursuant to Section 536.087. Father attached an affidavit of Father’s attorney stating his billing rate of $150 per hour and attached his billing statement setting out a billing rate of $150 per hour. The Division filed a motion in opposition claiming the trial court lacked jurisdiction to award the fees because it had filed its voluntary motion to dismiss, and the trial court had ordered all costs to be waived. The trial court entered its judgment in favor of Father, awarding him $3,265.00 in attorney’s fees.

Thereafter, the Division filed a motion for rehearing, alleging the trial court committed reversible error because the original matter was not an “agency proceeding” as defined in Section 536.085. It further argued that Father was not a prevailing party and that he committed misconduct preventing him from obtaining such a fee award. The trial court entered its judgment overruling the Division’s motion for rehearing. This appeal follows.

In its first point, Mother and the Division argue the trial court erred in awarding attorney’s fees to Father because he did not qualify for a fee award under Section 536.087. Specifically, Mother and the Division contend (a) the underlying administrative hearing was not an agency proceeding or civil action arising therefrom because the Division was not represented by an attorney, (b) Father was not a prevailing party, and (c) the position of the agency was substantially justified both in its original motion and in its subsequent motion to approve the agency order. We disagree.

We will affirm a judgment for attorney’s fees pursuant to Section 536.087 unless the award, or the calculation of the amount of the award, was arbitrary and capricious, was unreasonable, was unsupported by competent and substantial evidence, was made contrary to law, or was made in excess of the court’s jurisdiction. McMahan v. Mo. Dept. of Social Services, 980 S.W.2d 120, 124 (Mo.App. E.D.1998). Review of the trial court’s determination of law is de novo. State ex. rel. Pulliam v. Reine, 108 S.W.3d 148, 153 (Mo.App. W.D.2003). In reviewing the trial court’s judgment, we review the trial court and agency record and consider the evidence in the light most favorable to the judgment. Id.

Section 536.087.1 authorizes a trial court to award a judgment for attorney’s fees for “[a] party who prevails in an agency proceeding or civil action arising therefrom, brought by or against the division.” “Agency proceeding” is defined as “an adversary proceeding in a contested case ... in which the state is represented by counsel.” Section 536.085(1). When an agency initiates an administrative action, and the agency subsequently appears by counsel in a circuit court proceeding to defend its action, it is an “agency proceeding” as defined under the statute. State, Div. of Child Support Enforcement v. Grimes, 998 S.W.2d 807, 810 (Mo.App. E.D.1999).

In its brief, the Division argues that the instant proceeding was not an agency proceeding under the statute because the agency was not represented by counsel in the original administrative proceeding. We find Grimes instructive on this point. In Grimes, the agency initiated an administrative action that resulted in an administrative hearing, and the agency prevailed at the administrative level. Id. at 808. The petitioner in Grimes subsequently filed a motion in the form of a petition for review seeking judicial review of the agency action. Id. Legal counsel appeared on behalf of the agency and represented the agency to the conclusion of the proceedings. Id. at 809. The court in Grimes determined that an “agency proceeding” included one that began as an administrative proceeding in which the agency was not represented by counsel if there was a subsequent circuit court proceeding that arose out of the agency proceeding where the agency was so represented. Id. at 810.

In this case, as in Grimes, the Division initiated an administrative action that resulted in an administrative hearing, and the Division prevailed at the administrative level. As in Grimes, Father here subsequently filed a motion in the form of a petition for review seeking judicial review of the agency action. As in Grimes, the Division of Legal Services, and later the Attorney General appeared on behalf of the State and represented the Division to the conclusion of the proceedings. Therefore, as in Grimes, in the case at bar, the civil proceeding arose out of the agency action and was thus an “agency proceeding” pursuant to Section 536.085(1).

Next, the Division argues the dismissal of its motion to approve and the eventual dismissal of the petition for review as moot prevents Father from being a prevailing party under the statutory scheme. Under Section 536.085(3), a party “prevails” when it obtains “a favorable order, decision, judgment, or dismissal in a civil action or agency proceeding.” To “prevail,” however, is not limited to a favorable judgment following a trial on the merits; it may also include obtaining a settlement, obtaining a voluntary dismissal of a groundless complaint, or obtaining a favorable decision on a single issue if the issue is one of significance to the underlying case. Greenbriar Hills Country Club v. Dir. of Revenue, 47 S.W.3d 346, 353 (Mo. banc 2001). The intent of the statute is' “to require agencies to carefully scrutinize agency and court proceedings and to increase accountability of the administrative agencies.” Id. The statutory definition of “prevails” includes a civil proceeding that arises out of a prior administrative proceeding that results in the correction or modification of the agency decision. Grimes, 998 S.W.2d at 810.

Here, Father was a prevailing party. The end result of the court proceedings was that Father’s child support obligations remained at $600 per month, and were not increased to $879 per month as the Division requested when it initiated the administrative proceeding. Therefore, Father obtained a favorable result under the definition of Section 536.085(3) and he is the prevailing party in this litigation.

The Division also asserts that its position was substantially justified. Father argues the Division failed to preserve the issue of substantial justification under Section 536.087 for review. We agree with Father. The case here is analogous to that in McMahan v. Missouri Dept. of Social Services., Div. of Child Support Enforcement, 980 S.W.2d 120, 126 (Mo.App. E.D.1998). The division in McMahan attempted to raise the issue for the first time on appeal that the matter did not qualify as an “agency proceeding” pursuant to Section 536.087. Id. at 126. In that case, the court permitted review of the issue of substantial justification because it was affirmatively asserted in the division’s answer to the fee application. Id at n. 5. However, the court refused to decide the issue of whether the underlying matter was an “agency proceeding” as defined under the statute because the Division did not raise the issue at the trial court level, and thus failed to preserve the issue for appeal. Id at 126-127.

Here, after Father filed his brief with the trial court pursuant to the briefing schedule, the Division failed to file a brief, and instead filed a voluntary dismissal. After the dismissal was granted, Father then filed a motion for attorney fees pursuant to Section 536.087. In response, the Division filed a motion in opposition claiming the trial court lacked jurisdiction to award the fees because it had filed its voluntary motion to dismiss, and the trial court had ordered all costs to be waived. It did not raise any other issue at this time including the issue of substantial justification, nor did it present any evidence to the trial court that its position was substantially justified.

On January 21, 2004, the trial court entered its judgment awarding attorney’s fees. In that judgment, the trial court overruled the Division’s objection that, at the time the trial court entered its order, attorney’s fees was not before it and thus Father was prevented from requesting attorney’s fees. Thereafter, the Division filed a motion for rehearing, arguing the trial court committed reversible error because the original matter was not an “agency proceeding” as defined in Section 536.085(1). It further argued in its motion that Father was not a prevailing party and that Father committed misconduct that would prevent him from obtaining such a fee award. Nowhere in the motion did the Division raise the issue that its position was substantially justified.

Since the Division presented no evidence and failed to raise the issue that its position was substantially justified pursuant to Section 536.087, it failed to meet its burden of proof. Greenbriar, 47 S.W.3d at 354. Therefore, the Division failed to preserve this issue for appeal. McMahan, 980 S.W.2d at 126. The trial court’s award of attorney’s fees is not contrary to law. Point denied.

In its second point, the Division argues the trial court erred in awarding attorney’s fees of $150 per hour to Father because the trial court neither made a finding of a special factor nor had before it evidence supporting such a finding. We agree.

Initially we address Father’s argument that the Division failed to properly preserve the issue as to the hourly rate being in excess of the statutory rate or the lack of a finding of a “special factor” pursuant to Section 536.085. Section 536.085(4) provides:

“Reasonable fees and expenses” includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project which is found by the court or agency to be necessary for the preparation of the party’s case, and reasonable attorney or agent fees. The amount of fees awarded as reasonable fees and expenses shall be based upon prevailing market rates for the kind and quality of the services furnished, except that no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the state in the type of civil action or agency proceeding, and attorney fees shall not be awarded in excess of seventy-five dollars per hour unless the court determines that a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.
[Emphasis added.]

The Division does not bear the burden of proving the absence of a special factor; instead, the party requesting an award of attorney fees must present competent and substantial evidence to support the claim. Smith v. White, 114 S.W.3d 407, 420 (Mo.App.W.D.2003)(ciimp Reding v. Reding, 836 S.W.2d 37, 41 (Mo.App. S.D.1992)). In addition, the decision of a court or an agency on the application for reasonable fees and expenses shall be in writing, separate from the judgment or order of the court or the administrative decision that determined the prevailing party, and shall include written findings and conclusions and the reason or basis thereof. McMahan, 980 S.W.2d at 124. The amount of fees awarded as reasonable fees and expenses shall be based upon prevailing market rates for the kind and quality of the services. Id at 127. Section 536.085(4) expressly allows fee awards in excess of $75 per hour when the court determines that a “special factor, such as the limited availability of qualified attorneys” justifies a higher fee. Id. The statute requires that the trial court make a finding of a “special factor.” Id.

Here, Father was the party requesting an award of fees. In his affidavit, Father’s attorney stated his billing rate was $150.00 per hour, and the attached attorney fee statement detailed a total of 23.6 hours expended. Neither the motion for attorney fees, nor the affidavit by Father’s attorney, nor the attorney fee statement adduced or alleged a special factor warranting a fee in excess of the statutory maximum.

The need for an express finding of a special factor was emphasized in McMahan. McMahan, 980 S.W.2d at 127. There, the court held an award of attorney’s fees of $100.00 per hour did not comply with the statutory directive that such decisions be in writing and include written findings and conclusions and the reasons or basis thereof. Id. The McMahan reversed and remanded the trial court’s fee award, stating “[t]he trial court upon remand must address in its written findings and conclusions whether it deems that a ‘special factor’ exists which justifies a fee award in this case in excess of $75 per hour, and if so, why.” Id.

Here, while the trial court made a written finding as to why it granted Father’s motion for attorney’s fees, it did not address whether a “special factor” existed, or why a fee award in excess of the statutory maximum was justified. Therefore, we remand this matter to the trial court to make a determination of whether there is a “special factor” that justifies an award at $150 per hour.

The judgment of the trial court awarding attorney’s fees to Father is affirmed. The case, however, is remanded for the trial court.to make a determination as to the correct amount pursuant to Section 536.085.

PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE, J., concur.

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

      . Respondent’s motion for attorney fees for filing a frivolous appeal taken with the case is denied.

      .On August 28, 2003, Missouri law changed to prohibit the Division from administratively modifying a prior judicial order. (Mo.H.613, 92nd Leg., 1st Sess (Mo.2003)(enacted)(hereinafter "House Bill 613”)).

      . Unlike Grimes, however, the Attorney General here, appearing as attorney for the Division, subsequently filed a motion to approve the administrative order pursuant to Section 454.496 in the same proceeding,


source: Caselaw Access Project

license: Public Domain

text:
    TGB, INC. and Stephen Tielke, Appellants, v. CITY OF ST. LOUIS BOARD OF BUILDING APPEALS and City of St. Louis Board of Examiners for Sprinkler System Contractors, Respondents.
    No. ED 84188.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 26, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 5,2005.
    Application for Transfer Denied March 1, 2005.

      Elkin L. Kistner, St. Louis, MO, for appellant.
    Patricia A. Hageman, City Counselor, Edward J. Hanlon, Asst. City Counselor, St. Louis, MO, for respondent.
   ROBERT G. DOWD, JR., Judge.

TGB, Inc. (TGB) and Stephen Tielke (Tielke) appeal from the trial court’s judgment affirming the decision of the City of St. Louis Board of Building Appeals (Board) which denied Tielke’s application to sit for the Journeyman Sprinkler Fitter Examination. On appeal, TGB and Tielke argue the trial court erred in affirming the decision of the Board because Section P-24.7 of the St. Louis Plumbing Code is unconstitutional as applied to TGB and Tielke. We affirm.

Tielke works at TGB, a general contractor that also performs sprinkler fitter work. Tielke has been a journeyman sprinkler fitter licensed by St. Louis County since approximately January 2002 and has performed sprinkler fitter work for the state and federal governments. Tielke completed a five-year in-house apprenticeship program prior to applying for the St. Louis City sprinkler fitter examination. On December 6, 2002, the City of St. Louis Board of Examiners for Sprinkler System Contractors (Examiners) rejected Tielke’s application to take the Journeyman Sprinkler Fitter Examination. The rejection was based on the fact Tielke had not served a five year apprenticeship as a sprinkler fitter in a Department of Labor approved sprinkler fitter apprenticeship program under the direct supervision of a licensed journeyman sprinkler fitter. Tielke appealed that determination to the Board, which affirmed the decision of the Examiners denying his application to take the examination. The Board ruled that Tielke had not met the requirements of the St. Louis Plumbing Code, Ordinance No. 60826 (Ordinance), Sections P-24.7.1 and P-24.7.2. Section P-24.7.1 states in part:

JOURNEYMAN SPRINKLER SYSTEM: Journeyman Sprinkler Fitters shall have served a five (5) year apprenticeship before they are eligible to apply for a journeyman examination. The examination shall be given by the Board of Examiners.... Upon qualifying, the journeyman will be issued a journeyman license for a three (3) year period, for a fee of ten dollars ($10.00).

Section P-24.7.2 states:

APPRENTICE SPRINKLER FITTERS: Apprentice Sprinkler Fitters shall serve a five (5) year apprenticeship under the direct personal and immediate supervision of a licensed journeyman sprinkler fitter. The apprentice shall register with the plumbing Section and pay a five dollar ($5.00) registration free. The apprentice will be issued an apprenticeship certificate with “apprentice” plainly marked on it, the apprentice’s name and date of issue. Upon completion of the five (5) year training period, the apprentice may make application for the journeyman examination.

TGB and Tielke sought review of the Board’s decision in the Circuit Court of the City of St. Louis by filing their original petition for review. They later filed an amended petition in which they alleged that Section P-24.7 of the Ordinance violates both the due process clauses of the United States and Missouri Constitutions. The trial court rendered its decision affirming the Board’s decision and rejecting the petitioners’ constitutional claims. The trial court held:

Sprinkler fittings are a part of a buildings (sic) fire protection and therefore the correct installation of same are a matter of public health, safety, and welfare. The Court further finds that Petitioners’ constitutional claims to be without merit and are hereby denied. Petitioners’ (sic) have failed to prove by competent and substantial evidence Mr. Tielke’s qualifications to take the examination.

This appeal follows.

In their sole point on appeal, TGB and Tielke argue the trial court erred in affirming the decision of the Board because Section P-24.7 of the St. Louis Plumbing Code is unconstitutional based on violations of the due process clauses of the Missouri and United States Constitutions, as well as violations of the Commerce Clause and Privilege and Immunities Clause of the United States Constitution.

Normally, we review the findings of the administrative agency, not that of the Circuit Court, and we decide questions of law de novo. City of Cabool v. Missouri. State Bd. of Mediation, 689 S.W.2d 51, 53-54 (Mo. banc 1985). However, TGB and Tielke do not challenge the administrative agency’s determination that he did not possess the qualifications required by Section P-24.7. Rather, they challenge the validity of Section P-24.7 itself.

Initially, we address whether the constitutional issues were properly preserved for review. The City of St. Louis (City), Board, and Examiners argue the constitutional issues were not properly preserved.

The constitutionality of an ordinance is within the permissible scope of judicial review of an administrative decision. Section 536.140.2(1), RSMo 2000; Bezayiff v. City of St. Louis, 963 S.W.2d 225, 230 (Mo.App. E.D.1997). However, there are four mandatory prerequisites to preserving a constitutional issue for review after an administrative decision. The party challenging the constitutionality of an ordinance or a statute must: 1) raise the question at the first opportunity; 2) designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the article and section or by quotation of the provision itself; 3) state facts showing such violation; and 4) preserve the constitutional question throughout for appellate review. Bezayiff, 963 S.W.2d at 230. Constitutional arguments that are not asserted in a petition for review to the circuit court are not preserved for appeal. Callier v. Director of Revenue, State of Mo., 780 S.W.2d 639, 641 (Mo. banc 1989).

Here, while the due process arguments were first raised in the amended petition, the Commerce Clause and Privileges and Immunities Clause arguments were not raised until this appeal. The amended petition only discusses violations of the Due Process Clauses of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Missouri Constitution. A party must designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the article and section or by quotation of the provision itself in order to raise properly a constitutional question. Bezayiff, 963 S.W.2d at 230. TGB and Tielke faded to specifically invoke either the Commerce Clause or the Privileges and Immunities Clause in their amended petition. Only in TGB’s and Tielke’s appellate brief are the arguments based on either of these clauses first introduced. TGB’s and Tielke’s claims associated with the Commerce Clause and the Privileges and Immunities Clause were never raised before the trial court and therefore appellate review is not proper here. Id.

While TGB and Tielke properly raised them due process arguments in their amended petition, their claims still fail. The Due Process Clause is broad in application and “permits great latitude” to a city to regulate professions. Missouri Dental Bd. v. Alexander, 628 S.W.2d 646, 650 (Mo. banc 1982). This is especially true where the general nature of the business is such that, unless regulated, many people may be exposed to hazards against which the legislature can properly protect them. ABC Liquidators, Inc. v. Kansas City, 322 S.W.2d 876, 883 (Mo. banc 1959). The test used to decide the validity of a state’s police power is one of reasonableness. Missouri Dental Bd., 628 S.W.2d at 650. “The exercise of police power will be upheld if any state of facts either known or which could be reasonably assumed afford support for it.” Id. (quoting Caesar’s Health Club v. St. Louis County, 565 S.W.2d 783, 786 (Mo.App.1978)). Ordinances regulating plumbing and the licensing of plumbers have been found to fall within a city’s legitimate exercise of police power in the area of public health and safety. Eastern Missouri Laborers’ Dist. Council v. City of St. Louis, 5 S.W.3d 600, 604 (Mo.App. E.D.1999)(City could require private contractors to secure plumbing permit before installing public water mains and requirement did not violate due process or equal protection).

Section P-24.7, though not specifically pertaining to plumbing, is within the St. Louis Plumbing Code; therefore, the sprinkler fitter occupation is technically part of the plumbing business. Sprinkler fittings are an integral part of a budding’s fire protection. Thus, the City has an interest in maintaining a standard of fire safety in order to protect its residents. It is reasonable for the City to have certain testing and licensing measures in place to ensure that all people working in this field adhere to the same standards. We find Section P-24.7 is not unconstitutional.

Judgment affirmed.

PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE, J., concur.

      . Respondents argue that because constitutional arguments must be pleaded at the first available opportunity, TGB and Tielke should have raised their constitutional arguments in their original petition. We disagree. Whenever a claim or defense asserted in an amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. Boyer v. City of Potosi, 38 S.W.3d 430 (Mo.App. E.D.2000); Rule 55.33(c).


author: PER CURIAM.

text:
    KIENSTRA ENTERPRISES, INC., Appellant, v. OAK VIEW LAND AND CATTLE COMPANY, INC., d/b/a McDonald Insurance, Respondent.
    No. ED 84394.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 9, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 5, 2005.
    Application for Transfer Denied March 1, 2005.
    Andrew R. Kasnetz, Christopher A. Hoffman, St. Louis, MO, for appellant.
    Sanford Goffstein, Lori R. Koch St. Louis, Missouri, for respondent.
    Before GARY M. GAERTNER, Sr., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant Kienstra Enterprises, Inc. (“Kienstra”) appeals from the trial court’s judgment granting Respondent Oak View Land and Cattle Company, Inc. d/b/a McDonald Insurance’s (“McDonald”) motion to dismiss. Kienstra raises three points on appeal. First, Kienstra argues the trial court erred in dismissing Kienstra’s claim for breach of contract because Kienstra pleaded facts sufficient for the court to infer consideration, and alternatively, lack of consideration can not be used to defeat the validity of a completed contract. Second, Kienstra argues the trial court erred in dismissing Kienstra’s claim for negligence because Kienstra adequately pleaded a broker-client relationship that includes a broker’s professional duty to obtain competitive insurance bids. Third, Kienstra argues the trial court erred in dismissing Kienstra’s claim for breach of fiduciary duty because Kienstra pleaded facts sufficient to show McDonald was Kienstra’s agent, and Kienstra relied on McDonald, giving rise to a fiduciary duty to obtain competitive insurance bids.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. Judgment is affirmed pursuant to Rule 84.16(b). The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


author: SHERRI B. SULLIVAN, J.

text:
    HTH COMPANIES, INC. and Thermaltech, Inc., Appellants, v. MO. DEPT. OF LABOR AND INDUSTRIAL RELATIONS, et al., Respondents.
    No. ED 84302.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 9, 2004.
    Application for Transfer to Supreme Court Denied Jan. 26, 2005.
    Application for Transfer Denied March 1, 2005.

      Thomas Alan Sheehan (counsel for HTH Companies, Inc & Thermaltech, Inc.), Prairie Village, KS, Stephen Paul Schuster (co-counsel), Kansas City, MO, for appellants.
    Michael Eugene Cook Pritchett (counsel for MO Division of Labor Standards, Labor & Industrial Relations Commission & MO Dept of Labor & Industrial Relations), Jefferson City, MO, John H. Goffstein (counsel for Inti Association of Heat Frost, Insulators & Asbestos), St. Louis, MO, for respondents.
   SHERRI B. SULLIVAN, J.

HTH Companies, Inc. (HTH) and Ther-maltech, Inc. (Thermaltech) (collectively Appellants) appeal from the Franklin County Circuit Court’s judgment reversing the Labor and Industrial Relations Commission’s (the Commission) decision that set the prevailing wage rate for asbestos workers in Boone County at $38.00 per hour in Wage Order No. 10, and setting the prevailing wage at $16.04. The Circuit Court based its reversal on its finding that the Commission wrongfully engaged in rulemaking when it excluded the hours worked by an illegal alien in its determination of the prevailing wage.

We reverse the judgment of the Circuit Court reversing the Commission’s decision. We affirm the decision of the Commission.

Background

Each year the Division of Labor Standards of the Missouri Department of Labor and Industrial Relations (Division) issues an Annual Wage Order that sets out the prevailing hourly rate of wages in each county for each separate occupational title. Section 290.262.1. The prevailing wage for each occupational title is generally determined by collecting information from throughout the state about how much is actually being paid for the work within those titles in each county. The Division collects reports from contractors, public bodies, and other interested parties that identify the occupational titles of workers that had been engaged in construction projects, the wages and benefits provided to those workers, the number of hours they worked, and the county in which the work was performed. The wage rate and benefits paid most frequently in a county for a particular occupational title becomes the prevailing wage for that occupational title in that county. Branson R-IV School Dist. v. Labor and Indus. Relations Comm’n, 888 S.W.2d 717, 720 (Mo.App. S.D.1994).

Pursuant to the foregoing, in March 2003 the Division filed its Annual Wage Order No. 10 (Order No. 10) with the Missouri Secretary of State. In Order No. 10, the Division determined the prevailing wage rate for the occupational title of Asbestos Worker in Boone County to be $16.04 per hour. In April 2003, Asbestos Workers Local No. 1 (the Union) filed objections to the wage rate set in Order No. 10. HTH intervened in the proceeding. The Commission held a hearing on the Union’s objection in May 2003. In July, the Commission entered its determination that the prevailing wage rate for asbestos workers in Boone County was $38.00 per hour.

The Union filed a petition for review of the Commission’s order in Cole County Circuit Court, contending that the Commission erred in failing to grant it attorney’s fees and failing to sanction the contractors for ignoring Commission rules as to apprenticeship. HTH and Thermaltech filed a petition for review of the Commission’s order in Franklin County Circuit Court, asserting that the Commission erred in excluding from its consideration certain hours worked by the asbestos workers and including others.

In March 2004, the Franklin County Circuit Court entered its judgment reversing the Commission’s prevailing wage determination and determining the prevailing wage for the Boone County asbestos workers to be $16.04. The judgment also rejected a challenge to the court’s jurisdiction to hear the case based on the Union’s filing of its petition for review in Cole County earlier than Appellants filed then’ petition for review in Franklin County. The court concluded that the Union’s Cole County petition did not raise an issue as to Order No. 10 and even after amended to include claims as to Order No. 10, did not involve the same subject matter as the Franklin County case that it was deciding. This appeal follows.

Standard of Review

This court reviews the decision of the administrative agency, and not that of the trial court. Bollinger v. Wartman, 24 S.W.3d 731, 733 (Mo.App. E.D.2000). We must determine whether competent and substantial evidence supported the agency’s decision, whether the agency’s decision was arbitrary, capricious, or unreasonable, or whether the agency abused its discretion. Id. The evidence is considered in a light most favorable to the administrative agency’s finding, together with all favorable inferences which support it. Id. The agency’s decision is presumed correct and the burden in challenging such a decision is heavy. Id. Where evidence could support a finding either way, we are bound to uphold the decision of the agency. Id. When reviewing questions of law, however, we exercise unrestricted, independent judgment and must correct erroneous interpretations of law. Burlington Northern R.R. v. Director of Revenue, 785 S.W.2d 272, 273 (Mo.banc 1990).

Jurisdiction

We review the jurisdictional issue raised by the Division and the Union independently on appeal. Kieffer v. Niemeyer, 113 S.W.3d 300, 301 (Mo.App. E.D.2003).

The Division and the Union argue that the Franklin County Circuit Court did not have jurisdiction to enter a judgment in this case because the petition for review of the Commission’s decision was filed in Franklin County on July 8, 2003, five days after the Union had filed its petition for review of the decision in Cole County on July 3, 2003.

Abatement, also known as the “pending action doctrine,” holds that where a claim involves the same subject matter and parties as a previously filed action so that the same facts and issues are presented, resolution should occur through the prior action and the second suit should be dismissed. Bellon Wrecking & Salvage Co. v. David Orf, Inc., 983 S.W.2d 541, 548 (Mo.App. E.D.1998). The court in which the claim is first filed acquires exclusive jurisdiction over the matter. Id.

The Division and Union contend that the case before the Franklin County Circuit Court and the one filed earlier in Cole County involved the same parties and the same subject matter, i.e., the validity of the Commission’s July 1, 2003 decision as to the prevailing wage to be used in Annual Wage Order No. 10 for the occupational title of Asbestos Worker in Boone County. However, in order for the abatement doctrine to apply, the object and purpose of the two actions, including the principles of law raised, must be the same. Estate of Holtmeyer v. Piontek, 913 S.W.2d 352, 357 (Mo.App. E.D.1996) (Emphasis added). Such was not the case here. The Union was not aggrieved by the prevailing wage set in Wage Order No. 10 and did not challenge that wage in its action in Cole County. Rather, the Union challenged, among other things, the Commission’s refusal to debar Appellants from the public bidding process and its failure to rule on the effective dates of Wage Order No. 9. In their Franklin County action, Appellants challenged the legality of Wage Order No. 10 with the same arguments it makes on appeal. As such, the object and purpose of these two actions were different, and thus the Cole County Circuit Court was not a court of concurrent jurisdiction at the time the Franklin County petition was filed.

Further, the Cole County Circuit Court expressly disavowed having jurisdiction over the issues presented by Appellants in Franklin County. On November 18, 2003, the Cole County Circuit Court entered an order resolving the parties’ jurisdictional dispute, finding that: “This Order does not preclude Intervenors [Appellants] from pursuing its [sic] stated petitions for review in Franklin County Circuit Court, Case Numbers 03CV330606 and 03CV330609. The Court makes no findings of fact or ■ law pertaining to those actions.”

Based on the foregoing, the Division and the Union’s jurisdictional claims are denied.

Appeal

Appellants present three points on appeal. In their first point, Appellants assert that the Commission acted arbitrarily, capriciously, unreasonably, and outside its jurisdiction when it set the prevailing wage for asbestos workers in Boone County at $38.00 per hour because Missouri law mandates that it consider not only wage rates established by collective bargaining agreements, but also “the rates that are paid generally within the locality,” in that the Commission excluded hours performed by apprentices that were paid at the higher journeyman wage rate.

Appellants note that the issue of whether apprentice hours should be considered in computing the prevailing wage was decided by this Court in Case No. ED84234, and that the apprentice issues in that appeal are virtually identical to those here. As such, there is nothing new to discuss in regards to this argument.

Missouri law requires the Department of Labor and Industrial Relations to determine once each year the prevailing hourly rate of wages paid to each occupational title of work in each county in Missouri. Section 290.250; HTH Companies, Inc. v. Missouri Labor and Indus. Relations Comm’n, 995 S.W.2d 503, 506 (Mo.App. W.D.1999). The “prevailing hourly rate of wages” is defined in Section 290.210(5) as “the wages paid generally, in the locality in which the public works is being performed, to workmen engaged in work of similar character including the basic hourly rate of pay” and any contributions made by the employer for other “fringe benefits.” HTH Companies, Inc., 995 S.W.2d at 506. (Emphasis added). In determining the prevailing rate, Section 290.262(1) requires that the department “shall ascertain and consider the applicable wage rates established by collective bargaining agreements, if any, and the rates that are paid generally within the locality....” Id.

In the present case, Appellants state that the Commission excluded 2,178 hours reported at the $16.04 wage rate simply because the hours were worked by individuals the Commission labeled as “apprentices,” which should not be included in determining the prevailing rate for workmen. Appellants argue that the hours worked by apprentices should have been included and considered in determining the prevailing wage rate for workmen under the terms of the statute.

We agree with the Commission. Workmen are defined in the statute as including “laborers, workmen and mechanics.” Section 290.210(8). The statute does not specifically define apprentice. Webster’s Dictionary 66 (2d ed.1997) defines an apprentice as: “a person who works for another in order to learn a trade” and “learner; novice.” An apprentice is also defined as “a person bound by an indenture to work for an employer for a specified period to learn a craft, trade, or profession” or “a learner in any field of employment or business.” Black’s Law Dictionary 97-98 (7th ed.1999). The Missouri Code of State Regulations sets forth the requirements for the payment of apprentice wages for workers employed on public works subject to the Prevailing Wage Law. 8 C.S.R. 30-3.030(2) provides that “Apprentices shall be permitted to work at less than the predetermined rate for the class or type of work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program ...” and they are working with adequate supervision as defined in that program. Once an apprentice achieves full journeymen status, i.e., fully-trained and finished with his apprenticeship status, then he must be paid the full prevailing wage rate. 8 C.S.R. 30-3.030(1). We find that this distinction logically necessitates that apprentices’ wages, specifically lower than the prevailing wage rate of journeymen workers, should not be included in determining what the prevailing wage rate for journeymen workers should be.

We also note that the information used by the Division in determining prevailing wages is submitted to the Division on a form called “Contractor’s Report of Construction Wage Rates, Form LS-04 (8-99) Al.” Instructions for completion of the form provide that the hours of work reported should not include hours worked by apprentices.

We also determine that the portion of 8 C.S.R. 30-3.030 requiring payment of full prevailing wages to apprentices in certain instances is not inconsistent with exclusion of apprentice hours worked at that rate because the regulation is meant to curb abuses of apprentice status and has no bearing on the prevailing wage calculation.

Finally, we agree wholeheartedly with the Union in noting that strong public policy exists for not including apprenticeship hours in the determination of the prevailing wage rates in order to protect the integrity of the quality of the work performed by workers on public projects. The public has an interest in having fully trained journeyman workers perform work on public projects to protect the infrastructure of our society. Point denied.

In their second point, Appellants maintain that the Commission acted arbitrarily, capriciously, unreasonably, and outside its jurisdiction when it set the prevailing wage for asbestos workers in Boone County at $38.00 per hour because Missouri law mandates that it consider “the rates that are paid generally within the locality,” in that the Commission improperly excluded hours worked by an asbestos worker that the Commission found to be an illegal alien.

In support of their point, Appellants argue that if the Legislature wanted to exclude hours worked by illegal aliens it would have specifically done so by adding them to the exclusionary clause set forth in Section 290.220. The Legislature chose not to do so, and for this reason alone, assert Appellants, the Commission erred in excluding the illegal alien’s hours.

We disagree with this simplistic conclusion. We also find it is clearly against public policy to include hours worked by an individual illegally within the United States in determining the Prevailing Wage Law. Although it would seem that any further discussion on this point is absurd, we shall expand a bit upon our reasoning in coming to this conclusion.

Federal law requires that at the time of hire, an employer must obtain documentation establishing the applicant’s identity and employment eligibility. See 8 C.F.R. Section 274a.2. The employer must physically examine the documentation presented, verify its genuineness under penalty of perjury, and complete two of the Employment Eligibility Verification Forms, known as Form I-9’s, within three business days of the date of hire. Id. A Form 1-9 must be retained by the employer for three years after the date of hire, or for one year after the employee’s employment ends, whichever is later. Id.

In the instant case, both Thermaltech and HTH required the illegal alien employee to fill out 1-9 Forms, but the record indicates that they did not verify his social security number. The Union investigated his social security number and discovered that numerous other people were using the same number.

We conclude that if an individual is not eligible for employment because he is an illegal alien, his hours are logically not eligible to be included in determining the Prevailing Wage. Such a determination by the Commission is not an act of rule-making, but rather a determination and logical interpretation of the existing law. Point denied.

In their third point, Appellants claim that the Commission erred when it set the prevailing wage for asbestos workers in Boone County at $38.00 per hour because it engaged in improper rulemak-ing activity in violation of the Administrative Procedures Act in that its blanket refusal to consider hours worked by apprentices or supposed illegal aliens constituted statements of general applicability that implemented, interpreted, or prescribed law or policy and proper notice was not given.

The central question in this point is whether the Commission, in determining prevailing wage rates for asbestos workers in Boone County, improperly based its decision on an interpretation of the statutes that should have been promulgated as a rule pursuant to the APA rulemaking requirements. We conclude that the Commission’s determination was not based on a rule. Therefore, no rulemaking procedures were required, and the Commission’s determination should be affirmed.

Section 536.010(4) defines a rule as “each agency statement of general applicability that implements, interprets, or prescribes law or policy.” In other words, a rule is “[a]n agency statement of policy or interpretation of law of future effect which acts on unnamed and unspecified persons or facts.” Missourians for Separation of Church and State v. Robertson, 592 S.W.2d 825, 841 (Mo.App.1979). In contrast to a rule, an adjudication is “[a]n agency decision which acts on a specific set of accrued facts and concludes only them.” Id. An adjudication results from a “contested case,” which the APA defines as “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” Section 536.010(2).

The instant case involves an adjudication by the Commission. Like in Branson R-IV School Dist. v. Labor and Indus. Relations Com’n, 888 S.W.2d 717, 721 (Mo.App. S.D.1994), “[t]he only ‘rules’ implicated in that adjudication are the statutory rules (i.e., the laws) by which the legislature defined the term ‘prevailing hourly rate of wages’ and directed how prevailing wage rates should be determined.” In this case, the Commission reached a decision in a contested case as to whether or not hours worked by apprentices and an illegal alien should be included in determining the prevailing wage rate, through a valid interpretation and application of relevant statutes. Id. at 724.

We conclude that the Commission did not engage in improper rulemaking when it determined that apprentice hours and hours worked by an illegal alien should not be used in determining prevailing wages because the determination was made in a decision on a contested case and because it was based on a valid interpretation and application of the relevant statutes. Point denied.

The judgment of the Circuit Court reversing the Commission’s decision is reversed. The decision of the Commission is affirmed.

GARY M. GAERTNER, SR., P.J., and BOOKER T. SHAW, J., concur.

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

      . The occupational title at issue in this case is asbestos worker.

      .The county at issue in this case is Boone County.


author: CLIFFORD H. AHRENS, Judge.

text:
    Richard LaROSE, as the Personal Representative of the Estate of Gail LaRose, and Richard LaRose, Individually, Respondents, v. WASHINGTON UNIVERSITY, Appellant.
    No. ED 84271.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 9, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 5, 2005.
    Application for Transfer Denied March 1,2005.

      Robert T. Haar, Lisa Pake, St. Louis, MO, for appellant.
    Jeffrey S. Maguire, David M. Zevan, Cape Girardeau, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

Washington University (“defendant”) appeals the judgment on a jury verdict in favor of Gail LaRose and Richard LaRose (collectively referred to herein as “plaintiffs”). Defendant claims that the trial court erred in denying its motion for judgment notwithstanding the verdict because plaintiffs failed to make a submissible case. Additionally, defendant claims that the trial court erred in denying its motion to amend the judgment, or in the alternative for remittitur or new trial because the judgment was excessive. Finally, defendant argues that the trial court erred in denying its motion for new trial because undue prejudice resulted from the court’s decision to allow Richard LaRose to testify twice during the trial, including once near the end of defendant’s case. Finding no error, we affirm

Mohammad Moaddabi, M.D. was Gail LaRose’s primary care physician. Dr. Moaddabi referred Gail to Benjamin Schwartz, M.D., one of Washington University’s physicians, for the evaluation of a potential rheumatological condition in June 2000. Dr. Moaddabi provided Dr. Schwartz with certain radiological reports for his evaluation of Gail, including a bone scan report which recommended a bilateral renal ultrasound. Dr. Schwartz examined Gail, and treated her rheumatological condition, but did not order the ultrasound as recommended by the bone scan report. In February 2001, Gail was ultimately diagnosed with ovarian cancer. Plaintiffs subsequently filed a petition alleging medical malpractice against Dr. Moaddabi, Dr. Schwartz and Washington University for failure to timely diagnose her ovarian cancer and alleging loss of consortium on behalf of Richard LaRose. After trial, a jury returned a verdict in favor of plaintiffs and against defendant on each of their claims. Specifically, the jury assessed fifty percent fault to Washington University and fifty percent to Dr. Moaddabi. The jury awarded Gail LaRose $70,000.00 in past economic damages, $430,000.00 in past noneconomic damages, $400,000.00 for future economic damages, and $2,000,000.00 for future noneconomic damages. The jury determined that Gail lost a fifty-seven percent chance of recovery. On Richard LaRose’s claim for loss of consortium, the jury found that he did sustain damage as a result of the injury to his wife Gail, and awarded him $50,000.00 in past noneco-nomic damages and $200,000.00 in future noneconomic damages. The court entered its judgment on the jury’s verdict, reducing the amount of damages awarded to plaintiffs. The court found that the jury’s award of past economic damages for Gail’s claim exceeded the evidence, and reduced it accordingly. The court also reduced the damages awarded to both plaintiffs by multiplying the amount by the percentage of chance lost, as found by the jury. This amount was then reduced by the amount of fault assessed to Dr. Moaddabi, as a result of his settlement with plaintiffs. The amount of noneconomic damages was further reduced by the maximum limit set forth in section 538.210 RSMo (Cum.Supp. 2003), which at the time of judgment was $557,000.00. The court noted that it made no such reduction to the damages awarded to Richard because the amount was already less than this maximum limit. Thus, after the reductions made by the trial court, Gail LaRose was awarded a total of $690,908.56 in damages, and Richard La-Rose was awarded $71,250.00. The trial court subsequently denied defendant’s motions for judgment notwithstanding the verdict, for remittitur, new trial or to amend the judgment. Defendant now appeals.

In its first point on appeal, defendant claims that the trial court erred in denying its motion for judgment notwithstanding the verdict because plaintiffs failed to make a submissible case.

“The standard of review based on a trial court’s denial of a motion for judgment notwithstanding the verdict is whether the plaintiff made a submissible case.” Echard v. Barnes-Jewish Hosp., 98 S.W.3d 558, 565 (Mo.App.2002). To make a submissible case, a plaintiff must present substantial evidence to support every fact essential to liability. Id. In determining whether a plaintiff has made a submissible case, we view the evidence and all reasonable inferences therefrom in the light most favorable to plaintiff. Id. We will reverse the verdict of the jury only where there is a “complete absence of probative fact” to support the jury’s conclusion. Id.

In the present case, defendant specifically challenges the sufficiency of plaintiffs’ evidence concerning defendant’s breach of the standard of care. Defendant argues that plaintiffs were required to establish, through substantial evidence, that Dr. Schwartz breached the standard of care exercised by other members of his profession under the same or similar circumstances. Defendant claims that the testimony of Gary Salzman, M.D., plaintiffs’ expert witness, was based upon inappropriate foundation and was not supported by proper authority. Additionally, defendant points out what it claims to be a “fatal inconsistency” in Dr. Salzman’s testimony. According to defendant, Dr. Salzman could not opine that Dr. Schwartz met the standard of care for his treatment of Gail LaRose’s potential rheumatologieal condition, and still testify that Dr. Schwartz failed to meet the standard of care with respect to the diagnosis of her ovarian cancer.

In the present case, Dr. Salzman, an expert in the areas of internal medicine, pulmonary disease and critical care medicine, testified that after a finding of potential blockage of one of Gail’s ureters on a bone scan, Dr. Schwartz deviated from the standard of care in failing to either order an ultrasound for further evaluation, or recommend that one be ordered. Dr. Salzman stated that an internal medicine physician evaluating a patient would be required by the standard of care to investigate the finding on the bone scan by ordering an ultrasound.

Dr. Salzman testified, based upon his clinical experience as an internal medicine physician, as to what other physicians, exercising the same degree of skill and learning would ordinarily use under the same or similar circumstances. Any argument by defendant regarding inconsistencies in Dr. Salzman’s opinions, or lack of authority speaks to the weight and credibility of Dr. Salzman’s testimony, which is a question for the jury. Davolt v. Highland, 119 S.W.3d 118, 127 (Mo.App.2003).

Additionally, defendant argues that in order to make a submissible case, plaintiffs were required to present substantial evidence that an ultrasound would have detected Gail’s ovarian cancer in June of 2000, and that Gail’s prospects would have been materially better if the diagnosis had been made at that time. Again, defendant argues that because of inappropriate foundation and inconsistencies in the testimony of plaintiffs’ experts, plaintiffs failed to present substantial evidence to support their claim.

Both of plaintiffs’ experts testified that the ovarian cancer was present and diagnosable in June 2000. Dr. Salzman stated that more likely than not, the finding of potential blockage to one of Gail’s ureters on the bone scan performed in February 2000, was caused by the ovarian tumor that was compressing her ureter. He testified that his opinion was that if an ultrasound had been done to follow up this finding, the ovarian mass would have been detected and ultimately diagnosed as ovarian cancer. Additionally, Howard Ozer, M.D., an oncologist, testified as an expert for plaintiffs. Dr. Ozer testified that in June 2000, Gail’s ovarian tumor would have been detected by an ultrasound. He believed that the tumor was present in June 2000, and at that time, Gail would have had a sixty percent chance of living five years with the disease if it had been diagnosed.

Based upon the testimony of Dr. Salz-man and Dr. Ozer, plaintiffs presented substantial evidence that Dr. Schwartz deviated from the standard of care, and that the cancer was present and diagnosable in June 2000. Therefore, the case was properly submitted to the jury, and the trial court did not err in denying defendant’s motion for judgment notwithstanding the verdict. Point denied.

In its next three points on appeal, defendant asserts that the trial court erred in denying its motion to amend the judgment, or alternatively for remittitur or new trial because the judgment was excessive.

The standard of review for a trial court’s denial of a motion to amend a judgment and for remittitur is for abuse of discretion. Brockman v. Soltysiak, 49 S.W.3d 740, 744 (Mo.App.2001). Remittitur will be considered appropriate where the verdict of the jury is excessive because it “exceeds fair and reasonable compensation for plaintiffs ... damages.” Id.; (quoting Meyer v. McGarvie, 856 S.W.2d 904, 908 (Mo.App.1993)).

First, defendant claims that the judgment was excessive because the evidence did not support the jury’s determination that Gail LaRose lost a fifty-seven percent chance of recovery. Defendant argues that the fifty-seven percent assessment is not supported by the evidence because it necessarily incorporates events not attributable to the negligence of defendant. According to defendant, the loss of chance must only be calculated by determining the chance at the time plaintiff alleges the disease should have been diagnosed less the chance at the time the disease is actually diagnosed. We disagree.

The cause of action of loss of chance of recovery was first recognized by the Missouri Supreme Court in Wollen v. DePaul Health Center, 828 S.W.2d 681 (Mo. Banc 1992). In Wollen, the court acknowledged that statistical evidence regarding the chance of survival could not tell whether the decedent would have survived if properly diagnosed. Id. at 685. However, the court stated that, “[t]he issue is whether there is a permissible inference from the allegation of a statistical chance of recovery to the conclusion that death was caused by the negligence of defendant(s).” Id.

Here, Dr. Ozer, plaintiffs’ expert, testified that he believed the ovarian tumor was present and diagnosable in June 2000, and at that time, Gail LaRose had a sixty percent chance of surviving five years with the disease had it been diagnosed. When Gail was ultimately diagnosed with ovarian cancer in 2001, Dr. Ozer testified that she had a forty percent chance of five-year survival. At the time of trial, Gail had suffered a recurrence of the disease, and Dr. Ozer stated that she only had a three to five percent chance of survival.

Defendant argues that there is no evidence to show that the failure to diagnose the cancer in June 2000 proximately caused Gail’s recurrence in 2003. Defendant’s argument fails to take into consideration the very nature of the cause of action of loss of chance of recovery, and the nature of the disease of cancer. According to Dr. Ozer’s testimony, Gail had a sixty percent chance of surviving five years in 2000. He stated that she, therefore, had a sixty percent likelihood that she would not have the recurrence in 2003. When her cancer was ultimately diagnosed, Gail had a forty percent chance of five-year survival. Thus, she had a sixty percent likelihood of suffering a recurrence. The chance that she would suffer a recurrence increased by the alleged failure to diagnose the ovarian cancer, and she did, in fact suffer a recurrence, which further reduced her chances of recovery. Dr. Ozer testified that Gail lost the sixty percent chance of five-year survival because of the alleged failure to diagnose the ovarian cancer, and was living with a three to five percent chance of survival at the time of trial. Based upon this testimony, there was sufficient evidence to support the jury’s determination that Gail lost a fifty-seven percent chance of survival. Therefore, the jury was not confined to a determination of the chance of recovery lost based solely upon a calculation of the chance at the time plaintiffs allege the disease should have been diagnosed minus the chance at the time the disease is actually diagnosed. The jury’s determination that Gail lost a fifty-seven percent chance of recovery was supported by the evidence, and was not excessive.

Next, defendant argues that the judgment was excessive with respect to Gail’s claim for impairment of ability to perform household services because there was insufficient evidence to submit such a claim.

Physical impairment of a plaintiff’s ability to perform household duties has been recognized in Missouri as a compensable claim for damages. Collier v. Simms, 366 S.W.2d 499, 500 (Mo.App.1963). The court in Collier essentially equated this loss of ability to a plaintiffs loss of ability to work or labor. Id. Defendant does not dispute that the loss of ability to work is a valid claim for damages pursuant to Missouri law. However, defendant argues that this element of damage remains subject to the same standard of proof as other claims for damages.

Lost wages or lost earning capacity is defined as an “economic damage” pursuant to section 538.205 RSMo (2000). In its discussion of the recovery of lost wages, or the ability to work, the court in Fairbanks v. Weitzman, 13 S.W.3d 313, 320 (Mo.App.2000), stated that evidence of the value of such loss must be reasonably certain and not based upon speculation. The court stated that the evidence must provide the jury with a basis for a reasonable estimate of the amount of the loss. Id.

In the present case, there was sufficient evidence to provide the jury with a basis for a reasonable estimate of the loss of household services. Gail testified that she did all the housework prior to her chemotherapy treatments, and now her family helps with the work. Additionally, plaintiffs presented the testimony of Leroy Grossman, an economist, regarding certain damages. Grossman provided the jury with an opinion as to the present value of Gail’s loss of income based upon a figure of $10,000.00 in income stream. Although Grossman said that he was not testifying that the loss of Gail’s household services equaled $10,000.00, he testified that the value of those services could be more or less than that amount.

Given Gail’s testimony regarding her household service, coupled with the testimony of Grossman regarding the present value of Gail’s potential income loss, the jury could make a reasonable estimate as to the loss Gail suffered as a result of her illness. The jury’s award of future economic damages was therefore, not excessive and was supported by the evidence.

Defendant also claims that the award of damages for Gail’s loss of ability to perform household services was improperly included as future economic damage, and such damages should have been classified as noneconomic damage under Richard’s loss of consortium claim instead. We disagree. As discussed above, the court in Collier, discussed a wife’s ability to recover damages for her loss of ability to perform household services. 366 S.W.2d at 500. In its discussion, the court noted that, “[a]ny physical inability of a housewife to perform domestic duties must necessarily mean a physical inability to work and labor.” Id. at 499. Additionally, the court acknowledged that such impairment is a compensable item of damage to the wife, and not to her husband. Id. at 500. As previously stated, the loss of ability to work has been defined as an economic damage under section 538.205. Thus, the loss of ability to perform household services, or loss of ability to work, was properly included as an economic damage, recoverable by Gail.

Finally, defendant argues that the judgment was excessive because Richard LaRose’s award of noneconomic damages should have been subject to the same statutory damages cap as was applied to the noneconomic damages awarded to Gail La-Rose.

Section 538.210.1 provides that, “[i]n any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than three hundred fifty thousand dollars per occurrence for noneconomic damages from any one defendant. ...”

The issue of the application of section 538.210 to the damages recovered from a loss of consortium claim has been previously addressed by the Western District in Wright v. Barr, 62 S.W.3d 509 (Mo.App.2001). In Wright, a plaintiff and her husband brought a medical malpractice action and loss of consortium. The jury returned a verdict in favor of plaintiff on both claims. On appeal, the defendants claimed that because the loss of consortium claim of the husband was derivative, both plaintiff and her husband constituted one plaintiff under section 538.210 for purposes of the noneconomic damages cap. Id. at 536. The court in Wright found that although the loss of consortium claim was derivative, a spouse is not automatically entitled to damages for such a claim, and loss of consortium is a separate personal injury claim. Id. at 537. The court concluded that “the nature of [husband’s] claim as a derivative of [plaintiffs] claim does not require that the awards of noneconomic damages to each be considered as a whole under [section] 538.210. The statutory cap applies separately to the two separate claims because the plain statutory language dictates that the cap applies per plaintiff.” Id. at 538.

Defendant acknowledges that the key limitation of the statutory language is that no plaintiff shall recover more than the statutory cap for noneconomic damages from any one defendant; however, defendant claims that we must apply the reasoning from the Missouri Supreme Court in Richardson v. State Highway & Transp. Com’n, 863 S.W.2d 876 (Mo. banc 1993) instead of the reasoning set forth in Wright. We disagree.

In Richardson, the Supreme Court interpreted that application of section 537.610, which limited recovery to parties injured by the operation of a motor vehicle or by the condition of public property, as opposed to other causes of injury. 863 S.W.2d at 879. Section 527.610 provided that liability of the state and its public entities “shall not exceed one million dollars for all claims arising out of a single accident or occurrence and shall not exceed one hundred thousand dollars for any one person in a single accident or occurrence ....” Id. at 880. The court in Richardson found that the language of the statute required that all claims, both “derivative and direct” arising from injuries to “one person in a single accident” were restricted to the $100,000.00 cap. Id.

However, we do not believe Richardson applies to the present case. The court in Richardson based its decision on a statute dealing with limitations for injuries caused by actions other than medical malpractice. Additionally, while both statutes provide a limitation on recovery, the language of each statute is not the same. Therefore, the court’s reasoning in Richardson is distinguishable from the present case.

In the present case, Richard LaRose was a separate plaintiff bringing an action for loss of consortium. Thus, there were two plaintiffs in this case, Richard LaRose and Gail LaRose. Based upon the plain language of section 538.210, and the court’s interpretation of this language in Wñght, we believe that the statutory cap on non-economic damages was appropriately applied to each individual plaintiff. The judgment was not therefore, excessive.

In its final point on appeal, defendant claims that the trial court erred in denying its motion for new trial because undue prejudice resulted in the court’s decision to allow Richard LaRose to testify twice, including once near the end of defendant’s case. Defendant argues that such testimony improperly influenced the jury’s verdict.

We review the trial court’s denial of a motion for new trial for abuse of discretion. Echard, 98 S.W.3d at 567. “A new trial will be available only upon a showing that trial error or misconduct of the prevailing party incited prejudice in the jury.” Id.

In the present case, the error complained of was the trial court’s decision to allow Richard LaRose to take the stand a second time, after the close of plaintiffs’ case. The trial court has discretion to allow a party to reopen his case for any purpose. Lay v. P & G Health Care, Inc., 37 S.W.3d 310, 328 (Mo.App.2000). An appellate court will not interfere with the decision of the trial court unless it appears that injury resulted to the party claiming error. Id.

Here, there was no abuse of discretion in allowing plaintiffs to call Richard La-Rose to testify a second time. Plaintiffs were already going to reopen their case to present the testimony of Leroy Grossman, an economist. After Grossman testified, Richard took the stand. He was asked a total of nine questions, in an effort to present evidence to support his claim for the loss of companionship and society of his wife, Gail. From the record before us, there is no showing of injury to defendant’s case as a result of the brief testimony presented. Thus, the trial court did not abuse its discretion in allowing Richard LaRose to testify a second time. Point denied.

The judgment of the trial court is affirmed.

WILLIAM H. CRANDALL JR., J. and MARY R. RUSSELL, Special J., concur.

      . Plaintiffs' motion to strike defendant's statement of facts is denied.

      . Dr. Moaddabi settled the claim against him with plaintiffs and was dismissed with prejudice from the case. Dr. Schwartz was dismissed from the case with prejudice prior to its submission to the jury.

      . Of this total amount, the court noted that $19,908.56 was awarded for past economic damages, $98,589.00 for past noneconomic damages, $114,000.00 in future economic damages, and $458,411.00 for future noneco-nomic damages.

      . This award included $14,250.00 for past noneconomic damages and $57,000.00 for future noneconomic damages.


text:
    Rachel A. WESTFALL, Plaintiff-Appellant, v. BOARD OF GOVERNORS OF TRUMAN STATE UNIVERSITY, Defendant-Respondent.
    No. ED 84194.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 16, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 26, 2005.
    Application for Transfer Denied March 1, 2005.
    Robert D. Arb, Valley Park, MO, for appellant.
    Emily W. Little, Susan Ford Robertson, Columbia, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The plaintiff, Rachel Westfall, appeals from the grant of summary judgment for the defendant, the Board of Governors of Truman State University, on her premises liability action. No error of law appears and an opinion would have no precedential value. The parties have been provided with a memorandum for their information only setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


text:
    Timothy D. KLAUS, Defendant/Movant, v. STATE of Missouri, Plaintiff/Respondent.
    No. ED 83863.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 23, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 26, 2005.
    Application for Transfer Denied March 1, 2005.
    Jo Ann Rotermund, St. Louis, MO, for appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Timothy D. Klaus (Movant) appeals from the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief (motion) without an evidentiary hearing. Pursuant to a plea agreement with the State, Movant pled guilty to: 1) one count of third-degree misdemeanor domestic assault, in violation of Section 565.074; and 2) one count of first-degree felony child molestation, in violation of Section 566.067. The trial court sentenced Movant to concurrent terms of one year of imprisonment on the assault charge and twelve years of imprisonment on the molestation charge. Movant thereafter timely filed his pro se and amended motions alleging ineffective assistance of his plea counsel, pursuant to Rule 24.035. Movant claims plea counsel should have informed him that he might be subject to civil commitment under Missouri’s Sexually Violent Predator statutes at the conclusion of his prison term. This appeal follows.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. The motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 24.035(k). An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).

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


text:
    In the Matter of Paul R. HOFFMANN, Deceased, Douglas W. Tayloe, Personal Representative for Estate of Sybil June Hoffmann, Plaintiff/Appellant, v. Richard Shinners, Estate of Paul R. Hoffmann, Deceased, and Paul David Hoffmann, Respondents.
    No. ED 84166.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 23, 2004.
    Motion for Rehearing and/or Transfer Denied Jan. 26, 2005.
    Application for Transfer Denied March 1, 2005.
    Irl B. Baris, St. Louis, MO, for appellant.
    Richard Shinners, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, J., and KATHIANNE KNAUP CRANE, J.
   ORDER

PER CURIAM.

Douglas W. Tayloe, personal representative of the estate of Sybil June Hoffmann (herein referred to as “creditor”), appeals the judgment of the probate court awarding attorney’s fees to Richard Shinners in the amount of $17,213.35. Creditor argues that the award of attorney’s fees was not supported by the evidence, was against the weight of the evidence, and erroneously applied and declared the law. Additionally, creditor argues that the court erred in failing to direct payment of a previous judgment allowed by the probate court.

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

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


author: PHILLIP R. GARRISON, Presiding Judge. JAMES K PREWITT, Judge,

text:
    Karen D. PIPPIN, Plaintiff-Appellant, v. Kenneth D. PIPPIN, Defendant/Counter-Claimant-Respondent, v. Karen D. Pippin, Trustee, Third-Party Defendant-Cross-Claimant.
    No. 26101.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 2, 2004.
    Motion for Rehearing or Transfer Denied Dec. 27, 2004.
    Application for Transfer Denied March 1, 2005.

      Paul D. Link, Tina G. Fowler, Lathrop & Gage, L.C., Springfield, for appellant.
    Richard L. Schnake, Daniel K. Wooten, Neale & Newman, L.L.P., Springfield, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

The Circuit Court of Barry County (“trial court”) found that a beneficiary deed executed by Karen D. Pippin (“Appellant”) and Charles K. Pippin (“Decedent”) on November 21, 2000, was effective to convey a life estate in certain real property (“property”) to Appellant and a remainder in fee simple to Kenneth D. Pippin (“Respondent”). We reverse and remand.

Appellant and Decedent wei’e married in 1991 and divorced in 1995. Respondent is Decedent’s son by a previous marriage. Appellant and Decedent executed a “Family Trust,” (hereafter called “Family Trust”) in March 1995, naming themselves as trustees, and providing that it was revocable by both or either of the trustees. The Family Trust also contained a “Surviving Spouse’s Trust” (hereafter called “Appellant’s Trust”) which, as the name implies, was to be for the benefit of the survivor of them. The Family Trust also provided that upon the death of the first spouse (in this case Decedent), the trustee was to “allocate the trust estate to the Surviving Spouse’s Trust,” which in the context of this case would be Appellant’s Trust. It also provided that “[ajfter the allocation of the trust estate, the surviving spouse may revoke and amend the Surviving Spouse’s Trust” [Appellant’s Trust].

The property in question here was apparently conveyed to the Family Trust because in December 1995, as a part of the dissolution of Appellant and Decedent’s marriage, they, as trustees of the Family Trust, conveyed the property to Decedent as a single person. Appellant and Decedent remarried in 1997 and resumed living together on the property, though it remained titled in Decedent’s name alone.

The trial court made findings, uncontested on this appeal, that the following events occurred on November 21, 2000:

(1) Appellant and Decedent executed a document titled “Beneficiary Deed” which, by its terms, conveyed the property from “Grantors: [Decedent] and [Appellant]” to “[Appellant] for and during her natural life, and upon her death unto [Respondent], his heirs and assigns, forever.” The beneficiary deed also contained the following language:
“THIS BENEFICARY DEED is executed pursuant to Section 461.025 RSMo Supplement 1989. It is not effective to convey title to the above described real estate until Grantors, [Decedent] and [Appellant’s] death. This deed will not become effective unless recorded before Grantors [Decedent] and [Appellant’s] death, and it is subject to revocation and change in the manner provided by law.”
This deed was recorded the following day, on November 22, 2000.
(2) Decedent and Appellant executed a revocable trust for the benefit of Respondent, (“Respondent’s Trust”) naming Appellant as trustee, and providing that it would be funded by the proceeds of a $125,000 life insurance policy on Decedent’s life. It also provided that “[t]he Grantor may from time to time by instrument signed, acknowledged and delivered to Trustee, modify or revoke in whole or in part this agreement or the Trust hereby created.”
(3) Decedent and Appellant also executed an amendment to the Family Trust which stated that it was for the purpose of amending the distribution of the trust estate upon the death of Decedent. It provided that upon Decedent’s death, the trustee was to allocate from the trust estate $125,000 from a life insurance policy on Decedent to Respondent’s Trust, with the remaining assets allocated to Appellant’s Trust, except that upon the death of the surviving spouse (here, that would be Appellant), the trustee was to distribute the property to Respondent. The amendment also contained the following:
We, [Decedent] and [Appellant], Set-tlors, hereby ratify and affirm all the other provisions of our [Family Trust] non [sic] inconsistent with this amendment and except as modified and amended by this instrument. We further reserve unto ourselves the right to further revoke, change, amend or modify our [Family Trust].

Decedent died on July 4, 2001. This litigation began when Appellant filed suit against Respondent seeking to replevy an automobile. In a counterclaim, Respondent alleged the execution of the Beneficiary Deed which conveyed to him a remainder interest in the property subject to Appellant’s life estate; that Appellant had demanded that he convey all of his remainder interest in the property, threatening that if he did not, she would not fund his trust with the $125,000 life insurance proceeds and would revoke the provisions of his trust calling for its funding; and that pursuant to Section 461.033, Appellant was without power to revoke or change the beneficiary designation in the Beneficiary Deed because Decedent and not Appellant was the “owner” of the property. Respondent prayed in the counterclaim for a declaration that the Beneficiary Deed is valid; that Appellant has a life estate in the property by reason of the Beneficiary Deed and he has a remainder interest; and that Appellant cannot revoke his beneficiary interest in the property.

Appellant filed a “Third Party Cross-Claim” against Respondent in which she alleged, inter alia, that the Beneficiary Deed did not comply with the provisions of Section 461.025, which requires that the deed take effect on the death of the owner. She sought a declaration that the Beneficiary Deed was invalid.

On May 9, 2002, Appellant moved for summary judgment claiming that the beneficiary deed was invalid, and that she was entitled to a judgment concluding that the property should pass under Decedent’s will. On October 7, 2002, Respondent filed a motion for summary judgment contending that the beneficiary deed was valid and that he was entitled to a judgment declaring that Appellant received a life estate in that property, and that he had the remainder interest. The trial court granted summary judgment in favor of Respondent, finding that Respondent was entitled to judgment as a matter of law because the beneficiary deed was valid and that Appellant had a life estate in the property with Respondent holding the remainder interest. The trial court did not address whether the property passed under Decedent’s will, finding the point moot because of its decision as to the beneficiary deed. This appeal followed.

Our review of an appeal from the trial court’s granting a motion for summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “The propriety of summary judgment is purely an issue of law.” Id. “[A]n appellate court need not defer to the trial court’s order granting summary judgment.” Id. Summary judgment is proper when there is no genuine issue of material facts, and the moving party is entitled to a judgment as a matter of law. First Nat’l Bank of Annapolis, N.A. v. Jefferson Ins. Co. of New York, 891 S.W.2d 140, 142 (Mo.App. S.D.1995). “When considering appeals from summary judgments, the [appellate court] will review the record in the fight most favorable to the party against whom judgment was entered.” ITT Commercial Fin. Corp., 854 S.W.2d at 376. This case requires us to answer a question purely of law.

Appellant presents two points on appeal. In her first point, Appellant claims the trial court erred in granting summary judgment by erroneously applying or declaring the law when it found the beneficiary deed to be valid under Section 461.025. She claims that, by its own terms, the deed failed to transfer the property upon the death of the owner (Decedent) as provided in Section 461.025. She points to the fact that the deed states “[i]t is not effective to convey title ... until Grantors, [Decedent] and [Appellant’s] death.” Appellant argues that according to the language of the deed, it does not convey the property to anyone until the death of Appellant, keeping title to the property in limbo. Furthermore, she claims that the deed cannot be reformed.

Respondent argues that Appellant is es-topped from denying the validity of the deed because she was both a grantor and a grantee under the deed. He also claims that it is impermissible to challenge the validity of the deed on the grounds that it does not comply with the statute. In the alternative, he argues, the deed meets the statutory requirements for a beneficiary deed under Section 461.025 and that Appellant is misreading those requirements.

Respondent’s estoppel argument is not well taken as he did not include it in his original pleadings as an affirmative defense or as part of his counter-claims. He only raised it in his motion for summary judgment, suggestions in support of his motion for summary judgment, and his response to Appellant’s motion for summary judgment. See Contemporary Management, Inc. v. 1007 Olive Partnership, 760 S.W.2d 135, 138-139 (Mo.App. E.D.1988) (finding that where a party only raised an estoppel argument in a motion for summary judgment and in proposed findings of fact and conclusions of law, estoppel was not pled and therefore could not be raised on appeal).

The legislature created beneficiary deeds when it enacted the Nonprobate Transfers Law of Missouri in 1989. Sections 461.003-461.081, RSMo Cum.Supp. (1989). Both parties agree that the trial court applied the incorrect version of Section 461.025.1. Here, the trial court applied the pre-1995 amendments language of Section 461.025, authorizing beneficiary deeds, instead of the statute as it read at the time of the execution of the deed in question. The statute originally read:

A deed that conveys an interest in real property to grantee beneficiaries designated by the grantor or grantors, that expressly states that the deed is not to take effect until the death of the grant- or, or last to die of two or more grantors, transfers the interest provided to the designated grantee beneficiaries who survive, effective on death of the grantor or last to die of two or more grantors, if the deed is executed and filed of record with the recorder of deeds in the city or county or counties in which the real property is situated prior to the death of the grantor or last to die of two or more grantors. A beneficiary deed need not be supported by consideration or be delivered to any grantee beneficiary.

Section 461.025.1, RSMo Cum.Supp. (1989). This statute was amended in 1995 and, as in November 2000, reads:

A deed that conveys an interest in real property to a grantee designated by the owner, that expressly states that the deed is not to take effect until the death of the owner, transfers the interest provided to the designated grantee beneficiary, effective on death of the owner, if the deed is executed and filed of record with the recorder of deeds in the city or county or counties in which the real property is situated prior to the death of the owner. A beneficiary deed need not be supported by consideration or be delivered to the grantee beneficiary. A beneficiary deed may be used to transfer an interest in real property to a trust estate, regardless of such trust’s revoca-bility.

Section 461.025.1. The beneficiary deed at issue states that it was “pursuant to Section 461.025 RSMo Supplement 1989,” and it was executed in November 2000. The wording of the deed, listing both Decedent and Appellant as grantors, follows the pre-amendment statutory language by stating that “[i]t is not effective to convey title ... until Grantors, [Decedent] and [Appellant’s] death.” By comparison, the version of the statute in effect when the deed was executed provides that such a conveyance is not to take effect until the death of the “owner.” Section 461.025.1. It is undisputed that at his death, Decedent was the sole owner of the property. It is also undisputed that the deed was properly executed and recorded in Barry County, where the property is located. We must determine whether the deed, as written, meets the express statement requirement of the current version of Section 461.025.1. We find that it does not.

Section 461.025.1 requires that the beneficiary deed contain an express statement “that the deed is not to take effect until the death of the owner” as opposed to the old language which required that the deed expressly “state[] that [it] is not to take effect until the death of the grantor, or last to die of two or more grantors.” Section 461.025.1 RSMo Cum. Supp (1989). “Owner” is defined as “a person or persons having a right, exercisable alone or with others, to designate the beneficiary of a nonprobate transfer, and includes joint owners.” Section 461.005(8).

When we interpret a statute, “[a] primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider words in the statute in their plain and ordinary meaning.” Reeves v. Bookman, 101 S.W.3d 280, 282 (Mo.App. S.D.2002) (quoting Day v. Wright County, 69 S.W.3d 485, 490 (Mo.App. S.D.2000)). “When the legislature amends a statute, it is presumed to have intended the amendment to have some effect or to accomplish some legislative purpose.” Massage Therapy Training Institute, LLC v. Missouri State Bd. of Therapeutic Massage, 65 S.W.3d 601, 607 (Mo.App. S.D.2002).

The language of the statute is clear. Following the ordinary meaning of Section 461.025.1, we find that the deed must contain an express statement that it will not take effect until the death of the owner. This purported deed expressly states that it is not to take effect until the “Grantors, [Decedent] and [Appellant’s] death.” Decedent was the owner of the property. Appellant was not an owner under the statutory definition, nor does either party allege otherwise. As it is written, the deed does not comply with the requirement of an express statement that it is not effective until the death of the owner as it attempts to make the deed ineffective until after the death of a non-owner as well. Additionally, if we were to enforce the deed as it is written, title to the property would be uncertain as it purports to give a life estate to Appellant, but that life estate would not be effective until Appellant’s death.

The legislature specifically amended the language of Section 461.025.1 to remove the word “grantor” and replace it with “owner.” We must give effect to that amendment in a situation such as this where the deed uses language that the legislature deemed it necessary to replace. Furthermore, in the Nonprobate Transfers Law definitions section, Section 461.005(7), “[n]onprobate transfer” does not include “a transfer made on death of a person who did not have the right to designate his or her estate as the beneficiary of the transfer[.]” Since Appellant was not an owner of the property, she did not have the right to designate anyone as a beneficiary of the transfer, let alone her own estate, and she could not, therefore, make a nonprobate transfer of the property.

We do not agree with Respondent’s argument that Appellant can only challenge the deed based on fraud, undue influence, and murder, and not lack of compliance with Section 461.025. It is true that a beneficiary deed may only be reformed for fraud, undue influence, and murder. Groh v. Ballard, 965 S.W.2d 872, 873-874 (Mo.App. W.D.1998). If Respondent’s contention were true, however, the statutory requirements would be meaningless. Section 461.025.1, as pointed out by both parties and noted above, contains two requirements: an express statement that it does not take effect until the death of the owner, and that it be executed and recorded in the county where the land is situated. This deed was executed and recorded in Barry County, where the land is situated. However, as we determined above, the deed does not contain an express statement that it is effective upon the death of the owner. If the deed does not meet the statutory requirements, it is invalid, regardless of the reasons for challenging it.

Respondent claims that the deed meets the requirements of Section 461.025, but that Appellant misreads the requirements. This argument is also not well taken. Respondent contends that since the deed states that “it is not effective to convey title ... until Grantors, [Decedent] and [Appellant’s] death,” it complies with the requirement that the deed not take effect until the owner’s death. According to Respondent, the language of the deed does not create the transfer of the title, but title is transferred by operation of law after the owner makes the proper recital. Since the deed does not take effect until after Decedent’s death, so Respondent’s theory goes, the deed makes an appropriate recital and was effective at Decedent’s death to give a life estate to Appellant and the remainder to Respondent. However, Respondent makes no explanation for the language in the deed purporting to make the transfer ineffective until the death of Appellant as well as Decedent. We cannot ignore this language which, as noted, violates the statutory requirement that the deed contain an express statement that it is not effective until the death of the owner by placing a further restriction on the transfer of the property. Section 461.025.1. Appellant’s first point is granted and we reverse the judgment of the trial court.

In her second point, Appellant contends that the trial court erred when it denied her request for a determination that, because the beneficiary deed was invalid and the property passed through [Decedent’s] will to the Family Trust at his death, she had a right to revoke or amend Article 2 of the Family Trust (Survivor Spouse’s trust) pursuant to the Trust’s revocation provision and receive the property. The trial court, when it found that the beneficiary deed was valid and effective, determined that the property did not pass according to Decedent’s will. As a result, the trial court found any claims regarding the Family Trust to be moot. Since the trial court made no determination on this issue, there is nothing for our review. We reverse and remand to the trial court for further proceedings consistent with this opinion.

The judgment is reversed and remanded.

PREWITT, J., dissents in separate opinion.

RAHMEYER, J., concurs.

JAMES K PREWITT, Judge,

dissenting.

I respectfully dissent. I think it is clear what the parties to the deed, including appellant, intended. I believe the deed is effective as a deed in general, and it is not prohibited by the beneficiary deed statute cited and relied on in the majority opinion. There is no question about delivery, as the deed was recorded, which establishes a presumption of delivery.

I think that the reference to the repealed statute has no effect except as it tends to reflect the intent of the grantors. Considering the deed as a whole, when the parties clearly intended to create a life estate in appellant, the later reference to “title” must mean the fee would not effectively be in respondent until both grantors had died. “Title” in this situation appears to be ambiguous, and its meaning can only be reconciled with the obvious intentions of the parties that respondent would not have the right to possession and full “title” to the property until the death of both grantors.

I do not believe that there is anything in the beneficiary statute effective at the time of the deed that prohibits such a deed as made by the parties. I would, therefore, give it the effect that the parties intended and affirm the judgment.

      . Section 461.033 provides, in pertinent part, that ''[a] beneficiary designation may be revoked or changed in whole or in part during the lifetime of the owner” and that "[a] revocation or change of a beneficiary designation involving property of joint owners may only be made with the agreement of all owners then living.” All statutory references are to RSMo (2000) unless otherwise indicated.

      . Respondent also filed other counterclaims which were otherwise disposed of by the trial court and do not present issues on this appeal. Respondent also apparently filed a third-party petition against Appellant in her capacity as trustee of the Family Trust and Respondent's Trust. Since the third-party petition is not included in the legal file before this court, we can only speculate about its contents, but from the record it appears that it was filed to include Appellant in her capacity as trustee and presumably mirrored the claim presented in the counterclaim against her'to be discussed in this opinion. The parties do not take positions on this appeal that would indicate otherwise.

      .Appellant also moved for summary judgment on three other issues, but the rulings on those are not appealed here.