author: LAWRENCE G. CRAHAN, Judge.

text:
    Natacha CHANDLER, et al., Appellants, v. MULTIDATA SYSTEMS INTERNATIONAL CORP., INC., et al., Respondents.
    No. ED 84192.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 10, 2005.

      Edward D. Robertson, Jr., Anthony De-Witt, Jefferson City, MO, Joe Fisher, Mark Sparks, Beaumont, TX, Benton Mus-slewhite, Houston, TX, for appellant.
    Jeffrey K. Suess, Heather J. Hays, St. Louis, MO, Clayton E. Dickey, Matthew S. Jensen, Kansas City, MO, for respondent.
   LAWRENCE G. CRAHAN, Judge.

Natacha Chandler, along with a number of persons exposed to excess radiation and survivors of persons who died as a result of excess radiation, almost all of whom are Panamanian residents and citizens (collectively “Plaintiffs”), appeal the judgment of the trial court dismissing their claims against Multidata Systems International Corp., Inc. (“Multidata”), and Theratronics International Limited, MDS (Canada), Inc., MDS Nordion, and MDS, Inc. (collectively “Canadian Defendants”) for forum non conveniens. We affirm.

Between August and December 2000, Plaintiffs (or their decedents) received radiation therapy from the Instituto Oncoló-gico Nacional (“ION”) (translated as the “National Oncology Institute”),- which is located in Panama City, Panama. During this time, they were over-exposed to radiation, resulting in injuries and several deaths. Once the effects of the over-radiation surfaced, the government of Panama requested an investigation into the over-radiation by the International Atomic Energy Association (“IAEA”), which included a panel of several international experts and a number of Panamanian supporting experts. The IAEA published a report explaining its understanding of the events leading to the over-radiation (“IAEA Report”).

In October 2001, the injured patients and the survivors of deceased patients, totaling 112 persons, brought an action in St. Louis County, Missouri, against Multi-data, a Delaware corporation whose principal place of business is in St. Louis County, and Canadian Defendants, which are all Canadian corporations, for lost chance of recovery or survival, wrongful death, and negligence due to Multidata’s and the Canadian Defendants’ alleged defective radiation therapy products. In particular, Plaintiffs alleged that Multidata negligently manufactured and sold a computer-operated treatment system known as the Treatment Planning System (“TPS”) and that the Canadian Defendants negligently manufactured and sold a Cobalt 60 Thera-tron 780C Teletherapy Unit (“Theratron Unit”), both of which were used by the radiation oncology team to administer radiation therapy at the ION.

According to the IAEA report, the TPS is designed to calculate dosage times where the radiation oncology team uses up to four shielding blocks to protect a patient’s healthy tissue and organs while administering radiation to the cancerous tissue. At some point, one of the radiation oncologists decided to add a fifth block during treatment. The oncologist asked the physicists to enter data regarding the fifth block into the TPS to calculate a new dosage in light of the added block. However, because the TPS is not equipped to calculate a dosage where five blocks are used, the physicists re-configured the entry of data to make it appear to the TPS that the five blocks were actually one single block. As a result, the TPS miscalculated the amount of radiation a patient would actually receive during a therapy session and prescribed a greater number of therapy sessions than the patient should have been given. Ultimately, one of the radiation oncologists and all three physicists on the radiation oncology team at the ION lost their licenses to practice for life. In addition, two of the three physicists were criminally convicted in Panama of negligent homicide due to their roles in the over-radiation.

In response to Plaintiffs’ petition, Multi-data and the Canadian Defendants moved to dismiss the action under the doctrine of forum non conveniens on the basis that Panama is a more convenient forum. After extensive discovery, including depositions of several experts, the court held an evidentiary hearing to determine whether the action should be dismissed. In support of their motions, Multidata and the Canadian Defendants first presented the testimony of Rajendra G. Kurup, PhD. (“Dr.Kurup”), the Director of Medical Physics and an Associate Officer at the University of Kansas. Dr. Kurup testified regarding the standard of care that applies to radiation oncology. Relevant to Plaintiffs’ allegations, he stated that the standard of care for radiation oncology includes verification of a patient’s treatment plan. He testified that generally physicists should conduct an independent second check to make sure a patient gets the correct treatment. Consequently, Dr. Kurup stated that where a physicist or an oncologist deviates from a treatment plan as described in the IAEA report, an independent second check of the dosage calculation is even more important. According to Dr. Kurup, had the ION physicists performed a manual calculation to check the treatment times, which would take them roughly ten minutes to complete, they would have caught the error.

Dr. Kurup also identified the presence of other indicators that should have alerted the radiation oncology team that the dosage time was erroneous, including the configuration of isotope curves (curves used to graphically illustrate the amount of radiation a patient is receiving) that resulted after entry of the erroneous data and the actual extension of time attributed to each separate dose of radiation from the typical amount of 35-50 seconds to 60-90 seconds after re-calculation with the fifth block. Finally, Dr. Kurup noted that a basic principle in using computers to make calculations is that -if incorrect information is entered, the computer cannot generate a correct output.

On the issue of Panamanian law, Multi-data and the Canadian Defendants offered the testimony of Dr. Narciso Arellano Moreno (“Dr.Arellano”). Dr. Arellano testified that he is a litigation attorney in Panama -City, Panama, who has been practicing law since 1976. Dr. Arellano served as dean of the law school he attended in Panama for twelve years and is currently a substitute judge for the Court of Appeals in the district of Panama. During his testimony, Dr. Arellano cited and explained the sections of .Panama’s Judicial Code and Civil Code that permit Plaintiffs to bring a cause of action against Multida-ta and the Canadian Defendants for “extra-contractual” damage, or damage that a person suffers due to negligence. Should Plaintiffs prevail, Dr. Arellano stated that under Panamanian law they would be entitled to recover both “material” damages, such as medical expenses and lost wages, and “moral” damages, such as pain and suffering.

Dr. Arellano further testified regarding the due process protections and discovery tools available to litigants in Panama, such as a party’s ability to add third parties and to obtain expert testimony and documentary evidence. As to the competency and fairness of judges, Dr. Arellano testified that he believed all the judges in Panama were competent and had to meet various qualifications outlined in the statutes. He also testified that any corruption present in the system could be remedied using Panama’s complaint process. Panama recently enacted “Law 28” to improve the efficiency of the court system, and, according to Dr. Arellano, Law 23 has generated positive results.

With respect to jurisdiction over foreign defendants, Dr. Arellano explained, based on Panama’s Judicial Code and his experience trying cases against foreign corporations, that Panama may take jurisdiction over the defendants based on the location of Plaintiffs’ injuries in Panama City even though Multidata and the Canadian Defendants are foreign corporations not registered in Panama. With respect to the legal principle of lites ‘pendencia, which precludes a plaintiff from filing a lawsuit against a person while another suit is pending against the same person based on the same incident, Dr. Arellano testified that this principle only applies where the suit is filed within the nation of Panama and does not apply to suits pending in foreign countries.

Finally, Dr. Arellano explained the application of the Bustamante Code, a treaty governing civil litigation among Central and South American countries. Dr. Arel-lano stated that the Bustamante Code, which limits a court’s jurisdiction over a cause of action to the location of the defendant’s domicile or a venue to which all parties have consented, can only be enforced with respect to countries that ratify and adhere to it, and that to the extent the Bustamante Code conflicts with Panamanian law, Panamanian law will prevail. According to Dr. Arellano, the United States has not ratified the Bustamante Code.

When Dr. Arellano completed his testimony, Multidata and the Canadian Defendants then presented the videotaped deposition testimony of Dr. Jorge Jose Fabrega Ponce (“Dr.Fabrega”), Plaintiffs’ Panamanian law expert. In addition to receiving his law degree in Panama, Dr. Fabrega received a Bachelor of Arts from the University of Southern California, a Master’s Degree in political science from the University of Pennsylvania, and has studied comparative law at the University of Strasbourg in France. Dr. Fabrega has practiced law since 1953 and has served as an active justice in Panama’s Civil Court of Appeals and Civil Chamber of the Supreme Court, administrative litigation. In addition, Dr. Fabrega has assisted in drafting the Judicial Code of Panama, which regulates civil procedure, and has written books on topics such as procedural law, evidence, and civil law.

Although at certain points during Dr. Fabrega’s deposition he stated that Panama was not an available forum because Plaintiffs already chose to sue in the United States, he agreed that Panamanian law provided a cause of action against manufacturers for negligence under its Civil Code. Dr. Fabrega also stated that plaintiffs can sue either at the location of the defendant’s domicile or the location of the injury, depending on the plaintiffs choice, and that defendants can consent to jurisdiction in Panama.

As to the general characteristics of Panamanian law, Dr. Fabrega explained that Panama follows the Roman system, which means that Panama law is codified. Therefore, Panama courts do not consider written opinions to be precedent, although they can be considered persuasive authority. Dr. Fabrega also testified that trial judges, rather than juries, are fact-finders in civil matters. When asked questions regarding Panama’s interest in providing a forum for the case, Dr. Fabrega acknowledged that Panama has a legitimate interest in protecting its citizens from injury and setting standards for the manufacture and distribution of products within its borders.

To the extent Dr. Fabrega testified unfavorably with regard to Plaintiffs’ ability to bring a cause of action against foreign corporations and as to corruption or other problems with Panama’s judicial system, Multidata and the Canadian Defendants produced affidavits .filed with respect to two prior United States cases in which Dr. Fabrega testified that Panama is an available and an adequate forum for persons wishing to sue foreign corporations for negligence, including for negligence due to defective manufacturing of a product.

Although Dr. Fabrega believed some of the Panamanian judges were not as experienced as others due to a shifting of judges from the criminal to civil courts, he testified that he disagreed with a United States Department of State report which stated that Panama’s judiciary is susceptible to corruption and outside influence. He also stated that he believed the members of the higher courts were competent and honest although some, may be subject to political influence.

Dr. Fabrega duplicated some of Dr. Ar-ellano’s testimony at the hearing regarding a plaintiffs ability to recover material and moral damages and the lack of a cap on such damages, but he further stated that punitive damages may not be available in Panama. He testified that parties can compel non-party witnesses to testify through compulsory service and that contingent fee arrangements are permissible. As to admissible evidence, Dr. Fabrega stated that documents from the United States would be admissible so long as the defendants’ representatives testified with respect to their authenticity.

To support their opposition to Multida-ta’s and the Canadian Defendants’ motions to dismiss, Plaintiffs presented the testimony of Dr. Julio Elias Berrios Herrara (“Dr.Berrios”). Dr. Berrios is a private attorney and also a professor of international law at the University of Panama. He testified that in his opinion, once Plaintiffs sued Multidata and the Canadian Defendants in the United States, they could not return to Panama and file the cause of action there. Although Dr. Berrios acknowledged that the Judicial Code allows a plaintiff to sue a defendant where the injury occurred,. Dr. Berrios explained that once you choose one forum, you cannot choose the other. Dr. Berrios did not cite to any Judicial Code or Civil Code articles, but he did argue that the Bustamante Code supported his conclusion.

When asked whether a plaintiff can sue an unregistered foreign corporation in Panama, Dr. Berrios was adamant in denying this possibility unless the foreign corporation did business in Panama. Dr. Berrios did not explain where in the Judicial Code a prohibition on suing a foreign corporation unless the corporation did business in Panama existed. He also testified that he disagreed with Dr. Fabrega’s testimony that a defendant can consent to jurisdiction in this case. Again, Dr. Berr-ios did not cite to any Panamanian authority to support his statements. Dr. Berrios testified that a treaty called the “TALM” treaty gave parties in a United States case authority to compel testimony of non-party witnesses in Panama. However, Dr. Berr-ios could not verify that it applied in the present case since the TALM treaty states that it was approved with respect to mutual legal assistance in criminal cases, not civil cases.

With regard to the adequacy of Panama’s judicial system, Dr. Berrios testified that he believed the Panama judicial system was corrupt and about to collapse based on the United States Department of State report, newspaper articles that stated that some judges and magistrates were sanctioned because of corruption and manipulation, and a newspaper article in which the president of the Supreme Court of Panama criticized the legislature for refusing to commit a greater sum of money to the judiciary’s budget. With regard to judges’ competency, Dr. Berrios explained that some of the judges would not be able to handle a complex case and that he had bad experiences with female judges who refused to take cases because of their complexity.

At some point during the pendency of this case, one of the Plaintiffs filed an action in Panama against Multidata and some of the Canadian Defendants based on the same allegations. Plaintiffs obtained a ruling from a Panama circuit judge dismissing the case for lack of jurisdiction. At oral arguments subsequent to the trial court’s evidentiary hearing but prior to its judgment, Multidata and the Canadian Defendants strenuously objected to consideration of the Panama court’s ruling because the case was filed in the wrong district, neither Multidata nor the Canadian Defendants were served, and the court order mentioned the names of defendants that were not listed in the complaint but were part of the case here in Missouri, which suggested that the Panama judge did not write the opinion. Multidata and the Canadian Defendants further explained that they were in the process of appealing the Panama judge’s order.

After considering the testimony of the parties’ experts, reviewing the legal file, and hearing oral arguments, the trial judge sustained Multidata’s and the Canadian Defendants’ motions to dismiss Plaintiffs’ claims for forum non conveniens. This appeal follows.

The doctrine of forum non conve-niens provides that although a trial court may have proper jurisdiction and venue under the appropriate statute, a trial judge has discretion to not exercise jurisdiction if the forum is seriously inconvenient for the trial of the action involved and if a more appropriate forum is available to the plaintiff. Anglim v. Missouri Pacific Railroad Co., 832 S.W.2d 298, 302 (Mo. banc 1992). In applying the doctrine, trial courts are to consider the following six factors as a guide to determining whether dismissal is warranted: (1) the place of accrual of the cause of action; (2) the location of witnesses; (3) the residence of the parties; (4) any nexus with the place of suit; (5) the public factor of the convenience to and burden upon the court; and (6) the availability to the plaintiff of another court with jurisdiction over the cause of action affording a forum for the plaintiff’s remedy. State ex rel. Chicago, Rock Island & Pacific R.R. Co. v. Riederer, 454 S.W.2d 36, 39 (Mo. banc 1970). However, the Riederer factors are not an exclusive listing of the facts to be considered in deciding whether to apply the doctrine. Anglim, 832 S.W.2d at 302-03. In addition, neither Riederer nor its progeny purport to set the respective weight a trial court must accord to any particular factor. Id.

When deciding whether to dismiss, a trial court necessarily must determine facts and, in doing so, must weigh evidence and assess the credibility of witnesses. Id. at 303. Witness intangibles and knowledge common in the community where the case is tried impact on the weight and credibility of the evidence. Id. Thus, because the application of the doctrine of forum non conveniens is fact-intensive and the weight to be accorded to any factor is dependent on the circumstances, trial court discretion is essential. Id. In reviewing whether the trial court’s ruling amounts to an abuse of discretion, we consider only those facts that were before the court when it ruled on the motion, and the evidence is viewed in the light most favorable to the trial court’s decision. Id. Discretionary rulings are presumed correct, and the appellant bears the burden of showing an abuse of discretion. Id.

Judicial discretion is abused where the ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. Thus, if reasonable persons can differ about the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion. Id.

Plaintiffs raise four points on appeal. In Plaintiffs’ first point, they argue that the trial court erred in concluding that Panama is an adequate and available forum because the evidence of whether the courts of Panama would assume jurisdiction over the case was disputed and thus should have been resolved in favor of Plaintiffs.

As apparent from Plaintiffs’ assertion regarding disputed facts, we initially note that Plaintiffs misunderstand the standard of review applied to a trial court’s ruling on a motion to dismiss for forum non conveniens. Plaintiffs cite Acapolon Corp. v. Ralston Purina Co., 827 S.W.2d 189, 192 (Mo. banc 1992), as support for its contention that disputed facts must be resolved in their favor. Plaintiffs are correct in noting that in Acapolon, the court stated that in reviewing the defendants’ motion for dismissal on the basis of forum non conveniens it would take factual allegations in affidavits and documentary evidence as true, giving credit to the plaintiffs submissions when there is conflict and resolving ambiguities in favor of the plaintiff. Id. However, in Acapolon, the court did not have deposition or hearing testimony before it. In particular, the court stated:

The plaintiff suggests that additional discovery might produce further evidence in support of its contention that Missouri is a convenient forum. A party who wants to introduce motion testimony in court or by deposition must apply to the trial court. The record shows ample notice of the hearing on the motion. The suggestion in the briefs comes too late.

Id. Therefore, unlike the circumstances in Acapolon, the trial court in this case was able to observe witnesses through live and videotaped testimony. Thus, as stated in Anglim, we will defer to the trial court’s determinations of witness credibility and view the facts in the light most favorable to the trial court’s ruling. Anglim, 832 S.W.2d at 303.

As to Plaintiffs’ argument that Panama is not an available forum, Plaintiffs merely recite favorable testimony from Dr. Berr-ios and argue that “the trial court had a legal obligation to conclude that the Panamanian court system was not available to these Plaintiffs.” As stated above, the trial court did not have a legal obligation to conclude that the Panamanian court system was unavailable. Moreover, Multidata and the Canadian Defendants presented ample evidence in the form of actual sections of Panama’s Judicial and Civil Codes and expert testimony from Dr. Arellano and Dr. Fabrega, along with Dr. Fabrega’s affidavits, indicating that Panama can assume jurisdiction over the parties, provide a cause of action against Multidata and the Canadian Defendants, provide due process and an effective discovery system to prepare for trial, and provide adequate remedies.

Multidata and the Canadian Defendants also presented evidence to dispute Plaintiffs’ contention that the Bustamante Code precludes Panama from exercising jurisdiction based on Article 2, which states that the Bustamante Code will not be applicable except between contracting republics. The record reflects that neither the United States nor Canada has ratified the Bustamante Code. Moreover, to the extent Panama would allow jurisdiction in Panama while the Bustamante Code would preclude it, Article 318 of the Bustamante Code states that jurisdiction shall be at the domicile of the defendant unless otherwise provided by local law. Panama’s Judicial Code Article 259, Second Case, conflicts with this provision since it allows a plaintiff to sue where the injury occurred.

We agree with Multidata and the Canadian Defendants that Plaintiffs’ reliance on Canales Martinez v. Dow Chemical Co., 219 F.Supp.2d 719 (E.D.La.2002), to support application of the Bustamante Code is misplaced. In discussing this case, we emphasize that not only are we not bound by its reasoning, we also note that the court in Canales did not mention Article 2 of the Bustamante Code, which limits its applicability to two contracting republics. In Ca-nales, plaintiffs from three countries, including Costa Rica, filed claims against United States defendants based on the defendants’ manufacturing and production of a chemical used on farms in banana-growing regions which rendered the plaintiffs sterile. Id. at 721-22. The district court denied the defendants’ motion to dismiss for forum non conveniens. Id. at 721. In doing so, the court reviewed Costa Rica’s code of civil procedure, reported cases on the subject of jurisdiction, and provisions of the Bustamante Code. Id. at 726-27. Although the court relied in part on the language in the Bustamante Code requiring both parties to submit to a court’s jurisdiction, its reasons for denying the defendants’ motion were that Costa Rica’s code of civil procedure clearly barred the plaintiffs from filing a claim against the defendants in Costa Rica once they filed their suit in the United States. Id. at 727-28. Thus, the court noted that the plaintiffs had no ability to submit to Costa Rica’s jurisdiction in any event. Id. at 728.

Here, there is no indication that the Bustamante Code will apply based on Article 2. Further, unlike the plaintiffs in Ca-nales, Plaintiffs fail to demonstrate which sections of Panama’s Judicial or Civil Codes prohibit Plaintiffs from re-filing this cause of action in Panama. Rather, contrary to Costa Rica’s Code, the Panama Judicial Code in Article 232 states that national jurisdiction is not precluded by the pendency of proceedings before a foreign judge in the same or an ancillary case.

In their reply brief, Plaintiffs add several documents to their appendix to support their argument that Panama mil not exercise jurisdiction over Multidata or the Canadian Defendants because Plaintiffs already sued them in the United States. Included in this appendix are Organization of the American States Reports from 1999 and 2000 presented by Dr. Gerardo Trejos Salas and the text of the April 15, 2004 appellate decision from the First Superior Court in and for the First Judicial District of Panama addressing the case filed by one of the Plaintiffs against Multi-data and the Canadian Defendants in Panama during the pendency of this case. The American States Reports, which contain Dr. Salas’s arguments regarding whether Central American countries should accept jurisdiction under certain circumstances, were not before the trial court even though clearly available at that time given their dates of publication. The appellate decision from the First Superior Court confirms the fact that the case was filed in the wrong venue in Panama, which renders the balance of the opinion pure dicta.

In any event, as stated above, in reviewing the trial court’s decision we consider only those facts that were before the court when it ruled on the motion. Anglim, 832 S.W.2d at 303. The presence of these documents submitted for the first time on appeal are not properly part of the record and cannot be considered by us as supplying the necessary elements of proof. American Express Travel Related Services v. Mace, 26 S.W.3d 613, 615 (Mo.App.2000). Moreover, assuming that Panama does refuse to proceed, this action can be re-filed in Missouri as a dismissal for forum non conveniens is necessarily a dismissal without prejudice. Acapolon, 827 S.W.2d at 195.

Based on the foregoing, the trial court did not abuse its discretion in finding that Panama is an available forum. Plaintiffs’ first point is therefore denied.

Plaintiffs argue in their second point that the trial court erred in determining that Panama is an adequate forum in light of their evidence that the Panama judicial system is subject to corruption and political manipulation. As in their first point, Plaintiffs argue that evidence of whether the Panamanian judicial system is subject to corruption is disputed and therefore should be resolved in favor of Plaintiffs. We reemphasize that the trial judge was not required to resolve this issue in Plaintiffs’ favor and was entitled to make credibility determinations based on the testimony of the parties’ expert witnesses.

Plaintiffs principally rely on the United States Department of State Report, which states that the Panama judiciary “was subject to corruption and political manipulation.” However, while the trial court was entitled to take this report into consideration, see Bridgeway Corp. v. Citibank, 201 F.3d 134, 142 (2d Cir.2000), the trial court also had discretion to review the other evidence presented. Moreover, the trial court was not required to rely on the conclusory statements of Dr. Berrios. El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 678 (D.D.C.1996) (stating that inadequacy cannot be established by general allegations of corruption). The trial court did not abuse its discretion in relying instead on Dr. Arellano and Dr. Fabrega, two practicing attorneys in Panama with connections to the judiciary, who both testified that Panama’s judicial system is not corrupt. Although Dr. Fabrega stated that some of the judges are not experienced and may be subject to political influence, the trial court could have, given less credit to this testimony in light of his contradictory testimony in affidavits filed in prior United States cases where he stated Panama is an adequate forum as well as Panama’s codified requirements for qualification and process for sanctioning judges who are found to be corrupt. Plaintiffs’ second point is denied.

In their third point, Plaintiffs argue that the trial court erred in ordering dismissal under forum non conveniens because not all of the defendants in this case have agreed to be bound by a judgment of the courts of Panama, rendering Panama an inadequate forum. In support of this argument, Plaintiffs cite cases wherein the court relied in part on the defendants’ stipulations or refusals to stipulate that they would be amenable to judgment in the foreign forum in deciding whether to grant the defendants’ motions to dismiss for forum non conveniens. See De Melo v. Lederle Laboratories, 801 F.2d 1058, 1059 (8th Cir.1986); Mizokami Bros. of Arizona, Inc. v. Mobay Chem. Corp., 660 F.2d 712, 719 (8th Cir.1981). Nevertheless, De Meto did not require defendants to stipulate that they will honor a foreign judgment in order for the court to grant dismissal, although it did cite Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), which states that in weighing private interest factors, courts may consider that there may be questions as to the enforceability of a judgment if one is obtained. De Melo, 801 F.2d at 1062. In Mizokami Bros., the Eighth Circuit vacated the trial court’s dismissal of the action for forum non conveniens because the dismissal was not conditioned on whether the alternative forum was actually available considering that the parties did not adequately address the issue. 660 F.2d at 719. While the court listed the defendant’s consent to satisfy a judgment as a proper condition to be included in the order of dismissal on remand, it did not find that the failure of a trial court to obtain such consent amounts to an abuse of discretion. Id. In the absence of such a rule, we cannot say the trial court abused its discretion in granting Multidata’s and the Canadian Defendants’ motions without requiring stipulations. Plaintiffs’ third point is denied.

In Plaintiffs’ final point, they argue that the trial court erred in sustaining Multidata’s and the Canadian Defendants’ motions for dismissal because they failed to sustain their burden of proof that trying this case in Missouri would be substantially more inconvenient than trying the case in Panama. In other words, Plaintiffs contend that the trial court’s' determination with regard to the Riederer factors erroneously weighed in Multidata and the Canadian Defendants’ favor.

The first factor the trial court must consider is the place of accrual of the cause of action. Relying on Dzur v. Gaertner, 657 S.W.2d 35, 36 (Mo.App.1983), Plaintiffs argue that the cause of action for this case accrued in Missouri because that is the state where the “wrong complained of was committed.” Contrary to Plaintiffs’ assertion, under Missouri law, a cause of action accrues when and originates where damages are sustained and capable of ascertainment. Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 436 (Mo. banc 1984); see also Acapolon, 827 S.W.2d at 193 (finding that the claim accrued and the damage occurred in Guatamala even though plaintiffs alleged that decision-making for defective product occurred in Missouri and relevant witnesses were located in Texas). Plaintiffs do not dispute that they sustained their injuries in Panama.

Plaintiffs further argue that, based on choice of law analysis under the Restatement (Second) of Conflicts of Law section 145 (1971), the trial court should look to the place where a defendant’s conduct occurred. However, Plaintiffs fail to explain why choice of law analysis applies to the question of whether a case should be dismissed for forum non conveniens. In addition, Plaintiffs focus heavily on the choice of law factor of where a defendant’s conduct occurred without mentioning that another consideration required in choice of law analysis is the place of injury. See Nelson v. Hall, 684 S.W.2d 350, 351-52 (Mo.App.1984) (listing, among other factors, that courts should consider the place where the injury occurred, and the place where the conduct causing the injury occurred for a choice of law analysis) (emphasis added). Thus, since the cause of action accrued when Plaintiffs and Plaintiffs’ decedents were over-exposed to radiation at the ION, this, factor weighs in favor of dismissal.

The second factor is the location of witnesses. The parties dispute how many witnesses will be required and where they are located. In particular, Plaintiffs argue that this case will likely be severed and that the trial court should have assumed that fewer witnesses' would be required. However, Plaintiffs have not presented any evidence demonstrating that any of the Plaintiffs have agreed to allowing an initial plaintiff to try a “single case” and potentially influence the" remaining plaintiffs’ chance of recovery. Moreover, even assuming the trial court would allow severance, a number ' of witnesses from Panama would still be required to show whether the oncology team’s conduct at the ION will impact on Multidata and the Canadian Defendants’ liability and to prove Plaintiffs’ damages. Moreover, the location of the ION witnesses in Panama prevents the Multidata and the Canadian Defendants from adding them as third parties because they have no contacts with Missouri. The inability to implead responsible third parties as third-party defendants is a factor which weighs heavily in favor of dismissal. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 259, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The trial court did not abuse its discretion in weighing this factor in favor of Multidata and the Canadian Defendants.

The trial court must then consider the residence of the parties. It is undisputed that only one party resides in Missouri— Multidata — and that the remaining parties reside in Panama, Canada, or another state. This factor clearly weighs in favor of Multidata and the Canadian Defendants, especially in light of the Missouri Supreme Court’s reasoning in Acapolon where it stated that the factor of residence of one defendant in Missouri is not inevitably controlling when there are other nonresident defendants. 827 S.W.2d at 193.

The fourth factor the trial court must consider is whether there is any nexus with the place of suit. While Plaintiffs are correct that this case has some nexus with Missouri since Multidata does business here, they are incorrect in stating that “[t]his is not a weighing test.” As stated in Anglim, trial courts necessarily have discretion to weigh the factors to be considered in applying the doctrine of forum non conveniens. Again, the trial court did not abuse its discretion in finding that the presence of Multidata in Missouri was not controlling.

The fifth is the public factor of the convenience to and burden upon the court. Public factors include administrative difficulties flowing from court congestion, the local interest in having localized controversies decided at home, the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action, the avoidance of unnecessary problems in conflict of laws or in the application of foreign law, and the unfairness of burdening citizens in an unrelated forum with jury duty. Piper, 454 U.S. at 241 n. 6, 102 S.Ct. 252. Burdens on the trial court in this case include: the need for language interpretation, since all but one of the Plaintiffs speak Spanish and all of the patients medical records are in Spanish, that the trial court will inevitably deal with issues of conflicts of law and will likely be required to apply Panamanian law to many of Plaintiffs’ claims, that trial in Missouri is not an efficient use of the courts since Multidata and the Canadian Defendants cannot implead third parties at ION and will be required to file a separate action in Panama if this case were to proceed, and that Panama has a strong interest in protecting its citizens from injury due to defective products used within its borders. As the court stated in Acapolon, “Missouri’s interest in assuring that its corporations comply with adequate design standards when designing products for manufacture and use abroad is less substantial than the foreign nation’s interest in protecting its citizens from injury and setting standards for the manufacture and distribution of products within its borders.” 827 S.W.2d at 194. The trial court did not abuse its discretion in determining that the public factors weigh in favor of dismissal.

Finally, the court must consider the availability to the plaintiff of another court with jurisdiction of the cause of action affording a forum for the plaintiff’s remedy. We already addressed this issue in our disposition of Plaintiffs’ first three points, and accordingly, we find that the trial court did not abuse its discretion in determining that Panama provides an adequate and available forum based on its consideration of the Riederer factors.

In addition to discussing the Riederer factors, Plaintiffs further contend that Multidata and the Canadian Defendants have failed to show that Missouri is substantially inconvenient, that the trial court failed to make findings of fact to justify its exercise of discretion, and that the nature of this case with issues involving computer programming and complex mathematical, engineering and physics calculations argues in favor of retaining the case in Missouri. Beginning with their first contention, Plaintiffs rely primarily on Missouri cases where all the parties were United States citizens and the alternative forums were located in other states. See Longshore v. Norville, 98 S.W.3d 746 (Mo.App.2002); State ex rel. Kansas City Southern Ry. Co. v. Mauer, 998 S.W.2d 185 (Mo.App.1999); and Taylor v. Farmers Ins. Co., 954 S.W.2d 496 (Mo.App.1997). Plaintiffs emphasize that these cases highly favor a plaintiffs choice of forum absent fraudulent procurement, which occurs when the plaintiffs chosen forum-is unrelated to the cause of action, the plaintiffs residence, and the defendant’s office or residence. See, e.g., Taylor, 954 S.W.2d at 501. Plaintiffs also try to make a distinction between this case and Acapolon, which accords less deference to the plaintiffs choice of forum where the case is brought by a foreign national and in which the bulk of the operative facts took place in a foreign nation. 827 S.W.2d at 192. However, even though this case does not involve exactly the same facts that were present in Acapolon, its reasoning applies here rather than the cases Plaintiffs cite because, as the Supreme Court stated in Acapolon, a case which has predominant foreign elements is distinguishable from all other Missouri forum non conveniens cases. Id.

As to Plaintiffs’ argument regarding findings of fact and conclusions of law, Plaintiffs did not request that the trial court issue findings of fact and conclusions of law and thus the trial court was not required to do so. Rule 73.01(c). We find no basis for assuming that the trial court did not issue findings of fact and conclusions of law because the facts did not support its judgment. Rather, we assume that all fact issues upon which no specific findings are made shall be considered as having been found in accordance with the trial court’s result. Id.

Plaintiffs’ final argument that a jury in Missouri is better equipped to understand complex or technical issues than a Pana-manían judge also fails. Considering the number of factors that weigh in favor of dismissal and that the technical language used for computer programming will be difficult for anyone to understand, the trial court did not abuse its discretion in dismissing the action notwithstanding the complexity of the issues raised. Plaintiffs’ fourth point is denied.

The judgment is affirmed.

LAWRENCE E. MOONEY, P.J., and MARY K. HOFF, J., Concurs.

      . The record shows that 2 of the 112 plaintiffs are United States citizens living in Panama and 2 are United States residents. According to the parties’ briefs, however, one of the United States residents passed away in 2004.

      . Defendant Canada Development Investment Corporation was dismissed by Plaintiffs prior to this appeal.

      .We note that the record indicates some of the Canadian Defendants are not actually corporations but are instead divisions of corporations or predecessors of corporations. However, since their status as corporations has no bearing on our decision, we will refer to them as corporations for the sake of simplicity.

      . For instance, Judicial Code Article 259, Second Case, provides that in civil suits seeking reparation of harm and damages based on non-contractual liability, the judge of the place where the harm occurred is competent (or has the ability to assume jurisdiction). In addition, Articles 658 and 659 explain the procedure a plaintiff must follow to sue unregistered foreign corporations.

      . We note that Dr. Berrios mentions a Panama court decision in which a Panamanian court determined whether Panama had jurisdiction over a case that was previously dismissed from a court in the United States on the basis of forum non conveniens. Although the judge determined that the Panamanian court had no jurisdiction, the record contains an affidavit from Dr. Fabrega explaining that the reason the Panamanian court had no jurisdiction was because the plaintiffs failed to file the action in the province of Chiriqui,' where the injury occurred, and instead filed in the province of Panama. Viewing this evidence in the light most favorable to the trial court’s decision, we defer to the trial judge’s finding that this case is not dispositive of the issue of Panama’s availability.

      . We also note that Canadian Defendants, whose attorneys filed stipulations on their behalf stating they would honor a judgment of the Panama courts, also have no assets in the United States. Thus, Plaintiffs may be unable to attach their assets to a judgment in Missouri and could face the same difficulty collecting from Canadian Defendants in this jurisdiction as they would in Panama.

      . We acknowledge that at least one living Plaintiff is a United States national, but do not find that this fact lessens the applicability of Acapolon in light of the nationality of the other 100 plus Plaintiffs.

      . All references to Rules aré to Mo. R. Civ. P.2005.

      .Plaintiffs' post-argument motion to remand or, alternatively, to reverse the trial court’s ruling under Rule 84.14 is denied. Plaintiffs' motion to dismiss this appeal is also denied.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jason JAMISON, Appellant.
    No. ED 82695.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 10, 2005.

      Lisa M. Stroup, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Attorney General, Jefferson City, MO, for respondent.
   ROBERT G. DOWD, JR., Judge.

Jason L. Jamison (Defendant) appeals from the judgment upon his conviction by a jury of murder in the second degree, Section 565.021, RSMo 2000, and armed criminal action, Section 571.015, in the death of Jeron Hamilton (Victim). The trial court sentenced Defendant to two terms of thirty years’ imprisonment to be served concurrently. On appeal, Defendant argues the trial court erred in allowing the state to use a taped statement that was not provided to defense counsel to impeach a witness and in allowing a witness to testify about an uncharged crime. We affirm.

Defendant does not challenge the sufficiency of the evidence. Viewed in the light most favorable to the verdict, the evidence established that on December 1, 2001, Defendant was at the home of his girlfriend, Latasha Smith (Smith). Defendant and Smith sat on steps outside of the front door while Smith’s niece and nephews played in the front yard. Defendant told Smith to take the kids in the house. Smith told the kids to go inside while Defendant descended the steps. Defendant approached Victim and John Johnson (Johnson) who were walking down the street. Johnson noticed that Defendant was hiding a sawed-off shotgun in his shirt sleeve. Defendant asked Victim if he participated in a fight that occurred on the previous day in which Defendant was allegedly injured. Victim said that he did not know what Defendant was talking about. After Smith took the kids into the house, she followed Defendant down the street. Smith told Defendant, Johnson, and Victim to stop arguing. Smith turned and began walking away. Defendant said to Victim, “I think your buddy is one of the ones who did it.” Both Johnson and Victim replied: “Put that gun up. That gun don’t mean nothing.” In response, Defendant shot Victim. After hearing the gunshot, Smith ran to her house. Defendant ran past Smith and continued to run past her house. Victim died as a result of a gunshot wound to the head.

Upon hearing that he was a suspect in the case, Defendant turned himself in. At trial, Defendant testified that he did not shoot Victim. Defendant claimed he was not carrying a gun as he approached Johnson and Victim. Defendant claimed he asked them about why they “jumped him” on the previous day and in response, Victim replied, “I had my peoples knock you.” Defendant testified that as he began to walk away he heard a gunshot which caused him to run for his own safety. At the close of evidence, the jury returned a verdict of guilty of the lesser-included offense of murder in the second degree and armed criminal action. This appeal follows.

In his first point, Defendant argues the trial court abused its discretion in allowing the state to impeach Smith with information from her taped statement to police because the State failed to provide Defendant a copy of the tape during discovery in accordance with Rule 25.03. Defendant argues this violation restricted his ability to prepare an effective defense against Smith’s previous statements and ultimately resulted in fundamental unfairness. We disagree.

Before trial, defense counsel filed a request for discovery asking for the names of all persons the State intended to call as witnesses at any hearing or trial, including their written or recorded statements. The state provided defense counsel with a list of witnesses, which included Smith, but did not provide any written or recorded statement made by Smith. After the shooting, police questioned Smith about the incident and recorded her answers. A police report disclosed to Defendant mentioned this recording. At Defendant’s first trial, which resulted in a hung jury, Smith testified, but the tape was never used. At the retrial, the state again called Smith as one of its witnesses. During Smith’s testimony the prosecutor realized that her testimony had changed since the first trial. At that point, the prosecutor sought to impeach her as a hostile witness with prior inconsistent taped statements she made to the police. The defense attorney objected as follows:

MR. BASHIR: [defense counsel] This tape appeared right here, one minute from now. While they set up the rales of discovery, never gave defense a copy.
MS. BRYANT [prosecutor]: That’s—
COURT: Wait a second; one second.
MR. BASHIR: Has never given me a copy; she never used it in the last trial. And whatever she wants to, somehow, she wants the tape — but she has given all the answers, whatever she asked. I haven’t heard any contradictions so far. So how can she play something which I don’t know what does it contain?
COURT: What about this tape? Has he ever received the tapé?
MS. BRYANT: I don’t know. He never' — when I was talking to him at lunch, I mentioned the tape.
MR. BASHIR: Today.
MS. BRYANT: You know the tape is in the police report. You got discovery. You never sent me any blank tapes. You want to take a recess, you can listen to it.
MR. BASHIR: The tape was never mentioned in the last trial—
* * * *
THE COURT: If he didn’t have the tape, you can’t use the tape. Now, if you want to impeach your witness, something she said recently, and not through the use of the tape, if you didn’t give that to [defense counsel].
⅜ ⅜ ⅜ ‡
MS. BRYANT: Wait a minute. Just because I shouldn’t (sic) be penalized because he didn’t take it upon himself to come and get it. He was told about it.
THE COURT: If you’ve got some evidence that he was told to come and get the tape, then—
MS. BRYANT: Yes; the police report. It is in there.
(State retrieves police report; presents it at side bar.)
MR. BASHIR: Well, it’s in there, in the police report, but she never used it in the last trial. She never gave me a copy of it. How do I know what the tape contains, and the witness is alive and present, and that’s the point. How does she even get to play the tape? What— for what purpose?

The court asked Defendant for his general discovery request. Both parties continued to disagree about the discovery practice of providing recorded statements. The prosecuting attorney argued that defendants were responsible for sending a blank tape on which the recording could be copied. The defense attorney argued that this requirement only applied to video tapes, but not audio tapes. The court responded:

THE COURT: All right; here’s what I’ll do. I will allow you to impeach her, based on your information of what’s in the tape. I’m not going to allow the - tape to be used. Now, later on, if I discover the practice is somewhat different, then we’ll deal with that. But I’ll declare her a hostile witness. You may impeach her and ask her question about, did she say such-and-such on the tape. If she denies it right now, it’s going to rest at that. You won’t be able to play the tape until I’ve found out just what the practice is.

The state proceeded to impeach Smith with her taped statements. Smith testified that she did not recall telling the police on her taped statement that Defendant yelled at her, that no one was outside during the incident, that she and Defendant took five to ten steps away from Victim while arguing in the street, or that Defendant shot Victim. Smith admitted to previously saying that Johnson and Victim were standing down the street “minding their own business,” and that Defendant told her, “That’s the nigger who jumped me,” as he walked down the steps. Smith also recalled saying that she never thought that “Defendant would do something like this.” Defense counsel cross-examined Smith about her answers. Smith testified that on the day of the incident, a lot of people were outside. She further testified that after she intervened, Defendant stepped back and started walking away and then she heard a shot. Smith reiterated that she did not see Defendant shoot Victim.

If requested in writing by defense counsel, the state must disclose the written or recorded statements of the witnesses it intends to call at trial and must also disclose the substance of any oral statement made by the defendant along with the names of those persons who witnessed defendant making the statement. Rule 25.03; State v. Grant, 784 S.W.2d 831, 835 (Mo.App. E.D.1990). The purpose of this discovery rule is to grant the defendant a decent opportunity to prepare his case in advance of trial and avoid surprise. Grant, 784 S.W.2d at 835. Compliance with this rule is mandatory, not discretionary. Id. Appropriate sanctions for failure to make timely disclosure are left to the sound discretion of the trial court. State v. Myers, 997 S.W.2d 26, 33 (Mo.App. S.D.1999). Appellate courts will intervene only where a defendant shows that the failure to make a timely disclosure resulted in fundamental unfairness. Id. Fundamental unfairness turns on whether there was a reasonable likelihood that an earlier disclosure of the requested evidence would have affected the result of the trial. Grant, 784 S.W.2d at 835. Here, the state violated Rule 25.03. However, this failure to disclose did not result in fundamental unfairness because there was overwhelming evidence of Defendant’s guilt. At trial, Johnson testified that Defendant approached him and Victim while carrying “a big sawed-off shotgun” in his sleeve. Johnson testified that after the verbal confrontation between Johnson, Victim and Defendant, Defendant shot Victim and ran away. Johnson later picked Defendant out of a police line-up. There was no showing at trial that Johnson was a biased witness. Further, Smith’s trial testimony, unaided by the tape, indicated that after Defendant told her to take the kids inside, she believed Defendant was angry and was going to fight somebody. Smith also testified that she got in between Defendant and Victim and yelled at them to stop arguing. Smith testified that after she heard the gun shot, Defendant ran past her away from the scene of the crime. Finally, Defendant admitted that a gang beat him up and took twenty dollars from him. Defendant admitted that he confronted two “gang members” Johnson and Victim and used “harsh words” when asking why they beat him up on the previous day. Defendant admitted to telling his girlfriend immediately before approaching Johnson and Victim that he was going to fight somebody. Defendant also admitted that he was present at the scene of the crime. This testimony, taken together, presents overwhelming evidence of Defendant’s guilt.

Defendant relies on State v. Harrington, 534 S.W.2d 44 (Mo. banc 1976), and State v. Mease, 842 S.W.2d 98 (Mo. banc 1992) to argue that the state’s discovery violation caused fundamental unfairness. In Harrington, the state failed to disclose the defendant’s oral statements made to the Federal Bureau of Investigation until the day before trial. 534 S.W.2d at 46. The Court held that the denial of pretrial inspection of the defendant’s own statement describing the shooting as accidental constituted fundamental unfairness because the statement contradicted his trial theory of self-defense. Id. at 46-47. In Mease, a witness agreed to testify after granted immunity. 842 S.W.2d at 108. The prosecutor informed defense counsel of this agreement, but the. defense counsel did not attempt to depose the witness. Id. The court held that.the defendant was not denied meaningful discovery because he was aware of the witness’s prior statement and did not take steps to depose the witness. Id.

Here, the State argues that Defendant cannot show that he was surprised by the existence of the recorded statements to the police because the tape was mentioned in the police report. The reference to the tape ih the police report does not excuse the prosecutor’s failure to disclose the tapes. However, while the prosecutor clearly violated discovery rules by failing to disclose the tape, Defendant failed to prove that the late disclosure resulted in fundamental unfairness. Defendant could have requested to listen to the tape prior to Smith’s impeachment. Further, Defendant failed to prove Smith’s impeachment by her previously taped statement contradicted his trial theory that someone else shot the victim. During the impeachment, Smith denied saying that Defendant shot the victim. Smith admitted to saying that she was surprised that “Defendant would do something like this,” but on cross-examination defense counsel asked Smith to explain her statement. Smith replied that, “[she] was under the impression that he did it because of the detectives telling me.” Smith testified that during her taped statement she told the police that Defendant said, “That’s the nigger who jumped me,” as he walked down the steps and that she told her mom she thought that Defendant was going to fight someone. This testimony did not create fundamental unfairness for Defendant because these statements were consistent with Smith’s prior trial testimony that she thought Defendant was going to start a fight. Further, on cross-examination Smith reiterated that she heard the gunshot, but did not see Defendant shoot the victim. This was corroborated by Johnson, who testified Smith had her back to them and was on her way up the steps when the shot was fired. Thus, Defendant failed to prove that allowing the state to impeach Smith with her taped statements affected the result of the trial, especially considering the totality of the evidence, including Johnson’s eyewitness' testimony, which provided overwhelming evidence of Defendant’s guilt.

Defendant also relies on State v. Smothers, 605 S.W.2d 128 (Mo. banc 1980), and State v. Bradley, 882 S.W.2d 302 (Mo.App. S.D.1994) to argue he is entitled to relief. In Smothers, the state produced a tape recording of a witness at trial that was not previously disclosed to the defense counsel. 605 S.W.2d at 130-31. The Court held that the prosecutor’s failure to disclose the tape after the defendant’s written request violated discovery rules. Id. at 131. However, the court also held that the late disclosure did not result in fundamental unfairness or prejudice to the substantial rights of the defendant because the trial court allowed the defendant to listen to the tape prior to cross-examination. Id. at 132. Further, the defendant failed to prove that allowing the witness to testify affected the result of the trial. Id. at 133. In Bradley, the state disclosed five videotaped recordings in response to the defendant’s request for discovery as the only tapes the state intended to use at trial. 882 S.W.2d at 303-04. At trial, the state informed the defense counsel of the existence of a sixth tape. Id. at 304. This tape was admitted into evidence over defense counsel’s objections. Id. at 305. The Bradley court held that the trial court abiised its discretion in admitting this tape into evidence because the defendant was entitled to rely on the state’s representation that, only the five tapes produced would be used at trial. Id. at 308.

Here, like in Smothers and Bradley, the state failed to disclose a taped recording before trial. When a party has failed to comply with an applicable discovery rule, the court may order disclosure of the information, grant a continuance, exclude such evidence, or enter such other orders it deems just under the circumstances. Rule 25.16; State v. Wallace, 43 S.W.3d 398, 402 (Mo.App. E.D.2001). Here, unlike Bradley, the trial court restricted the use of the tape for impeachment purposes and did not admit the tape into evidence. In response to this ruling, Defendant did not ask for a recess to listen to tape or for a continuance at trial. Moreover, as previously discussed, the trial court’s decision in allowing the state to impeach Smith with her prior taped statements did not cause fundamental unfairness. Thus, the trial court appropriately acted within its discretion in excluding the tape from evidence. Point one is denied.

In his second point, Defendant argues the trial court plainly erred in allowing Johnson to testify that Defendant had sold him marijuana. Defendant argues that this testimony constituted an improper reference to another crime for which he was not charged, distributing a controlled substance, and thus, was unfairly prejudicial. We disagree.

At trial, the state called Johnson as a witness. Johnson testified about the events that transpired on the street, and about his role in identifying Defendant in a police line-up. Part of Johnson’s examination is as follows:

MS. BRYANT [prosecutor]:.... Did you know the person by the name of Jason Jamison [Defendant]?
JOHNSON: No.
MS. BRYANT: Had you had any interaction with him at all, before?
JOHNSON: Yes.
MS. BRYANT: And what was that?
JOHNSON: I bought some weed from him at one time.
MS. BRYANT: So you had seen him many times, or how many times?
JOHNSON: I would see him here and there.
MS. BRYANT: Here and there? Over the course of what, a year, weeks, or what?
JOHNSON: About two — about two something — about two or three months.
MS. BRYANT: Two or three months?
JOHNSON: Uh-huh.
MS. BRYANT: Now, do you see a person in the courtroom today that you saw sitting, when you were on the street, on Caroline [the street]?
JOHNSON: Yes I do.
MR. BASHIR: [defense counsel] I renew my objection. I renew my objection based on my pre-trial motion [to suppress Johnson’s identification of Defendant].
THE COURT: All right; overruled.

Johnson continued and identified Defendant. Later, Defendant testified on his own behalf and denied selling marijuana. On cross-examination, the state wanted to introduce evidence that Defendant had previously been arrested for drug possession to impeach Defendant’s testimony. The court sustained defense counsel’s objection that the prosecutor could not inquire about Defendant’s past drug offenses.

Defendant argues that Johnson’s testimony was neither logically or legally relevant to the second-degree murder or armed criminal action offenses for which he was on trial and that the trial court erred in allowing such testimony. Defendant’s counsel did not object to Johnson’s testimony at trial, so the issue was not preserved for appellate review. See State v. Campbell, 147 S.W.3d 195, 205 (Mo.App. S.D.2004). However, Defendant requests this court to review the alleged evidentiary error for plain error under Rule 30.20. In seeking plain error review, Defendant bears the burden of demonstrating plain error resulting in manifest injustice. State v. Kalagian, 833 S.W.2d 431, 434 (Mo.App.E.D.1992). Plain error review should be used sparingly and does not justify review of every alleged trial error that has not been properly preserved for appellate review. State v. Bolds, 11 S.W.3d 633, 638 (Mo.App. E.D.1999). Plain error review is limited to those cases where the alleged error so substantially affects the rights of the accused that a manifest injustice or miscarriage of justice would inexorably result if left uncorrected. State v. Hadley, 815 S.W.2d 422, 423 (Mo. banc 1991). A trial court has a broad discretion to admit and exclude evidence at trial, and error will be found only if this discretion was clearly abused. Bolds, 11 S.W.3d at 638.

Generally, evidence which tends to prove crimes other than the one charged is inadmissible. State v. Davis, 806 S.W.2d 441, 442 (Mo.App. E.D.1991). However, such evidence is admissible if it falls within a well-established exception to the general rule. State v. Clover, 924 S.W.2d 853, 855 (Mo. banc 1996). Evidence of an uncharged crime is admissible if it is logically and legally relevant. Id. Evidence is logically relevant where it has some legitimate tendency to establish directly the accused’s guilt of the charges for which he is on trial. Id. Evidence demonstrating the identity of the person charged with the commission of the crime is logically relevant. Id. Evidence is legally relevant where its probative value outweighs its prejudicial effect. Id.

Here, Johnson’s testimony is logically relevant because it demonstrated Johnson’s ability to identity the person charged with the crime. Defendant argues even if Mr. Johnson’s testimony is relevant as to identity, the court’s failure to intervene sua sponte and limit Johnson’s testimony resulted in unfair prejudice.

Defendant relies on State v. Bernard, 849 S.W.2d 10 (Mo. banc 1993), to argue Johnson’s testimony was not legally relevant and thus, was inadmissible. In Bernard, the state sought to admit testimony from four witnesses regarding prior sexual abuse committed by the defendant for which he was never charged. Id. at 18-19. The Court held the testimony of the four young men who said the defendant had them run naked in front of a car driven by the defendant was admissible in evidence under the common scheme or plan exception to the uncharged crime rule for the purpose of proving the identity of the wrongdoer. Id. at 19-20. For corroboration evidence to be of sufficiently increased probative value so as to outweigh its prejudicial effect, the charged and uncharged crimes must be so nearly identical and their methodology so unusual and distinctive that they resemble a signature of the defendant’s involvement in both crimes. Id. at 17.

Here, unlike Bernard, Johnson’s testimony demonstrated his ability to identify Defendant, and was not used to prove the identity of the wrongdoer by evidence of a common scheme or plan. Admission of Johnson’s isolated remark that he “bought some weed from [Defendant] at one time” did not unfairly prejudice Defendant or result in manifest injustice, especially considering the overwhelming evidence of Defendant’s guilt. Point two is denied.

The judgment of the trial court is affirmed.

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

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

      . While we have found this discovery violation is not reversible error based on the particular facts of this case, we do not condone the behavior of the prosecutor in failing to disclose the tape during discovery.


author: GLENN A. NORTON, Judge.

text:
    Samuel LOMAX, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84784.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 10, 2005.

      Deborah Daniels, Richard Starnes (co-counsel), Jefferson City, MO, for respondent.
    Michelle Rivera, St. Louis, MO, for appellant.
   OPINION

GLENN A. NORTON, Judge.

Samuel Lomax appeals the judgment denying his Rule 24.035 motion without an evidentiary hearing. We reverse and remand for an evidentiary hearing.

I. BACKGROUND

Lomax was chárged with two counts of domestic violence and one count of property damage. At the plea hearing, Lomax indicated that he had had sufficient opportunity to discuss his case with counsel, that he was satisfied that counsel was aware of all the information he needed to adequately advise and represent Lomax in the matter and that counsel had advised Lomax of all the aspects of the case, including his legal rights. Lomax told the court that he was satisfied with counsel’s services. He pled guilty to all counts. Lomax stated that he understood that he had the right to a jury trial, where he would be presumed innocent until proven guilty beyond a reasonable doubt, could confront the witnesses that testified against him and could subpoena witnesses to testify on his behalf. Lomax answered “no” when asked whether anyone had made any promises or threatened him in any way to induce him to plead guilty. The court accepted his plea after ensuring that Lomax understood all the questions asked of him and had no questions of his own.

Lomax filed a motion for post-conviction relief under Rule 24.035. He claimed that counsel was ineffective for coercing him to plead guilty “by telling Lomax that he would not take his case to trial until his legal fees were paid and that it was too late for him to withdraw from the case and allow Lomax to obtain alternative counsel.” Lomax contended that his inability to pay created an actual conflict of interest and that he would not have pled guilty if counsel had not pressured him to do so because he could not afford to go to trial. Lomax also claimed that counsel was ineffective for accepting payment of the legal fees from Lomax’s girlfriend — the victim of the domestic violence charges — and for thereafter acting in accord with her wishes to get Lomax out of jail sooner by pleading guilty instead of going to trial as Lomax wished. This too, Lomax alleged, created an actual conflict of interest.

The motion court took judicial notice of the court file and the transcript. In its findings of fact and conclusions of law, the court found that both of Lomax’s claims of ineffective assistance of counsel were clearly refuted by the record, citing Lo-max’s statements at the plea hearing. The court concluded that Lomax failed to demonstrate unrefuted facts entitling him to relief and failed to demonstrate prejudice. It denied the motion without an evidentia-ry hearing, and Lomax appeals.

II. DISCUSSION

We review the denial of a post-conviction motion under Rule 24.035 to determine whether the motion court’s findings of fact and conclusions of law were clearly erroneous. Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). The motion court’s findings and conclusions will be deemed clearly erroneous only if, after reviewing the record, this Court is left with the definite and firm impression that a mistake has been made. Id.

Lomax argues that the court erred by denying his ineffective assistance of counsel claim without a hearing because his responses to the court’s inquiries at the plea hearing were not specific enough to conclusively refute his allegations. We agree.

A movant is entitled to an evi-dentiary hearing on a motion for post-conviction relief only if: (1) he alleges facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of prejudiced the movant. Simmons v. State, 100 S.W.3d 143, 145 (Mo.App. E.D.2003). No hearing will be held if the record of the case conclusively shows that the movant is entitled to no relief. Rule 24.035(h). If the guilty plea proceedings directly refute that the movant’s plea was involuntary, then he is not entitled to an evidentiary hearing. Cain v. State, 859 S.W.2d 715, 717 (Mo.App. E.D.1993). To justify the denial of an evidentiary hearing on an ineffective assistance of counsel claim, the record must be “specific enough to refute conclusively the movant’s allegation.” State v. Driver, 912 S.W.2d 52, 56 (Mo. banc 1995). A negative response to a routine inquiry regarding whether any promises or threats had been made to induce a guilty plea is too general to encompass all possible statements by counsel to his client. Shackleford v. State, 51 S.W.3d 125, 128 (Mo.App. W.D.2001) (allegation of affirmative act of misinformation by counsel not refuted by statement that no promises or threats made to induce guilty plea); but see Martin v. State, 78 S.W.3d 197, 200 (Mo.App. W.D.2002) (allegation that counsel promised certain sentence refuted by statement that no promises had been made).

Lomax’s responses to the court’s routine inquiries at the plea hearing were too general to conclusively refute the allegation that counsel specifically told Lomax that he would not proceed to trial until his legal fees were paid and that it was too late for him to withdraw from the case and allow Lomax to obtain alternative counsel. Lomax’s admission that no promise or threats were made does not refute that counsel made this particular statement. See Shackleford, 51 S.W.3d at 128. Nor do Lomax’s general expressions of satisfaction with counsel conclusively refute the claims in his motion. See Royston v. State, 948 S.W.2d 454, 458 (Mo.App. W.D.1997). There is nothing in the record to specifically and conclusively refute the allegation in Lomax’s motion that counsel accepted payment of his legal fees from Lomax’s girlfriend and thereafter acted in accord with her wishes that Lomax plead guilty. Moreover, although Lomax indicated that he understood his right to a jury trial and that counsel had advised Lomax of his legal rights generally, the record does not contain any evidence that Lomax understood that he had the right to conflict-free representation.

These facts, if true, would entitle Lomax to relief. To prevail on a claim of ineffective assistance of counsel founded on a conflict of interest, the movant must show that an actual conflict of interest adversely affected counsel’s performance. Helmig v. State, 42 S.W.3d 658, 680 (Mo.App. E.D.2001) (citing State v. Chandler, 698 S.W.2d 844, 848 (Mo. banc 1985)); see also Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). “In order to prove a conflict of interest, something must have been done by counsel or something must have been forgone by counsel and lost to defendant, which was detrimental to the interests of defendant and advantageous to another.” Helmig, 42 S.W.3d at 680 (internal quotation marks omitted). If the movant proves that counsel had an actual conflict of interest affecting counsel’s performance, then prejudice is presumed. State v. Griddine, 75 S.W.3d 741, 745 (Mo.App. W.D.2002).

Here, Lomax alleged an actual conflict of interest that affected counsel’s performance. Although a defendant’s failure to pay his legal fees does not necessarily give rise to a conflict of interest, the allegations in this motion show that Lomax’s inability to pay created a divergence of interests between Lomax and counsel. According to Lomax, counsel told Lomax that he would not take the case to trial until his legal fees were paid and that it was too late for him to withdraw from the case and allow Lomax to obtain alternative counsel. Moreover, because Lomax could not pay himself, counsel allegedly accepted payment of the legal fees from Lomax’s girlfriend and thereafter pursued her interest in having Lomax plead guilty so that he could get out of jail sooner. Counsel’s alleged conduct was detrimental to Lo-max’s interest in that Lomax claimed he would not have pleaded guilty if counsel had not pressured him to do so because he could not afford a trial and because his girlfriend wanted him to plead guilty; rather, counsel’s alleged conduct was advantageous to counsel’s own interests and the interests of Lomax’s girlfriend. Having alleged facts that, if true, amounted to an actual conflict, prejudice is presumed.

Lomax alleged facts warranting relief that are not refuted by the record and he demonstrated prejudice. Thus, Lomax was entitled to an evidentiary hearing on his ineffective assistance of counsel claims. The denial of his motion without that hearing was clear error. Points granted.

III. CONCLUSION

The judgment is reversed, and the case is remanded for an evidentiary hearing.

CLIFFORD H. AHRENS, P. J. and NANNETTE A. BAKER, J. concurring.

      . Execution of Lomax’s sentence on one of the charges was suspended, and he was placed on probation. He received credit for time served on the other charges. His probation was later revoked, and at the sentencing hearing the court again examined Lomax regarding his plea counsel’s services. Lomax stated that he had had sufficient opportunity to discuss the case with counsel, that counsel had done all of the things that Lomax had asked him to do and had not done anything that Lomax had asked him not to do and that no promises or threats had been made to induce him to plead guilty.


author: PER CURIAM.

text:
    Dominic ROBBEN, Respondent, v. HAMPTON ENVELOPE COMPANY and American Home Assurance Company, Appellants.
    No. ED 85127.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 10, 2005.
    Nanci H. Martin, Evans & Dixon, L.L.C., St. Louis, MO, for Appellant.
    Gregory D. O’Shea, St. Louis, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Hampton Envelope Company and American Home Assurance Company (Employer) appeal from the final award of the Labor and Industrial Relations Commission (Commission) reversing the award of the administrative law judge (ALJ) and finding Employer liable for medical expenses, medical care to cure and relieve Claimant from the effects of his injury, and temporary total benefits associated with Claimant’s injury.

We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum for their information only, setting forth reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    Ernest S. WALTON, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 84868.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 10, 2005.
    Ellen H. Flottman, Columbia, MO, for appellant.
    Deborah Daniels, Karen L. Kramer, Evan J. Buchheim, Assistant Attorneys General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Movant, Ernest S. Walton, appeals from the judgment denying on the merits without an evidentiary hearing his Rule 24.035 motion for post-conviction relief. We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court’s judgment is based on findings of facts and conclusions of law that are not clearly erroneous. Rule 24.035(k). An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion for the use of the parties only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Katherine WANSLEY, Appellant, v. UNITED STATES POSTAL SERVICE and Division of Employment Security, Respondents.
    No. ED 85176.
    Missouri Court of Appeals, Eastern District, Division One.
    May 10, 2005.
    Katherine E. Wansley, Florissant, MO, Pro Se.
    Larry R. Ruhmann, St. Louis, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Katherine Wansley (“Claimant”), appeals from the judgment of the Labor and Industrial Relations Commission in favor of respondents, U.S. Postal Service and the Division of Employment Security, finding Claimant was ineligible for benefits from November 16, 2003 to June 12, 2004. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

      . Respondents' motion to strike Claimant’s brief and motion to dismiss the case is denied.


author: BOOKER T. SHAW, Judge.

text:
    Mark REYNOLDS, Appellant, v. Robin REYNOLDS, Respondent.
    No. ED 84923.
    Missouri Court of Appeals, Eastern District, Division One.
    May 10, 2005.
    Mark P. Reynolds, pro se.
    Mary Jane Browning, Jefferson City, MO, for respondent.
   BOOKER T. SHAW, Judge.

Mark Reynolds, (“Father”) acting pro se, appeals from the trial court’s judgment awarding sanctions and attorneys’ fees to Robin Reynolds (“Mother”). Father raises two points on appeal. First, Father claims the trial court erred in overruling his motion to disqualify the trial judge. Second, Father argues the trial court erred in entering judgment in Mother’s favor for sanctions and attorneys’ fees. We reverse and remand with instructions.

Mother and Father were divorced in 1998, and the decree awarded joint legal custody of their minor daughter to both parents, with primary physical custody awarded to Mother. Father appealed from that judgment, but this Court affirmed it in Reynolds v. Reynolds, 6 S.W.3d 183 (Mo.App. E.D.1999).

Subsequently, Father filed several post-judgment motions, including but not limited to, a motion for contempt against Mother and a motion to modify the judgment, specifically relating to the trial court’s award of custody. The trial judge assigned to hear the case, the Honorable Jeffrey Schaeperkoetter, recused himself from the case sua sponte on September 26, 2002. The court minutes indicate the case was then transferred to the presiding judge of Osage County, the Honorable Gael D. Wood, who reassigned Father’s case to the Honorable Robert D. Scholl-meyer on October 11, 2002.

Father filed a motion to disqualify Judge Schollmeyer on March 10, 2008. Father has failed to include this motion for disqualification in the legal file. On April 1, 2003, the court minutes reflect Judge Schollmeyer ruled, “Motion to disqualify sustained and heard. Hon. John Berkem-eyer requested to hear and determine case.” The court minutes do not indicate the case was transferred to Presiding Judge Wood prior to reassignment as it was after Judge Schaeperkoetter recused himself.

Judge Berkemeyer presided over Father’s case from April 17, 2003, through early January 2004, making several substantive rulings on Father’s various pleadings. On January 9, 2004, Father filed a motion entitled “Motion to Renew All Motions Pending Before This Court that Associate Judge John B. Berkemeyer Has Ruled On,” arguing Judge Schollmeyer had no authority to assign Judge Berkem-eyer to his case, and as a result, Father argued Judge Berkemeyer lacked jurisdiction to rule on his motions. Father argued any rulings entered by Judge Berkemeyer are null and void also requested the case be transferred to the Missouri Supreme Court for the assignment of a new judge to hear his motions. Father asked for a hearing on these issues.

Mother filed a motion for sanctions and attorneys’ fees against Father on April 15, 2004.The trial court held a hearing on Father’s motions. Judge Berkemeyer denied Father’s motions relating to his jurisdiction to hear the case, stating Father filed his motions' out of time. The trial court granted Mother’s motion for sanctions and attorneys’ fees and ordered Father to pay $5775.84. Father appeals.

Mother filed a motion to dismiss Father’s appeal because she alleges his brief fails to comply with Rule 84.04. This motion was taken with the case. As a pro se litigant, Father is bound by the same rules of procedure as a party represented by a licensed attorney. State ex rel. Morgan ex rel. Div. of Child Support Enforcement v. Okoye, 141 S.W.3d 410, 411 (Mo.App. W.D.2004). A pro se litigant’s substantial compliance with Rule 84.04 is mandatory, thus ensuring that the reviewing court does not act as an advocate for the party by speculating on facts and arguments that were not asserted. Id. While Father’s points relied upon are not in compliance with Rule 84.04(d), nor does he include a standard of review with respect to each point, we are able to glean Father’s legal arguments and therefore, we will review his points on appeal. Willis v. Most Worshipful Prince Hall Grand Lodge of Mo. & Jurisdiction, 866 S.W.2d 875, 877 (Mo.App. E.D.1993). Mother’s motion to dismiss is denied.

Father’s first point on appeal is dispositive. Father’s first point argues the trial court erred in overruling his motion to disqualify the trial judge and in refusing to hold an evidentiary hearing. The heart of Father’s argument is that Judge Ber-kemeyer should have held an evidentiary hearing on Father’s “Motion to Renew All Motions Pending before This Court that Associate Judge John B. Berkemeyer Has Ruled On” because.the case was assigned improperly. Father argues the improper assignment denies Judge Berkemeyer jurisdiction to rule on any motions pending before him.

Rule 51.05(e) governs reassignment of a case from a disqualified judge. If the parties have not stipulated to a particular judge hearing the case, then “the disqualified judge shall notify the presiding judge: (1) If the presiding judge is not disqualified in the case, the presiding judge shall assign a judge of the circuit who is not disqualified or request [the Missouri Supreme Court] to transfer a judge.” See also, Section 478.255.1, RSMo 2004.

Father relies upon Miller v. Mauzey, 917 S.W.2d 633 (Mo.App. W.D.1996) to support his position. In Miller, the trial court granted a timely filed motion for disqualification. Id. at 634. Since the trial judge was the only circuit judge in the Sixth Circuit, he assigned the case to an associate circuit judge. Id. Miller filed a motion for reconsideration of the assignment, which was denied. Id. The associate circuit court judge then sustained the respondents’ motions to dismiss Miller’s action. Id. Miller appealed, claiming, inter alia, the circuit court erred in assigning the case to the associate circuit judge. Id.

The Western District agreed, and found the circuit judge committed reversible error in assigning the case to the only other judge in the circuit. Id. at 635. After setting forth the proper procedure for assigning a case to another judge after disqualification relying upon Rule 51.05, the court went on to say, “[i]f the Supreme Court had intended to give a disqualified circuit court judge the power to personally assign a case to an associate circuit judge of his choosing, it would have said so.” Id. Moreover, the Miller court stated, “Regardless of the number of judges in a circuit, Rule 51.05 does not explicitly permit a disqualified judge to choose which judge to assign a case to if there is more than one.option.” Id.

Similar to the situation in Miller, it is clear from the record before us that when Judge Schollmeyer granted Father’s motion for disqualification he assigned the case to Judge Berkemeyer in violation of Rule 51.05. Judge Schollmeyer was not the presiding judge and was unable to assign the case to a judge of his choosing.

“Once an application to change the judge is properly filed, the court must grant the motion and is without jurisdiction to take any further action in the cause. Logically, this would include the action of assigning the case to [another] judge.” Miller, 917 S.W.2d at 635 (internal quotations -omitted). As a result, we find Judge Scholl-meyer was without jurisdiction to ■ assign the case to Judge Berkemeyer. It follows that since the assignment was improper, Judge Berkemeyer was without jurisdiction to rule on any of the motions prior to this appeal, including his grant of Mother’s motion for sanctions and attorneys’ fees. “Because the motions ... were ruled upon by a judge without jurisdiction, we [must] declare the order ... to be null and void.” Id. Father’s first point is granted. Because this point is dispositive, we need not address Father’s second point on appeal.

Based on the foregoing, we reverse the judgment of the trial court as being null and void for lack of jurisdiction. We remand this case to the circuit court with instructions to the presiding judge to assign a judge to hear this case in compliance with Rule 51.05(e)(1).

REVERSED AND REMANDED WITH DIRECTIONS.

GARY M. GAERTNER, SR., J., and SHERRI B. SULLIVAN, J., concur.

      . We also note Mother failed to file a respondent's brief in this matter. "While no penalty is prescribed for failure to file a brief, we are required to decide the case without the benefit of that party's authorities and points of view.” State v. Berry, 92 S.W.3d 823, 831 n. 1 (Mo.App. S.D.2003).


author: RONALD R. HOLLIGER, Judge.

text:
    SPENCER REED GROUP, INC., Respondent, v. William H. PICKETT, Appellant.
    No. WD 63909.
    Missouri Court of Appeals, Western District.
    May 31, 2005.

      Dake Thurman Greis, Kansas City, for Appellant.
    J. Brock Rowatt and Michael Berman, Kansas City, for Respondent.
   RONALD R. HOLLIGER, Judge.

Spencer Reed Group, Inc. (Spencer Reed), sued William H. Pickett, P.C. (“Law Firm”) for the balance of an unfulfilled contract price for the referral of any attorney for Law Firm’s employment. Law Firm raised the affirmative defense of material breach by Spencer Reed and now appeals a judgment in favor of Spencer Reed. Viewing the evidence in the light most favorable to the verdict, we find that (1) Spencer Reed had an obligation to refer only licensed attorneys to Law Firm under the contract; (2) Spencer Reed materially breached the contract when it referred an individual not licensed to practice law in any state; and (3) there was sufficient evidence to support a finding that Law Firm waived the term- requiring that Spencer Reed refer only licensed attorneys.

Affirmed.

Facts

Law Firm is a Kansas City law firm specializing in personal injury trial work. Spencer Reed is a personnel-staffing company, a division of which specializes in placing attorneys and legal personnel.

In September of 2002, an agent of Law Firm contacted Spencer Reed requesting assistance in finding an attorney to replace an associate attorney who had left the firm. Law Firm’s office manager filled out a Job Order form to aid Spencer Reed in its search for a potential candidate. The form indicated that the open position was for an “associate attorney.” The parties subsequently entered into a Guarantee and Fee Agreement that was signed by representatives of both parties.

In the Agreement, the parties agreed that Spencer Reed would refer a candidate to Law Firm for the open position. In return, Law Firm agreed to pay a fee to Spencer Reed that would be due only if and when Law Firm hired a candidate referred by Spencer Reed. The fee would be determined by a formula set forth in the agreement: 25 percent of the employee’s first year salary. Although there is no dispute that Law Firm requested Spencer Reed to refer an associate attorney, neither the Job Order nor the Guarantee Agreement indicate that the candidate referred must be admitted to practice law in Missouri or any other state.

In October of 2002, Spencer Reed referred Joseph Wormington, an unlicensed law school graduate, to Law Firm to interview for the position of associate attorney. Spencer Reed had no idea whether he was licensed and had not even asked. At trial there was much dispute as to when Law Firm learned that Wormington had no law license. Nothing on his resume at the time indicated whether he was licensed to practice law. Wormington testified at trial that he disclosed during the interview that he had failed the Kansas bar exam and was planning to take both the Kansas and Missouri bar exams in the future.

Needless to say, Spencer Reed’s screening process of Wormingtion was less than rigorous. Although Spencer Reed represented that it was in the business of placing attorneys for employment, it failed to elicit such basic information as to whether Wormington was licensed to practice law in any state. At trial Spencer Reed argued that any law school graduate met the definition of “associate attorney.” Setting aside for a moment the dispute as to when the parties were informed that Worming-ton had no license, one thing is clear: after the interview, Wormington, having never received a license to practice law, was hired by Law Firm as an associate attorney at a salary of $40,000 per year.

Law Firm claimed at trial that it first learned that Wormington was not licensed to practice law approximately two weeks later; however, the firm elected not to dismiss Wormington, but instead reduced his salary to $35,000 per year. After learning that Wormington had no license to practice and his salary had been lowered, Spencer Reed unilaterally reduced its fee to 25 percent of $35,000, or $8,750. Thereafter, Law Firm paid $2,000 to Spencer Reed. Spencer Reed invoiced Law Firm for the balance of its fee for placing an “associate attorney,” but Law Firm refused to pay any additional sum. Spencer Reed then sued for the balance. After a bench trial, a judgment was entered in favor of Spencer Reed for $6,750. Law Firm appeals.

Standard of Review

The standard of review for a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976): The judgment will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Neither party requested findings of fact and conclusions of law. Because the trial court did not make specific findings, the trial court is deemed to have made its findings in accordance with the decree entered, and its judgment will be affirmed under any reasonable theory supported by the evidence. R.J.S. Sec., Inc. v. Command Sec. Servs., Inc., 101 S.W.3d 1, 22 (Mo.App.2003).

Discussion

Law Firm argues on appeal that Spencer Reed, in referring an individual without a law license for an associate attorney position, failed to provide consideration triggering Law Firm’s obligations under the contract; breached the covenant of good faith and fair dealing; and materially breached the contract. Law Firm also argues that there is insufficient evidence to support the judgment and that the judgment is against the weight of the evidence.

Viewing the evidence in the light most favorable to the judgment, it is- clear that Spencer Reed materially breached the contract by referring a candidate who was not licensed to practice law. A material breach is one where the breach relates to a vital provision (i.e., material term) of the agreement and cannot relate simply to a subordinate or incidental matter. Patel v. Pate, 128 S.W.3d 873, 878 (Mo.App.2004).

Although denied at trial, Spencer Reed finally admitted at oral argument that their obligation under the contract to furnish candidates for the position of “associate attorney” was to furnish licensed law school graduates. The condition that any candidate referred to Law Firm be qualified as an attorney was a vital provision to the agreement and not a subordinate or incidental matter. Thus, Spencer Reed materially breached the contract when it referred a non-attorney as a candidate for employment as an associate attorney.

Spencer Reed argues, in the alternative, that Law Firm waived any condition that referred candidates be licensed attorneys. A party may waive any condition of a contract in the party’s favor, Bellos v. Winkles, 14 S.W.3d 653, 655 (Mo.App.2000), and that waiver may be implied from conduct. Howe v. Lever Bros. Co., 851 S.W.2d 769, 775 (Mo.App.1993). However, to rise to the level of a waiver, the conduct must be so manifestly consistent with and indicative of an intention to renounce a particular right or benefit that no other reasonable explanation of [the] conduct is possible. Id.

Spencer Reed claims that there was substantial evidence indicating that Law Firm agreed to waive any condition that candidates referred be licensed attorneys. The factual basis Spencer Reed points to in support of this contention is Wormington’s testimony that, during his interview, he revealed that he had failed the Kansas bar exam and was planning to take both the Kansas and Missouri bar exams at a later date.

In appeal of a judge-tried case, all fact issues upon which no specific findings were made by trial court are considered as having been found in accordance with result reached, and judgment will be upheld on any reasonable theory supported by evidence. Weatherwax v. Redding, 953 S.W.2d 162, 167 (Mo.App.1997). Despite our misgivings about Spencer Reed’s position that it is entitled to a placement fee even for furnishing an unlicensed attorney, our standard of-review prevents a conclusion by this court that Law Firm did not waive the breach by Spencer Reed. As a court of error, we must view the judgment in the light most favorable to the verdict and’ reverse only if the judgment is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. Evidence was presented that Law Firm was informed that Wormington was not a licensed attorney prior to hiring him. It is certainly a reasonable conclusion that by hiring Worm-ington notwithstanding, Law Firm waived the requirement.

Similarly, Law Firm’s argument that Spencer Reed breached the covenant of good faith and fair dealing must fail. Missouri law implies a covenant of good faith and fair dealing in every contract. RGB2, Inc. v. Chestnut Plaza, Inc., 103 S.W.3d 420, 422 n. 1 (Mo.App.2003). The party claiming breach of the implied covenant of good faith must present substantial evidence that it has been violated. Schell v. LifeMark Hosps. of Missouri, 92 S.W.3d 222, 230 (Mo.App.2002). Although it is clear that Spencer Reed materially breached the contract, a material breach does not necessarily equal a breach of the implied covenant of good faith and fair dealing. The covenant of good faith and fair dealing encompasses an obligation imposed by law to prevent opportunistic behavior, that is, the exploitation of changing economic conditions to ensure gains in excess of those reasonably expected at the time of contracting. Id. Though phrased in moralistic overtones, good faith does not import into contract law the negligence principles of tort law. Id.

The evidence presented at trial does not support a finding that Spencer Reed violated the implied covenant of good faith and fair dealing. There is no evidence that Spencer Reed attempted to intentionally undermine the fulfillment of the contract. That their actions under the contract were incompetent or even negligent is obvious, yet that does not mean that they acted in bad faith.

Law Firm’s final argument is that the judgment was against the weight of the evidence. We are naturally reluctant to reverse a judgment on that ground unless the evidence clearly indicates that the trial court reached the incorrect result. Bland v. Schubert, 941 S.W.2d 24, 26 (Mo.App.1997). Here, Law Firm presented no evidence from any person involved in the interview to rebut Wormington’s claim that he disclosed his lack of a license. That he also admitted that Law Firm’s senior partner seemed surprised when Wormington later (when being introduced as an attorney) denied that status does not constitute such evidence necessary for us to believe that the trial court’s judgment was against the weight of the evidence.

The judgment is affirmed.

JAMES M. SMART, JR., Presiding Judge, and LISA WHITE HARDWICK, ■ Judge, concur.