author: EDWIN H. SMITH, Presiding Judge.

text:
    Karen SUPER, et al., Appellants, v. Dr. David S. WHITE, et al., Respondents.
    No. WD 57356.
    Missouri Court of Appeals, Western District.
    May 23, 2000.

      Brian J. Klopfenstein, Kearney, for appellants.
    Timothy S. Frets, Shelley I. Ericsson, Michael Shaffer, Kansas City, for respondents.
    Before: EDWIN H. SMITH, P.J., and HOWARD and HOLLIGER, JJ.
   EDWIN H. SMITH, Presiding Judge.

Karen Super and Jacqueline Dawson appeal the summary judgment of the Jackson County Circuit Court for the respondents, Dr. David White and Correctional Medical Services, Inc. (CMS), on the appellants’ claims for damages for the wrongful death of Joseph Super (the decedent), who died on June 16, 1995, as a result of cirrhosis of the liver.

The appellants raise two points on appeal, Point I dealing with their claims against Dr. White and Point II dealing with their claims against CMS. In both points, they claim that the trial court erred in granting summary judgment against them because there was a genuine dispute of material facts as to requisite elements of their claims and that the respondents were not entitled to judgment as a matter of law.

We affirm.

Facts

CMS, a Missouri corporation authorized to do and doing business in Missouri, provided medical care and treatment for inmates incarcerated in the Missouri Department of Corrections (DOC) between November 1994 and January 1995. Dr. White was employed as a physician for CMS, working at the Central Missouri Correctional Center (CMCC) in Jefferson City. In November of 1994, while he was incarcerated at CMCC on his convictions for possession and manufacture of marijuana, the decedent tested positive for tuberculosis, a highly contagious airborne disease. As a result, on December 2, 1994, Dr. White, without examining the decedent, initiated a prophylactic antitubercu-lar therapy for him, which included the taking of isoniazid (INH) and vitamin B-6 tablets for six months.

On December 24,1994, the decedent was taken to the medical unit on an emergency basis complaining of right-side stomach pain and cramping of the legs. He was also running a temperature of 104 degrees. On December 29, 1994, the decedent was examined by Dr. White. The decedent complained to Dr. White that he was experiencing right-side stomach pain and coughing, which made the pain worse. Dr. White determined that the complaints were due to “gas pain.” No blood tests were taken at the time.

The decedent was assigned to the Kansas City Honor Center on January 25, 1995. Prior to his release to the honor center, an appointment was scheduled for him at the Kansas City Health Department on February 13, 1995. On two occasions, February 3,1995, and April 27,1995, the decedent received prescriptions for medications, including INH, from Dr. Patel of the Swope Parkway Health Center.

After his release from the honor center in April of 1995, the decedent returned home to Columbia, Missouri. He continued to experience problems, including a loss of energy, prompting him to see Dr. Marvin Mack at the Walk-In Medical Clinic in Columbia on June 2,1995, and June 5, 1995. On June 5, 1995, the decedent was directed by Dr. Mack to admit himself to the hospital at the University of Missouri. He admitted himself on June 5 and remained there until his death on June 16, 1995. An autopsy was performed, which indicated that he died of cirrhosis of the liver secondary to chronic active Hepatitis C.

On November 7, 1996, the decedent’s wife at the time of his death, Karen Super, and his daughter, Jacqueline Dawson, the appellants, filed their petition for damages for wrongful death, under § 537.080, against CMS, Dr. White, Dr. Patel, and Model Cities Health Corporation (d/b/a Swope Parkway Health Center), alleging, inter alia, that they were negligent in the diagnosis, treatment and care of the decedent, after he had tested positive for tuberculosis, and that such negligence caused or contributed to cause his death on June 16,1995.

On September 28, 1998, CMS and Dr. White filed their motions for summary judgment as to the claims against them, alleging that there was no genuine dispute as to material facts and that they were entitled to judgment as a matter of law. On October 7, 1998, Dr. Patel also filed a motion for summary judgment. More than four months later, on February 18, 1999, the trial court sustained the motions for summary judgment.

The appellants filed a “Motion To Reconsider The Court’s Finding Of Summary Judgment In Favor Of Defendants Dr. White And Correctional Medical Services With Suggestions” on April 2, 1999, alleging that, since the fifing of the motion for summary judgment by the respondents on September 28, 1998, discovery had continued in the case and produced more information favorable to their claims. That same day, the appellants also filed a “Motion To Reconsider The Court’s Finding of Summary Judgment In Favor of Defendant Dr. Patel With Suggestions.” On May 17, 1999, the trial court overruled the appellants’ motions to reconsider as to CMS, Dr. White and Dr. Patel and, pursuant to Rule 74.01(b), certified that “there is no just reason for delay” as to its summary judgments.

This appeal follows.

Standard of Review

Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment.

ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) (citation omitted). Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact; and (2) the movant is entitled to judgment as a matter of law. Id. at 380.

When considering appeals from summary judgments, the [cjourt will review the record in the fight most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.

Id. at 376 (citations omitted).

I.

The appellants raise two points on appeal, Point I dealing with their claims against Dr. White and Point II dealing with their claims against CMS. In both points, they claim that the trial court erred in granting summary judgment against them because there was a genuine dispute of material facts and the respondents were not entitled to judgment as a matter of law. In Counts I-IV of their eight-count wrongful death petition, filed pursuant to § 537.080, the appellants alleged, inter alia, that Dr. White and CMS were negligent in various respects in their diagnosis, care and treatment of the decedent after he had tested positive for tuberculosis, which negligence caused or contributed to cause his death. In their various complaints, they asserted that the respondents were negligent in administering the drug, INH, in response to the positive test of the decedent for tuberculosis. Because both points can be resolved, for the reasons discussed, infra, on the same issue, whether the respondents’ actions or inactions in administering INH caused or contributed to cause the decedent’s death, we review them together.

Under Rule 74.04, to be entitled to summary judgment, the respondents, as the movants, were required to show that: (1) there was no genuine dispute as to the material facts on which they relied for summary judgment; and (2) on these undisputed facts, they were entitled to judgment as a matter of law. Rule 74.04; ITT Commercial Fin. Corp., 854 S.W.2d at 380-81; Rhodelander v. Liberty Christian Fellowship, 6 S.W.3d 402, 405 (Mo.App.1999). If the movant for summary judgment is a defending party, as in the present case, a prima facie case for summary judgment may be established by one or more of the following means: (1) showing undisputed facts that negate any one of the claimants’ required proof elements; (2) showing that the claimants, after an adequate period of discovery, have not produced and would not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimants’ required proof elements; or (3) showing that there is no genuine dispute as to the existence of each of the facts necessary to support an affirmative defense properly pleaded by the movant. ITT Commercial Fin. Corp., 854 S.W.2d at 381. “Regardless of which of these three means is employed by the ‘defending party,’ each establishes a right to judgment as a matter of law. Where the facts underlying this right to judgment are beyond dispute, summary judgment is proper.” Id.

The appellants’ wrongful death actions are governed by § 537.080, which provides, in pertinent part:

1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be hable in an action for damages, notwithstanding the death of the person injured.

Under this statute, the right to sue for wrongful death is conditioned on the fact that the decedent could have maintained an action for damages for the injuries sustained had he or she survived. Campbell v. Callow, 876 S.W.2d 25, 28 (Mo.App.1994). Hence, for the appellants to succeed on their wrongful death actions against the respondents, based on their claims of medical malpractice, they were required to show the requisite elements of a medical malpractice claim. See Brickey v. Concerned Care of the Midwest, Inc., 988 S.W.2d 592, 596 (Mo.App.1999) {quoting Klaus v. Been, 883 S.W.2d 904, 907 (Mo.App.1994)) (setting forth the three elements of a medical malpractice claim: “ ‘(1) proof that defendant’s act or omission failed to meet the requisite standard of care; (2) proof that the act or omission was performed negligently; and (3) proof of a causal connection between the act or omission and the injury sustained by the plaintiff ”). In addition, of course, they were required to show that the respondents’ alleged negligence caused the decedent’s death. § 537.080; Morton v. Mutchnick, 904 S.W.2d 14, 16 (Mo.App.1995).

[I]n wrongful death actions, plaintiffs must establish that, “but for” the actions or inaction of the defendant, the decedent would not have died. This requirement exists because the term but for refers to an absolute minimum for causation; it is merely causation in fact.

Baker v. Guzon, 950 S.W.2d 635, 644 (Mo.App.1997) (citing Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 862 (Mo. banc 1993)).

Proof of causation requires expert medical testimony “[w]hen there is a sophisticated injury, requiring surgical intervention or other highly scientific technique for diagnosis.” Brickey, 988 S.W.2d at 596. As such, expert medical testimony is necessary to establish that the negligence of a- health care provider “has some causal connection with the injury except where the want of skill or lack of care is so apparent as to require only common knowledge and experience to understand and judge it.” Tillman by Tillman v. Elrod, 897 S.W.2d 116, 118 (Mo.App.1995). “ “When a party relies on expert testimony to provide evidence as to causation when there are two or more possible causes, that testimony must be given to a reasonable degree of certainty.’ ” Baker, 950 S.W.2d at 646 (quoting Tompkins v. Cervantes, 917 S.W.2d 186, 189 (Mo.App.1996)). “ ‘When an expert merely testifies that a given action or failure to act “might” or “could have” yielded a given result, though other causes are possible, such testimony is devoid of evidentiary value.’ ” Id. (quoting Tompkins, 917 S.W.2d at 189). Here, given the appellants’ allegations in their petition, expert medical testimony was obviously required to establish the requisite elements of their wrongful death claims.

In order to make a prima facie case for summary judgment, the respondents, in their motions for summary judgment, alleged facts which they asserted were undisputed and either negated the requisite elements of the appellants’ wrongful death claims, including causation, or demonstrated that they could not be proven. In order to make a case for summary judgment on the issue of causation, the appellants relied on the deposition testimony of the appellants’ own medical expert, Dr. Huber, who testified, in pertinent part:

Q. And that’s because you are not able to state within a reasonable degree of medical certainty the cause of death of Mr. Super, are you?
A. I don’t believe that’s true.
Q. What is your opinion, based upon a reasonable degree of medical certainty, as to the cause of death of Mr. Super?
A. Based upon the autopsy results, which I reviewed, I believe that Mr. Super’s approximate cause of death was his liver disease; namely, cirrhosis of the liver.
Q. So is it your opinion, based upon a reasonable degree of medical certainty, based upon all the information that you have reviewed in this case that the cause of death of Mr. Super was cirrhosis of the liver?
A. And subsequent complications thereof, yes.
Q. So I want to be specific and I want to make sure that I’m understanding you. Based upon all the information that you reviewed in connection with your review of this case, it is your opinion, based upon a reasonable degree of medical certainty, that the cause of death of Mr. Super was cirrhosis of the liver and complications relating and stemming therefrom?
A. That’s correct.
Q. You would agree with me, would you not, that the most likely cause of Mr. Super’s cirrhosis was chronic active hepatitis based upon a reasonable degree of medical certainty?
A. Yes.
Q. Okay. You mentioned specifically that the findings that relates to the liver. Did you see any evidence of macrono-dular cirrhosis on autopsy?
A. Yes.
Q. Would you agree with me that ma-cronodular cirrhosis is evidence of liver disease which [has] been going on for a long period of time, doesn’t develop within a matter of months or even a year?
A. Yes.
Q. It is your opinion, is it not, based upon a reasonable degree of medical certainty that INH does not cause cirrhosis of the liver?
A. That is correct.
Q. It’s certainly not your opinion, is it, that the administration of INH would aggravate chronic Hepatitis C?
A. It is my opinion that it would.
Q. It is your opinion that it would?
A. Yes.
Q. That’s right. So it would follow then, would it not, that you can’t say with reasonable medical certainty that any specific act done by Dr. White caused Mr. Super to die in June, would you agree with that?
A. I have to think about this. My answer to your question has to be that I cannot, because of lapses here in follow up, tell that - I can’t tell you what the ongoing medical problem was the day that he came in. Okay? There was no laboratory data to support the argument either way.
Q. In other words, you can’t make an opinion to a reasonable medical certainty tying Mr. Super’s death to any account by Dr. White, is that correct? Is that what you are saying?
A. My answer is that it is both possible and not possible that his starting the INH led to his death.
Q. And I understand that. And I guess what I’m asking is we have - in lawsuits we deal with proof as opposed to possibilities. And I’m asking you isn’t it correct to say that while you believe it may be possible, that you can’t testify under oath with reasonable medical certainty that an act that Dr. White did before January of 1994 caused Mr. Super to die in June of 1995 ... January of ’95 to June of ’95?
A. I agree.

Viewed in a light most favorable to the appellants, Dr. Huber’s deposition testimony established that, to a reasonable degree of medical certainty, the decedent’s death was due to long-term cirrhosis of the liver and complications relating to and stemming therefrom, which resulted from the pre-existing disease of chronic active Hepatitis C. It also established that, although the administration of INH could “aggravate chronic Hepatitis C,” it could not cause cirrhosis of the liver. It further established that, although it was “possible” that the starting of the INH led to the decedent’s death, it was not possible to determine, to a reasonable degree of medical certainty, that it did. At best, from the appellants’ perspective, their medical expert’s testimony would show that the respondents’ actions or inactions, with respect to the administration of INH, may have accelerated the decedent’s death from cirrhosis of the liver, but would not satisfy the “but for” test to succeed on a wrongful death claim, that the respondents’ actions or inactions caused or contributed to cause the decedent’s death. Baker, 950 S.W.2d at 646. An action cannot be brought under the wrongful death statute, § 537.080, where the cause of death was merely accelerated. Morton, 904 S.W.2d at 16-17 citing Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 681-83 (Mo. banc 1992)). As such, the respondents made a prima facie case for summary judgment on the appellants’ claims for wrongful death by alleging facts which demonstrated that the appellants could not establish with expert medical testimony that the alleged negligence of the respondents caused or contributed to cause the decedent’s death. ITT Commercial Fin. Corp., 854 S.W.2d at 381.

Once a prima facie case is made for summary judgment, “an adverse party may not rest upon the mere allegations or denials of the party’s pleading, but the response, by affidavits or as otherwise provided in this Rule 74.04, shall set forth specific facts showing that there is a genuine issue for trial.” Rule 74.04(e). In his or her response, the non-movant is required “to show — by affidavit, depositions, answers to interrogatories, or admissions on file — that one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed.” ITT Commercial Fin. Corp., 854 S.W.2d at 381. If such a showing is not made by the non-movant, judgment is proper for the movant. Id. at 382. A “genuine issue” exists where the record contains competent evidence of “two plausible, but contradictory, accounts of the essential facts.” Id. “A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous.” Id.

In their response to the respondents’ motions for summary judgment, specifically as to the allegations regarding the inability of the appellants to establish a causal connection between the respondents’ alleged negligence and the decedent’s death, the appellants continued to rely solely on the deposition testimony of Dr. Huber and the reasonable inferences drawn therefrom. Inasmuch as we found, supra, that this testimony was insufficient to establish the necessary element of causation with expert medical testimony, as required, it is also insufficient to establish a genuine dispute of material facts as to this issue so as to allow the appellants to survive summary judgment for the respondents.

Points I and II denied.

Conclusion

The judgment of the circuit court for the respondents on their motions for summary judgment as to the appellants’ claims for wrongful death is affirmed.

HOWARD and HOLLIGER, JJ., concur.

      . Dr. Ashok Patel, one of the defendants below, was also named as a respondent in the notice of appeal. However, the appellants do not raise any claims of error in their points relied on as to the trial court’s grant of summary judgment on their wrongful death claims against him. As such, we do not address whether the trial court erred in granting summary judgment to Dr. Patel on the appellants’ wrongful death claims against him. Missouri Rule of Civil Procedure 84.04 (1999); Coleman v. Gilyard, 969 S.W.2d 271, 274 (Mo.App.1998).

      . All statutory references are to RSMo 1994, unless otherwise indicated.

      . All rule references are to the Missouri Rules of Civil Procedure (1999), unless otherwise indicated.

      . Although not made a part of their response to the respondents' summary judgment motions, as required by Rule 74.04, the appellants did attach an affidavit from Dr. Huber to their “motion for reconsideration” of the trial court’s grant of summary judgment.
      Even if we were to consider the affidavit in determining whether the trial court was correct in granting summaiy judgment to the respondents, it was insufficient to establish a genuine dispute of material facts as to the issue of causation.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Missouri, Plaintiff/Respondent, v. Rayon DANSBERRY, Defendant/Appellant.
    No. ED 75541.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 23, 2000.

      David C. Hemingway, Asst. Sp. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Barbara K. Chesser, Asst. Atty. Gen., Jefferson City, for respondent.
   ROBERT G. DOWD, Jr., Judge.

Defendant, Rayon Dansberry, appeals from the judgment upon his convictions of three counts of robbery in the first degree, Section 569.020, RSMo 1994; and three counts of armed criminal action, Section 571.015, RSMo 1994, following a jury trial. Defendant was sentenced to three concurrent terms of seventeen years’ imprisonment on the robbery convictions to be served consecutively with three concurrent terms of eight years’ imprisonment on the armed criminal action convictions. The dispositive issue on appeal is Defendant’s claim that the trial court plainly erred in accepting the verdict because, during voir dire, the prosecutor informed the panel three times that Defendant’s co-defendant had admitted his guilt and had been or would be sentenced. We hold and the state concedes that this was prejudicial error. We reverse and remand for a new trial.

Viewed in the light most favorable to the verdict, the evidence adduced at trial showed the following. In the late evening of June 14, 1997, and in the early morning of June 15, 1997, Debbie McMurray, Penny Powell, and Caroline Kamberger were at Laclede’s Landing. The three women decided to leave and headed toward their car. When they arrived at the parking lot, Ms. Powell saw Defendant walking toward them. Defendant said, “hey.” Ms. Powell responded with “hello.” Defendant then held a gun to Ms. McMurray’s head and ordered the women against a wall. Thereafter, another man, Robert Barton, arrived and held a gun on Ms. Powell and Ms. Kamberger. Defendant and Barton ordered the women to put their purses on the ground, to hand over their jewelry, to get down on the ground, and put their faces “in the ground” or they would shoot. Defendant and Barton took the purses and jewelry and told the women not to move. Defendant and Barton ran off. The three women waited one or two minutes and then left to find the police.

On August 6, 1997, following a high-speed chase, Defendant was arrested. When police apprehended Defendant, they found a .380 gun under a car Defendant had stopped by while fleeing from police. That gun was identified as looking like the gun Barton used during the robberies in June.

At trial, Detective John Anderson testified that Ms. Powell picked Defendant out of a lineup. He also testified that Ms. McMurray picked Defendant out of a lineup, but stated she was not one hundred percent certain. Detective Anderson further testified that Ms. Kamberger did not pick anyone out of the lineup.

Defendant presented an alibi defense at trial. Following all of the evidence, instructions, argument, and deliberations, the jury returned verdicts of guilty. The trial court overruled Defendant’s motion for new trial. Defendant was sentenced to the custody of the Missouri Department of Corrections. This appeal follows.

The only allegation of error to be considered herein arises from certain statements made to the venire panel during voir dire. The trial court called two panels for voir dire. During the state’s examination of the first panel, the prosecutor posed the following questions:

[Prosecutor]: You’re also going to hear about another individual, this individual was involved in the robbery. His name is Robert Barton. Okay. And he lived, or lives in the 500 block of West Ebert in St. Louis. Does anybody recognize the name Robert Barton? ....
* * *
[Prosecutor]: .. .The last area I want to talk to you a little bit about is regarding Mr. Barton, Robert Barton. I expect him to testify and to admit his involvement in this incident. Okay. You will hear, I expect, what his sentence was. Or is going to be. And that there was no deal.
[Defense counsel]: Judge may we approach?
THE COURT: You may.
(Counsel approached the bench and the following proceedings were had:)
[Defense counsel]: Judge, I mean, the State’s getting into what’s going to be actually attested facts in the case, so I would object and ask the jury to disregard even this portion of what he’s saying without letting him finish the question.
[Prosecutor]: Judge, the only additional question I’m going to ask is simply of he’s admitted his guilt, he knows what his punishment is, are you going to automatically disbelieve anything he says.
THE COURT: Well, I’m going to sustain the objection, but you can ask the jury as a general proposition is there anybody here who would automatically disbelieve a witness because they pled guilty to a crime, but I’m sustaining your objection.
[Defense counsel]: And ask them to disregard.
[Prosecutor]: By sustaining the objection and making a comment, it appears as though you’re inferring there was a deal. There’s the inference there.
THE COURT: Implied.
[Prosecutor]: I should say, but there was a deal.
THE COURT: No, I don’t think it’s implying anything, one way or another. It could mean any number of things.
(The proceedings returned to open court.)
THE COURT: The objection is sustained. Ladies and gentlemen, please disregard the last question.
[Prosecutor]: Okay. Let me ask it to you this way. If someone comes in here and admits their involvement in the incident, okay, is there anyone in here going to automatically disbelieve that person? Comes in here and accepts responsibility on what he did and tells you what happened, is there anyone here going to automatically disbelieve them? Okay. I see no hands. Is anybody going to automatically believe them? Okay.
Can everyone in here judge his credibility just like any other witness? Okay. The same as any other witness that comes in here and testifies? Can everyone in here assure me that they will treat them just like any other witness? Okay.
[Prosecutor]: I expect that Mr. — low and behold, it’s not a shocking thing, he’s going to say there was some alcohol involved. Okay. Is anybody going to automatically disbelieve him just because he was drinking alcohol that night? Okay.
I expect that the witness is going to come in here and say I was smoking some marijuana that night. Is anybody going to automatically disbelieve him just because he says I was smoking marijuana that night? Okay.
.So you’re going to give him a fair shake just as you would any other witness and listen to their overall testimony and judge his credibility just like you would any other witness? Can everyone assure me of that? Okay.
I expect he’s going to also tell you that he has a prior conviction. Okay. For tampering. Which is driving in a stolen car. Is anybody going to automatically disbelieve him just because he has a prior conviction? If you do, raise your hand. Okay. I see one hand. It is Ms. Vaughn?
VENIREPERSON VAUGHN: Um-hmm
[Prosecutor]: You’re thinking that if a witness has a prior conviction there’s just no way you can believe anything they say?
VENIREPERSON VAUGHN: I’m saying just because he has a prior conviction there’s no way I can believe what he says?
[Prosecutor]: Right.
VENIREPERSON VAUGHN: Yeah.
[Prosecutor]: Okay. So because of the fact he has a prior conviction, you’re not going to be able to ever believe him?
VENIREPERSON VAUGHN: No, not because he has a prior conviction, if he was involved in what’s going on now, no, I wouldn’t believe him.
[Prosecutor]: Okay. So it’s not based upon a — the prior conviction?
VENIREPERSON VAUGHN: No.
[Prosecutor]: It’s based upon—
VENIREPERSON VAUGHN: He was involved in what was going on, and now he’s become a witness, of course I would feel he would say whatever he needs to say.
[Prosecutor]: He wouldn’t be the one we would like at — he would tell you what you want to hear. Let me just back up here. He’s admitted his involvement, he knows what his sentence is going to be. You’re thinking there’s under no situation that you could ever believe a word that comes out of his mouth, even though he hasn’t come in here and said one thing, you’re saying there’s no way you can believe anything he says?
VENIREPERSON VAUGHN: I wouldn’t believe everything he said, no.

During voir dire examination of the second panel, the following took place:

[Prosecutor]: The last area I want to talk to you about is, I expect you may hear from Robert Barton. Robert Barton has admitted—
[Defense counsel]: Objection, your Honor, may we approach?
THE COURT: You may.
(Counsel approached the bench and the following proceedings were had:)
[Defense counsel]: Judge, at this time I believe that the prosecutor basically just testified for Robert Barton, I would ask for a mistrial. This jury has been contaminated by this information. Barring that as a lesser remedy, I would ask that the prosecutor be ordered to not ask the question and the jury be admonished not to take that into account.
[Prosecutor]: Judge, I told them that I expect him to testify and he admitted his involvement in the crime.
THE COURT: Well, he has, but you know, there’s all kinds of things we know that are not in evidence. I’m going to overrule the request for a mistrial. I will sustain the objection, and I will admonish the jury to ignore the question. I take it you want to — you’re looking for assurances from the jury they would not refuse to consider evidence of a person who committed participation in the crime.
[Prosecutor]: As well the alcohol use.
THE COURT: Well, you can — you can ask them, you know, what you refuse to consider the evidence of a juror that absolutely categorically refuse to consider the evidence of a person who participated in the crime, you absolutely categorically for every circumstance refuse to consider the evidence of a witness, consumed alcohol before the events. You can ask those kinds of questions, but you can’t tell them Robert Barton’s going to testify.
[Prosecutor]: But I can certainly say he will testify as to what happened?
THE COURT: There’s really no point in it. All we want to do here is find out if the jury is going to follow the law. They don’t need to know what Robert Barton is going to testify to, they don’t know there’s such a person as Robert Barton.
(The proceedings returned to open court.)
THE COURT: Ladies and gentlemen, please disregard the last question. [Prosecutor], you may continue.

We review Defendant’s claim for plain error. As to the prosecutor’s first comment on the disposition of co-defendant’s case, Defendant’s objection was sustained and the panel was admonished as requested. Therefore, no error is preserved for appellate review. State v. Brasher, 867 S.W.2d 565, 569 (Mo.App. W.D.1993). As to the prosecutor’s second reference to co-defendant Robert Barton’s admission of involvement and sentence, Defendant failed to object and therefore, did not preserve the claim for appellate review. However, because we find and the state concedes that this claim facially establishes a substantial ground for believing that manifest injustice or miscarriage of justice has resulted, we grant plain error review. State v. Boyd, 954 S.W.2d 602, 607 (Mo.App. W.D.1997). Improper references to the disposition of a co-defendant’s case have been found to rise to the level of plain error. State v. White, 952 S.W.2d 802, 805 (Mo.App. E.D.1997); State v. Jordan, 627 S.W.2d 290, 293-94 (Mo. banc 1982).

As a general rule, it is reversible error to allow the state to admit evidence or even disclose to the jury that a co-defendant has been convicted or pled guilty to the charges. State v. Lingar, 726 S.W.2d 728, 735 (Mo. banc 1987). However, the Missouri Supreme Court has recognized an exception to this general rule in State v. Borden, 605 S.W.2d 88 (Mo. banc 1980), holding that, although evidence of a co-defendants’ related criminal disposition could not be used as substantive evidence to prove his guilt or innocence, it could be used by the state to preemptively rehabilitate a testifying co-defendant who it anticipated would be subject to impeachment attempts by the defendant on the basis that the co-defendants’ testimony against him was influenced by the disposition in the related case. Borden, 605 S.W.2d at 90-91. This exception has limitations. See Jordan, 627 S.W.2d at 294.

In Jordan, a prosecutor, apparently believing in good faith that two co-defendants would testify, revealed the disposition of the co-defendants’ related case during voir dire. Id. at 292. However, the two co-defendants did not testify at the trial claiming the Fifth Amendment. Id. Whether or not the defendant’s objections, as made, preserved the points for review was questionable, so the Jordan court invoked plain error review finding that the evidence of the defendant’s guilt was not overwhelming. Id. at 292-293. The Jordan court explained that the exception to the general rule does not apply in situations where the co-defendant does not take the stand as a witness for the state and give the defense an opportunity to explore through cross-examination the circumstances leading to the conviction or plea-bargain agreement. Id. at 294.

The present case is factually similar. Here, the prosecutor, acting in good faith, anticipated the testimony of co-defendant Robert Barton. As in Jordan, during voir dire, the prosecutor commented on the disposition of the co-defendant’s case and later that co-defendant did not testify claiming his Fifth Amendment right. As in Jordan, co-defendant Robert Barton did not take the stand as a witness for the State and give the defense an opportunity to cross-examine Robert Barton. Although the issue was not preserved for review, the evidence against Defendant was not so overwhelming to overcome the prejudice to Defendant’s right to a fair and impartial jury. The State concedes that the evidence against Defendant was not overwhelming. Only one of the victims positively identified Defendant. One of the victims identified Defendant but could not be sure. One of the victims could not identify him. Moreover, Defendant presented an alibi defense at trial.

Given that the present case and Jordan are indistinguishable, we reverse Defendant’s conviction and remand this cause for a new trial. Because the judgment must be reversed and remanded, we do not consider the other points of error, as they may not arise on retrial. Defendant’s motion for remand is denied as moot.

The judgment is reversed and the cause is remanded for a new trial.

CRANE, P.J., and SULLIVAN, J., concur.

      . As to the prosecutor's third comment, we note this was a new venire panel, and the prosecutor never revealed the disposition of the co-defendant’s case. Moreover, the trial court sustained the objection and admonished the jury to disregard the statement.


author: ROBERT G. DOWD, Jr., Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Thomas D. HALBROOK, Appellant.
    No. ED 74788.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 23, 2000.

      Craig A. Johnston, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Greg A. Perry, Asst. Atty. Gen., Jefferson City, for respondent.
   ROBERT G. DOWD, Jr., Presiding Judge.

Halbrook appeals from the hearing court’s order denying his application for unconditional release under Section 552.040, RSMo Cum.Supp.1998. Halbrook contends the hearing court erred in denying his application for unconditional release. Halbrook argues the hearing court erred by not making specific findings on whether he suffered from a mental disease or defect at the time of the hearing. This court issued its original opinion on July 27, 1999, remanding the case for a specific finding whether Halbrook suffered from a mental disease or defect. The Supreme Court accepted the State’s application for transfer and has retransferred the case to this court for reconsideration in light of its recent decision, State v. Revels, 13 S.W.3d 293 (Mo. banc 2000). We must follow the Supreme Court’s recent decision and we now affirm.

In February 1995, Halbrook was charged with the crimes of assault in the second degree, Section 565.060, RSMo 1994; armed criminal action, Section 571.015, RSMo 1994; robbery in the first degree, Section 569.020, RSMo 1994; and resisting arrest, Section 575.150, RSMo 1994. At the time of his arrest, he was evaluated and diagnosed as having the mental disease of bipolar disorder with psychotic features. In March 1995, he pled not guilty by reason of mental disease or defect excluding responsibility to those charges and was committed to the custody of the Missouri Department of Mental Health.

Halbrook applied for an unconditional release in January 1998. At the hearing, Dr. Bruce Harry, Halbrook’s treating psychiatrist since July 1997, testified concerning Halbrook’s present mental state. Pri- or to the hearing, the court granted an independent psychiatric evaluation performed by Dr. Daniel Birmingham. Both doctors concluded Halbrook was in remission. Dr. Harry defined remission as “a person who has a mental illness [but] is not having any symptoms and has not had any for an extended time.” The hearing court denied Halbrook’s application for an unconditional release.

Halbrook contends the hearing court erred by denying an unconditional release without making a specific finding on whether or not he had a mental disease or defect at the time of the hearing. We disagree.

The standard of review of the denial of an unconditional release is the same as that applied to appellate review of judgments following a bench trial. State v. Tooley, 875 S.W.2d 110, 114 (Mo. banc 1994). The judgment of the trial court will be upheld unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carrón, 536 S.W.2d 30, 32. (Mo. banc 1976).

Halbrook sought an unconditional release under subsections 5 through 9, and 20 of Section 552.040, RSMo Cum.Supp. 1998. Subsection 9 requires the court to make specific determinations and findings when granting an unconditional release. Revels, at 295. Subsections 5 through 9, and 20 of Section 552.040 do not require the court to make specific findings when denying an unconditional release. Id.

Furthermore, Halbrook failed to request specific findings. Rule 73.01(a)(3), now Rule 73.01(c), requires the request for specific findings to be made on the record “before the introduction of evidence at trial or at such later time as the court may allow.” When neither party requests specific findings of fact, we can consider all factual issues as being decided in accordance with the result reached by the hearing court. Revels, at 296; State v. Tooley, 875 S.W.2d 110, 111 n. 1 (Mo. banc 1994).

There is no requirement that the hearing court make specific findings that an insanity acquitee is suffering from a mental disease or defect before denying an unconditional release, unless findings are requested in accordance with Rule 73.01(c). Revels, at 296. The hearing court was not required to make specific findings in this case, and thus did not erroneously declare or apply the law.

The denial of unconditional release is affirmed.

KAROHL, J., and BLACKMAR, Sr. J., concur.

      . The order is appealable under Section 512.020, RSMo 1994. State v. Montague, 510 S.W.2d 776, 777 (Mo.App.1974).


author: ULRICH, Judge.

text:
    Deborah A. (Kelling) WEAVER, Respondent, v. Brian R. KELLING, Appellant.
    No. WD 57159.
    Missouri Court of Appeals, Western District.
    May 23, 2000.

      David Keith Holdsworth, Liberty, for appellant.
    Patrick David Beeman, Liberty, for respondent.
    Before LAURA DENVER STITH, P.J., ULRICH, J. and SMART, J.
   ULRICH, Judge.

Brian Kelling appeals from the judgment of the trial court allowing his ex-wife, Deborah Weaver, to relocate with their three minor children from Missouri to Texas where Ms. Weaver’s husband had accepted a job. Mr. Kelling also appeals the trial court’s judgment denying his cross motion to modify custody, visitation and support. The trial court’s judgment granting permission for Ms. Weaver to move ■with the children to Texas is vacated and the case is remanded back to the trial court for further action consistent with this opinion.

Facts

Mr. Kelling and Ms. Weaver were divorced on February 21, 1995. The court awarded the parties joint legal custody of their three minor children with Ms. Weaver receiving primary physical custody and Mr. Kelling receiving visitation rights pursuant to the party’s joint custody agreement. On November 12, 1997, Ms. Weaver filed a Motion to Modify Visitation Schedule, seeking to change the visitation schedule from one overnight every weekend to alternating weekends with one non-overnight evening during the week. Ms. Weaver remarried in April 1998, and soon thereafter on May 11, 1998, filed her first amended motion to modify visitation schedule. In her motion, she sought to change the visitation schedule and additional child support.

On September 18, 1998, Ms. Weaver’s new husband was offered and accepted a promotion requiring him to transfer to Texas. On October 15, 1998, Ms. Weaver filed a motion for temporary removal of the children from Missouri, seeking to gain a court order granting her permission to relocate the children to Texas. Mr. Kell-ing filed his motion to dismiss the motion for temporary removal of children from the state and motion to quash on October 21, 1998. He filed his answer and cross motion to modify child custody and support on November 20,1998.

The trial court entered the first amended judgment and order modifying the decree of dissolution on April 23,1999, which ordered, among other things, that Ms. Weaver retain primary physical custody of the parties’ children and permitted Ms. Weaver to relocate with the children to Texas. This appeal followed.

Relocation

The trial court’s judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence or erroneously declares or applies the law. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). “The party seeking to relocate shall have the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child.” § 452.377.9, RSMo Cum.Supp.1998. In determining whether to grant the custodial parent’s motion to remove a child from the state, the paramount concern is the best interest of the child. Puricelli v. Puricelli, 969 S.W.2d 289, 296 (Mo.App. E.D.1998). With regard to a motion for permission to remove a child from the state of Missouri, the courts employ a four-factor test to determine if the move serves the best interest of the child: (1) whether the prospective advantages of the move will improve the general quality of life for the custodial parent and the child; (2) the integrity of the custodial parent’s motives in relocating; (3) the integrity of the noncustodial parent’s motives for opposing the relocation, and the extent to which it is intended to secure a financial advantage with respect to continuing child support; and (4) the realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is permitted. Buschardt v. Jones, 998 S.W.2d 791, 796 (Mo.App. W.D.1999); McElroy v. McElroy, 910 S.W.2d 798, 803 (Mo.App. E.D.1995). A parent requesting removal of children out-of-state is not entitled to an order permitting removal just because the parent asks for one. Newell v. Rammage, 7 S.W.3d 517, 524 (Mo.App. W.D.1999). Each case must be decided on its particular facts, with the welfare of the child remaining the primary concern. Buschardt, 998 S.W.2d at 796. Missouri courts presume that a child’s frequent and meaningful contact with both parents is in the child’s best interests. Murray v. Rockwell, 952 S.W.2d 350, 353 (Mo.App. W.D.1997).

In this case, the trial court found that “[Ms. Weaver’s] husband has accepted a job opportunity with his employer and, consequently, it is in the children’s best interests to allow Petitioner to remove the minor children from the State of Missouri to the State of Texas.” Although the trial court is not required to set out specifically the factors it relied upon in granting Mother’s motion to relocate, where the court is silent as to which factors it considered, the trial court is presumed to have considered all the evidence and made its award in the best interests of the children based on consideration of the relevant statutory factors, unless the record indicates otherwise. Edmison ex rel. Edmison v. Clarke, 988 S.W.2d 604, 608-9 (Mo.App. W.D.1999).

The court’s stated reason for authorizing the children’s move to Texas with their mother was because her present husband has obtained new employment there. This reason, by itself, does not fully comport with the four factors required in determining whether such move is in the best interest of the minor children. Although Ms. Weaver’s motion did not seek a change of custody, the children’s move to Texas with Ms. Weaver substantially effects the temporary custody of the children with Father during visitation. When an appellate court reviews the trial court’s custody decision, the reviewing court, if convinced that the trial court abused its discretion in awarding custody by failing to consider the relevant statutory factors, should remand the case back to the trial court so that the factors can be considered in deciding the custody issue. Id. at 609. This approach is appropriate when the trial court has failed to apply established factors in determining if a custodial parent’s proposed relocation is in the best interest of the children.

In this case, nothing in the record indicates that the trial court employed the four-factor test to determine if the relocation serves the best interest of the child. Without more articulated findings of fact regarding the four factors for removal, this court cannot rule that the move was in the best interest of the children. Newell, 7 S.W.3d at 524. The judgment is vacated and the case is remanded back to the trial court for findings, consistent with this opinion, in determining the best interest of' the children.

LAURA DENVIR STITH, P.J. and SMART, J. concur.

      . Section 452.377, RSMo Cum.Supp.1998, became effective on August 28, 1998, prior to Ms. Weaver’s motion for removal.


author: LAURA DENVIR STITH, Judge.

text:
    Wendell Patrick BRYAN, Guardian of the Estate of Denise Bryan, and Wendell Patrick Bryan, Appellants, v. Franklin POGUE, et al., Respondents.
    No. WD 57834.
    Missouri Court of Appeals,' Western District.
    May 23, 2000.
    Bruce R. Bartlett, St. Louis, for appellants.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondents.

      Before Presiding Judge VICTOR C. HOWARD, Judge JOSEPH M. ELLIS and Judge LAURA DENVIR STITH.
   LAURA DENVIR STITH, Judge.

. Plaintiff-Appellant, Wendell Patrick Bryan, for himself and as guardian of the estate of Denise Bryan, his wife, appeals the trial court’s entry of judgment in favor of Defendants-Respondents, Missouri State Highway Patrolman J.P. Lysaught and the Missouri State Highway Patrol, on their motion for summary judgment. Plaintiff claims that the trial court erroneously interpreted Section 270.010 RSMo 1994, which provides that a sheriff or other officer who improperly discharges his duties under that section shall be “hable on his bond.” The trial court held that this statute constitutes a limited waiver of the official immunity doctrine only to the extent of the officer’s bond, and where, as here, the officer has no bond and is not required by law to have one, then the statute provides no basis for liability and the official immunity doctrine applies to protect him from liability for his discretionary official acts. We concur with the trial court’s interpretation of the statute, and affirm the grant of summary judgment.

I. FACTUAL AND PROCEDURAL HISTORY

The factual underpinnings of this case are set out in the previous opinion of this Court in this matter, Bryan v. Lysaught, 963 S.W.2d 403 (Mo.App. W.D.1998) (“Bryan I”), and we refer the reader to that case for a fuller factual discussion. As relevant to this appeal, we note only the following basic facts:

On December 4,1990, Denise Bryan was driving from Columbia, Missouri, to her home in Marshall, Missouri. Ms. Bryan was employed as a travel agent at Summit Travel in Columbia at the time. At approximately 7:13 p.m., Ms. Bryan collided with a cow in the northbound lane of Highway 65, approximately two miles south of Marshall. She was then hit in the rear by a vehicle operated by James Chitwood. Ms. Bryan suffered severe and permanent injuries as a result of this accident.

Wendell Patrick Bryan, Ms. Bryan’s husband, was named guardian of Ms. Bryan’s estate and initiated a lawsuit against Franklin Pogue, James Chitwood, the Saline County Sheriffs Department, Highway Trooper J.P. Lysaught, and others. Mr. Bryan also filed a loss of consortium claim. The Missouri Highway Patrol and Trooper Lysaught are the only remaining defendants in this action.

Discovery revealed that, on December 4, 1990, at approximately 6:40 p.m., 33 minutes prior to Ms. Bryan’s accident, Trooper Lysaught was advised by Troop A radio dispatch that an accident had occurred on Highway 65, involving a car driven by Garret and Phoebe Jones and a cow. Trooper Lysaught arrived at the scene of the initial accident by 6:45 p.m. Based on his interview with the Joneses and inspection of the automobile, Trooper Lysaught determined that the initial accident was caused by a “short-horned red” cow belonging to Franklin Pogue. Trooper Ly-saught said that he searched for the cow in the vicinity of the accident, but he could not find the cow. He remained at the scene and “worked” the accident for 30 minutes, and drove up and down Highway 65 in search of the cow, but still did not see it. Ultimately, he left the scene in order to transport the Joneses to a Con-cordia High School basketball game.

Upon arriving in Concordia, Trooper Lysaught was advised by Troop A radio dispatch that another accident had occurred on Highway 65. This accident occurred a few hundred feet away from the location of the Joneses’ accident. According to the police report, the second accident occurred at 7:13 p.m. and involved Denise Bryan, a short-horned red cow, and another automobile. The police report indicates that Trooper Lysaught arrived at the scene of Ms. Bryan’s accident at 7:34 p.m. According to the police report, nine cows were wandering loose in the immediate vicinity of Ms. Bryan’s accident. Eight of the cows were owned by Franklin Po-gue.

On September 9, 1996, Trooper Ly-saught filed a motion for summary judgment. On January 16,1997, the trial court entered summary judgment in his favor, stating that “Lysaught complied with the provisions of Section 270.010 RSMo and did not violate his duty under that statute because he looked for any cattle running at large and tried to determine if any cattle were at large.” The court found that, having attempted to fulfil his duty, Trooper Lysaught was entitled to official immunity as to how he performed that duty, in that the duty imposed by Section 270.010 was a “discretionary” one. The trial court also found that the Missouri Highway Patrol is an agency of the State and protected by sovereign immunity. It then granted summary judgment to Trooper Lysaught and the Highway Patrol.

Bryan I reversed the January 16, 1997 grant of summary judgment, finding that a genuine issue of material fact existed regarding whether the trooper fulfilled his statutory duty under Section 270.010. If not, then, the court held, although the trooper’s exercise of his duty to locate and restrain the cow was a discretionary function, and therefore protected under the official immunity doctrine, Section 270.010 partially waived that immunity by providing that an officer is liable to the extent of his bond. Id. at 406-07. Stating that under the statute, “by implication, an officer cannot be held liable in excess of his bond,” Bryan I remanded for further proceedings.

On September 20, 1999, following Bryan I, the trial court again granted summary judgment in favor of Trooper Lysaught. The court found that, as Trooper Lysaught was not required to file a bond under Section 43.140, and had not done so voluntarily, the statutory waiver of official immunity to the extent of the trooper’s bond did not apply, and the trooper could not be hable for the injuries sustained by Mr. Bryan. This appeal followed.

II. STANDARD OF REVIEW

Appellate review of the propriety of summary judgment is de novo. Williams v. City of Independence, 931 S.W.2d 894, 895 (Mo.App. W.D.1996). We view the record in the light most favorable to the party against whom summary judgment was entered, affording that party ah reasonable inferences that may be drawn from the evidence. Id. We will affirm the grant of summary judgment if we determine that no genuine issues of material fact exist and the movant has a right to judgment as a matter of law. Id.

III. LEGAL ANALYSIS

Mr. Bryan raises two related points on appeal. First, he claims that the trial court erred in construing the language in Section 270.010 that an officer is “liable on his bond” to mean that an officer cannot be hable if he or she has not obtained a bond. He also argues that to interpret the statute to allow an officer to escape liability by not obtaining a bond would render the protection intended to be provided by the statute illusory, for one could avoid liability merely by not obtaining a bond.

Section 270.010 states in relevant part:

It shall be unlawful for the owner of any animal or animals of the species of horse, mule, ass, cattle, swine, sheep or goat, in this state, to permit the same to run at large outside the enclosure of the owner of such stock, and if any of the species of domestic animals aforesaid be found running at large, outside the enclosure of the owner, it shall be lawful for any person, and it is hereby made the duty of the sheriff or other officer having police powers, on his own view, or when notified by any other person that any of such stock is so running at large, to restrain the same forthwith, and such person or officer shall, within three days, give notice thereof to the owner, if known, in writing, stating therein the amount of compensation for feeding and keeping such animal or animals and damages claimed, and thereupon the owner shall pay the person, or officer, taking up such animal or animals a reasonable compensation for the taking up, keeping and feeding such animal, or animals, and shall also pay all persons damaged by reason of such animals running at large, the actual damages sustained by him or them; provided, that said owner shall not be responsible for any accident on a public road or highway if he establishes the fact that the said animal or animals were outside the enclosure through no fault or negligence of the owner.... Any failure or refusal on the part of such officer to discharge the duties required of him by this section shall render him liable on his bond to any person damaged by such failure or refusal, which damages may be sued for and recovered in any court of competent jurisdiction.

Sec. 270.010 RSMo 1994 (emphasis added). The essence of Mr. Bryan’s argument is that, if the legislature had wanted to limit an officer’s liability to a specific amount, it would have used more direct language, such as “an officer will be hable only up to the amount of bond filed by the officer.” By using indirect language, “the officer will be liable on his bond,” the legislature simply meant to make it clear that the failure to adequately perform the officer’s duty would constitute a breach of that duty and the injured party would be able to sue the officer for the amount of the bond; it did not intend to state that the injured party could.not sue for other monies too if there was no bond or if the bond was too low. In support, Mr. Bryan notes that Section 537.610 RSMo, which contains a partial waiver of the sovereign immunity of the State, specifically lists a limit to the amount of money as to which immunity is waived. By implication and by applying the principle that statutes should be read in pari materia with other statutes on similar subjects, he suggests that because the legislature thereby showed it was aware of the language necessary to limit its liability to a specific amount, yet chose not to use that language here, it must not have intended that an officer would be hable only to the amount of his bond, but rather just that he could be sued on his bond.

We do not agree that the mention of a specific dollar limit to the State’s express waiver of sovereign immunity in Section 557.600 has any relevance in determining the meaning of the language used by the legislature in Section 270.010 concerning an officer’s being liable on a bond. In the latter case, the legislature simply chose to take a different approach than it took in regard to sovereign immunity. Rather than setting a specific upper dollar limit of liability in Section 270.010 itself, it chose to state in that statute that the limit of an officer’s liability will be the amount of his or her bond. Sec. 270.010. This makes sense, for under Missouri’s official immunity doctrine, an officer would not normally be liable for a discretionary act at all, even if it were negligently performed. If the officer has a bond, however, then an officer could be held accountable to an injured party without violating the principles governing the official immunity doctrine, for the purpose of that doctrine is to eliminate the fear of personal liability that would otherwise:

‘hang over public officials as they make judgments affecting the public safety and welfare.’ [Green v. Denison, 788 S.W.2d 861, 865 (Mo. banc 1987)]. Without this immunity, the public interest ‘will inevitably suffer from the too complacent attitude thus engendered.’ [Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985) ] (quoting Smith v. Berryman, 272 Mo. 365, 199 S.W. 165, 167 (Mo. banc 1917)).

Bachmann v. Welby, 860 S.W.2d 31, 33 (Mo.App. E.D.1993).

However, if an officer were made hable for amounts greater than the bond he or she had obtained, then all the concerns which are intended to be avoided by the official immunity doctrine would apply. It thus makes sense that the legislature limited the officer’s liability to only the amount of his bond. Moreover, because different officers are required by other statutes to have bonds in different dollar amounts, it was reasonable for the State to use the more general language that an officer is “hable on his bond” rather than to set out a specific dollar amount as to which immunity was waived, for imposing liability to the extent of the officer’s bond would take into account any type of officer with a duty under the statute and that officer’s respective bond requirement.

Mr. Bryan next argues that the trial court’s interpretation of the statute fails to give effect to the legislature’s purpose in enacting the statute, that is, maintaining safety on the highways in Missouri, in that it would permit a Missouri trooper such as Trooper Lysaught to escape liability under Section 270.010 simply by failing to obtain a bond. Thus, Mr. Bryan asserts, the legislature must have intended that every officer be liable, even if the officer did not obtain a bond. And, the logical limit of that liability would be the actual damages suffered by the injured party. We disagree.

As discussed above, to impose liability on an officer beyond the bond obtained by the officer would contravene the principles underlying the official immunity doctrine by making the officer personally liable for his exercise of a discretionary function. Nothing in Section 270.010 suggests that the legislature intended such a result, and we decline to imply such an abrogation of this important doctrine from language which, on its face, states that immunity is waived only “on his bond.” Moreover, we note that, if the legislature had intended that an officer be held liable for the amount of actual damages suffered, rather than for the amount of his or her bond, it could and would have said so, as it did when discussing the liability of the owner of the animals causing damage. The legislature there stated that the owner would be liable for “the actual damages sustained by him or them,” and placed no limit on that amount. Sec. 270.010. When discussing the officer’s liability for failing to meet his or her duty under the statute, however, the legislature did not say the officer was hable, as is the owner, for “the actual damages sustained,” or that the officer was personally liable. Rather, it states that the officer is liable “on his bond.” Thus, we find that under the plain language of the statute an officer’s liability under Section 270.010 is limited to the amount of his or her bond.

Finally, we note that we do not here face a situation in which Missouri statutes required an officer to obtain a bond yet the officer or his supervisors failed to do so, and do not address whether, in such a case, liability could be imposed at least to the minimum amount of the bond which the law had required the officer to obtain. Here, it appears to be conceded that no statute required Officer Lysaught to obtain a bond, and that the Patrol did not obtain one for him. If that is the case, then there is no fault on his part in not having a bond, and no reason to imply a waiver of his official immunity where the statute does not require a bond. Had the legislature intended all officers to obtain bonds and to be subject to liability to the extent of such bonds, it could have said so, in the same way that Section 43.140 requires that certain Patrol supervisors obtain a bond in a set amount. It did not do so here.

In sum, an officer is liable only on his bond; here Trooper Lysaught had no bond and was not required to have one. Accordingly, the official immunity doctrine applies, and we concur with the trial court that summary judgment was proper on Plaintiffs claim against Trooper Lysaught. The judgment is affirmed.

Presiding Judge VICTOR C. HOWARD and Judge JOSEPH M. ELLIS concur.

      . We note that the State argues that we should not reach the issues raised on appeal as to the meaning of “liable on his bond” because Bryan I already held that this language means that an officer is liable only to the extent of his bond, and that ruling is the "law of the case”. Mr. Bryan responds that this aspect of Bryan I was only dicta, had not been briefed, and should not be binding here, citing cases such as Bandy v. State, 847 S.W.2d 93, 94 (Mo.App. W.D.1992). Even if we were to agree that the law of the case doctrine does not apply, or that an exception to it exists here, it would not assist Mr. Bryan, for we find that Mr. Bryan’s arguments on appeal as to the meaning of “liable on his bond” are not well taken. For this reasons, we proceed directly to that issue, and therefore do not further address the State’s law of the case argument.

      . Section 537.600.1(1) deals with injuries resulting from the negligent use of motorized vehicles. Section 537.600.1(2) deals with the dangerous condition of an entity's public property that causes injury.

      . Section 43.140 sets the bond requirement for certain members of the Highway Patrol. The supervisor’s bond is set at $20,000.00 and the "major, director of radio, each member assigned to duty in the department of finance and statistics and each member assigned to duty in the department of supplies and equipment” are required to be bonded in the amount of $10,000.00. Sec. 43.140 RSMo 1994. Section 57.020 requires that every sheriff "give bond to the state in a sum not less than five thousand dollars nor more than fifty thousand dollars.” Sec. 57.020 RSMo 1994.

      . See Bachmann, 860 S.W.2d at 33 (under the official immunity doctrine, officers are not personally liable in tort for injuries resulting from negligent performance of their discretionary acts or omissions).


author: JAMES M. SMART, Jr., Judge.

text:
    ALEXIAN BROTHERS OF ST. LOUIS, INC., d/b/a Alexian Brothers Hospital, Appellant, v. DEPARTMENT OF SOCIAL SERVICES, DIVISION OF MEDICAL SERVICES, Respondent.
    No. WD 57453.
    Missouri Court of Appeals, Western District.
    Submitted Feb. 3, 2000.
    Decided May 23, 2000.

      Terry C. Allen, Jefferson City, for appellant.
    Richard S. Basile, Jefferson City, for respondent.
    Before LAURA DENVIR STITH, P.J.; JAMES M. SMART and ROBERT G. ULRICH, JJ.
   JAMES M. SMART, Jr., Judge.

This case concerns issues related to the jurisdiction of the Administrative Hearing Commission under § 208.156.4, RSMo 1994. Alexian Brothers Hospital of St. Louis, Inc., (“Alexian”) appeals the denial of its claim for reimbursement under the Federal Medicaid Act. We remand for dismissal for lack of jurisdiction.

Since before 1990, Alexian has been an authorized Medicaid provider under Missouri’s participation in the Federal Medicaid Act, 42 U.S.C. § 1896 et seq.(1992). Among the services provided by Alexian are psychiatric care services. Medicaid reimbursements to authorized providers are administered by the Division of Medical Services of the Missouri Department of Social Services (“DMS”).

Prior to January 1, 1990, health care providers participating in the Missouri Medicaid Program received reimbursements from DMS on the basis of a per diem rate. Effective January 1, 1990, in response to what it considered to be a great surge in psychiatric care costs, DMS placed a cap on the per diem reimbursement rates for certain inpatient psychiatric services. Pursuant to 18 C.S.R. 70-15.010(15), those psychiatric services were reimbursed at the lower of the hospital’s Title XIX per diem rate or an inpatient psychiatric per diem of $277.00. The rate was adjusted for inflationary factors, but the cap still remained below what the hospital contended was the reasonable cost of providing care.

In October of 1992, Alexian filed a petition with the Administrative Hearing Commission (“AHC”), challenging the calculation of the daily rate. Alexian sought reimbursement for the period beginning October 2, 1992. Alexian contended, inter alia, that DMS’s rate plan violated 42 U.S.C. § 1396(a)(13)(A)(1992), known as “The Boren Amendment.” The Boren Amendment requires that reimbursement rates be “reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards.... ” See also 42 C.F.R. § 447.253(b)(l)(1992).

The AHC made findings of fact in the case, but determined that it lacked jurisdiction to grant relief. On judicial review, the circuit court held that the cap set forth in 13 C.S.R. 70-15.010(15) violated the Boren Amendment to the Federal Medicaid law, and also violated the “reasonable cost” reimbursement provision of § 208.152, RSMo 1990. The court ordered DMS to reimburse Alexian for the losses caused by the cap since October 1, 1992. That decision was affirmed by this court, in Missouri Dep’t of Soc. Servs., Div. of Medical Servs. v. Alexian Bros, of St. Louis, Inc., 930 S.W.2d 439 (Mo.App.1996) (“Alexian I”). Thereafter, in 1997, Alexi-an filed a second case with the AHC, seeking additional retroactive payments for the period between January 1, 1990, through October 1,1992.

The Department of Social Services (“Department”) moved to dismiss the second action on the ground that the claims were barred by the doctrine of res judicata. In September 1998, the AHC, pursuant to 1 C.S.R. 15-6.450(4)(C), granted the Department’s motion, concluding that the second petition was barred by the doctrine of res judicata. Alexian sought judicial review. On May 25, 1999, the circuit court entered its judgment in favor of the Department. Alexian appeals.

In its first point on appeal, Alexian contends that res judicata is not applicable because the earlier case, Alexian I, involved different facts, different rates of Medicaid reimbursement, different rules and regulations, separate and different periods of time, and was not based on the same cause of action. In its second point, Alexian argues that the circuit court erred in holding that, because the regulation imposing the cap was no longer in effect at the time Alexian filed this action with the AHC on January 7,1997, the court and the AHC lacked jurisdiction of Alexian’s claim.

We turn initially to the jurisdictional issue. The circuit court held that because the offending regulation had already been withdrawn three months before Alexian filed its case with the AHC, the AHC had no jurisdiction. Alexian claimed jurisdiction under § 208.156.4. That section authorizes AHC jurisdiction ' over those claims brought by a person “aggrieved by any rule or regulation promulgated by the department of social services or any division therein.... ” § 208.156.4, RSMo 1994. The court held that because there was no then-existing regulation which had caused Alexian to be aggrieved, the AHC had no jurisdiction to entertain the claims of Alexian for reimbursement.

Alexian contends on appeal that the court erred in that § 208.156.4 does not limit claims to those lodged against an existing rule or regulation. Alexian points out that the word “existing” is not in the statutes, and argues there is no reason for such a limitation to be inferred. The Department, in response, argues that Alexian overlooks the fact that there is a distinction between a challenge to an agency rule and a challenge to an agency decision. The Department suggests that § 208.156.4 is designed to create a forum for a challenge to an agency rule which aggrieves a citizen, and that § 208.156.2 and § 208.156.8 are designed to create a window of opportunity for challenging an agency decision. The Department argues that the distinction between an agency ruling and an agency decision appears in Missouri Health Care Ass’n v. Missouri Dep’t of Soc. Sens., 851 S.W.2d 567 (Mo.App.1993). The court in that case drew a distinction between a challenge to a rule, and a challenge to a decision, by suggesting that the task is whether the action seeks a declaration concerning a “statement of policy or interpretation of law of future effect on unnamed and unspecified persons or facts,” or whether the action involves a determination based on specific facts and persons. Id. at 570. The court said that the former instance involves an agency rule, and the latter instance involves an agency decision. Id.

The same distinction was echoed in Missouri Dep’t of Soc. Sens., Div. of Medical Servs. v. Great Plains Hosp., Inc., 930 S.W.2d 429 (Mo.App.1996). Noting that § 208.156.8 differentiates Department “decisions” from “regulations,” and noting further that the time limitation of subsection 8 applies only to departmental “decisions,” that provision would not apply to a challenge to a regulation under § 208.156.4. Id. at 439. Alexian suggests that Great Plains Hospital constitutes helpful authority for Alexian because in that case Great Plains Hospital was allowed to proceed against the rate determination for the fiscal years 1990, 1991 and 1992. The court held that the claims were not time barred because the thirty-day limitation period did not apply in cases challenging the validity of an existing regulation. Id. We disagree with Alexian’s interpretation. We do not think that the court intended to imply that challenges to withdrawn regulations were not subject to the thirty-day limitation. What Alexian overlooks is that the regulation in question, 13 C.S.R. 70-15.010(15), became effective in 1990 and remained in effect throughout the applicable period in Great Plains until it was withdrawn following the decision in Great Plains. In this case, in contrast, the regulation was withdrawn three months before Alexian filed its action with the AHC. Accordingly, Great Plains provides no support for Alexian’s argument in this regard.

If there were otherwise any doubt in this regard, that doubt was removed in Missouri Department of Social Services v. NME Hospital, Inc., 11 S.W.3d 776 (Mo.App.1999). In that case, a group of hospitals filed claims in 1996 with DMS seeking reimbursement of the deficiency between the amount they received under the cap invalidated in Great Plains and the amount they would have received if the invalid cap had not been applied. Id. at 779. The claims were denied by DMS. Id. The hospital then filed a petition with the AHC. The AHC exercised jurisdiction under § 208.156.4 and decided that the hospitals were entitled to additional reimbursements. Id. On judicial review, the circuit court reversed the AHC, holding that the AHC did not have subject matter jurisdiction to hear the hospital’s claim. Id. On appeal, this court reviewed the matter of the AHC’s jurisdiction as to claims of Medicaid reimbursements. The court noted that § 621.055, which creates jurisdiction over Medicaid provider cases, indicates that the AHC may hear cases arising under subsections 2, 3, or 4 of § 208.156. Id. at 780. The court found no jurisdiction under subsection 2 because the time limit for filing a claim for an adjustment to a paid claim is eighteen months from the date of the payment. Id. at 781. It was conceded by the hospitals that their claims for additional reimbursements were untimely. Id. Because subsection 3 applies only to claims related to denial of participation in programs, the only issue before this court was whether the statutes created jurisdiction in the AHC pursuant to subsection 4. This court, in addressing this issue, noted that the hospitals in that case, unlike the hospitals in Great Plains, did not challenge an existing regulation imposing the cap. Id. at 780. The regulation had been withdrawn based on Great Plains before the claims were filed. Id. The hospitals were seeking additional reimbursements over what they had actually received in prior rate periods. The court recognized the distinction, already mentioned above, between an agency rule and an agency decision. Id. The court held that the hospital claims sought review of a DMS decision — the denial of the claims for reimbursement — not claims seeking to declare invalid the rule as a matter of future policy. Id. The court held that therefore subsection 4 did not apply and the AHC had no jurisdiction. Id. at 781. The court in NME rejected the arguments asserted herein by Alexian.

The case before us is governed by NME. Here, the agency decisions were based on the invalid regulation, yet they were, nevertheless, agency decisions because they involved a specific claim for reimbursement as to specific facts, dates, and parties. Because the invalid regulation was already no longer operative, Ale-xian could not receive the benefit which the Great Plains hospitals received from the fact that they were also challenging the regulation itself.

Because the issue of jurisdiction is dis-positive, we need not address the issue of res judicata. Accordingly, the judgment of the circuit court and the decision of the AHC are vacated and the case is remanded to the AHC for dismissal of the case due to lack of jurisdiction.

LAURA DENVIR STITH and ULRICH, JJ., concur.


author: MARY K. HOFF, Judge.

text:
    Catherine M. JONES, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 75568.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 23, 2000.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for appellant.
    Eugene 0. Howard, St. Louis, for respondent.
   MARY K. HOFF, Judge.

The Director of Revenue (Director) appeals a judgment granting Catherine M. Jones’ (Licensee) petition for limited driving privileges pursuant to Section 302.309.3 RSMo Cum.Supp.1997. We reverse.

The evidence supports finding the following facts. On May 31, 1993, the Director suspended licensee’s driving privileges pursuant to Section 302.505 RSMo Cum.Supp.1992 for driving with an excessive blood-alcohol content at the time of an automobile accident on May 16, 1993. The Director reinstated licensee on August 30, 1993. On March 24,1995, licensee pleaded guilty to two charges of assault and one charge of vehicular manslaughter arising from the accident. Almost three years after her felony convictions, the Director notified licensee that her driving privileges would be denied for five years, effective April 1,1998. The notice further informed licensee that she “may be eligible for reli-censing” after March 24, 2000, thereby making the disqualification retroactive to the date of conviction.

After receiving the Director’s notice, licensee filed a Petition for Review and Limited Driving Privileges pursuant to Sections 303.311, 536.110 et seq. and 302.309.3(6)(b). Her petition was submitted on the administrative record, the written submission of the Director and argument by the parties. The circuit court denied her Petition for Review but, thereafter, granted licensee’s application for limited driving privileges on November 19, 1998.

In the sole point on appeal, Director argues that the circuit court erred in granting licensee limited driving privileges under Section 302.309.3(6)(b) because it lacked jurisdiction where: (1) licensee was convicted of a felony involving the use of a motor vehicle which made her ineligible for a limited driving privilege under Section 302.309.3(5)(b); (2) licensee’s driving privilege was never revoked and she had not served two years of revocation or disqualification following the manslaughter conviction; and, (3) licensee failed to present evidence to support a finding that she had not been convicted of a drug or alcohol related offense during the preceding two years and that she was no longer a threat to public safety. We review, in accord with Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976), an appeal from a circuit court judgment on a petition for review pursuant to Section 302.311 RSMo 1994. Silman v. Director of Revenue, 880 S.W.2d 574, 576 (Mo.App. S.D.1994). We view the evidence in the light most favorable to the judgment entered by the circuit court. Mills v. Director of Revenue, 964 S.W.2d 873, 874 (Mo.App. E.D.1998).

The issue is whether licensee is eligible for limited driving privileges pursuant to Section 302.309.3(6)(b). The Director is precluded from issuing a driver’s license to a person who has been convicted of involuntary manslaughter while operating a motor vehicle in an intoxicated condition for five years from the date of such conviction. Section 302.060(10). However, such a person may apply for limited driving privileges pursuant to Section 302.309. The pertinent subdivision states:

Except as provided in subdivision (6) of this subsection, no person is eligible to receive hardship driving privilege whose license has been suspended or revoked for the following reasons:
(b) A conviction of any felony in the commission of which a motor vehicle was used;
(c) Ineligibility for a license because of the provisions of subdivision (1), (2), (4), (5), (6), (7), (8), (9), (10) or (11) of section 302.060[.]

Section 302.309.3(5)(b)-(c) (Emphasis added). When consulting subdivision (6), we find (6)(b) applicable:

A circuit court or director may, in the manner prescribed in this subsection, allow a person who has had such person’s license to operate a motor vehicle revoked where that person cannot obtain a new license for a period of five years, as prescribed in subdivision (10) of section 302.060, to apply for limited driving privileges pursuant to this subsection if such person has served at least two years of such disqualification or revocation. Such person shall present evidence satisfactory to the court or the director that such person has not been convicted of any offense related to alcohol, controlled substances or drugs during the preceding two years and that the person’s habits and conduct show that the person no longer poses a threat to the public safety of this state.

We address Director’s last argument because we find it dispositive. The Director argues that the licensee “presented no evidence that she had not been convicted of an alcohol- or drugrelated offense during the preceding two years and the she was no longer a threat to the public safety.” Section 302.309.3(6)(b) provides in relevant part:

Such person shall present evidence satisfactory to the court or the director that such person has not been convicted of any offense related to alcohol, controlled substances or drugs during the preceding two years and that the person’s habits and conduct show that the person no longer poses a threat to the public safety of this state.

Section 302.309.3(6)(b) (Emphasis added). Licensee responds that the case was submitted to the circuit court on the pleadings, the administrative record, the written submission of the Director and arguments by the parties. In fact, the Directors’ Objection To Issuance Of Hardship Driving Privilege/Motion To Dismiss included “Exhibit A,” which was an Affidavit by the custodian of records for the Missouri Department of Revenue, DWI Division. The custodian certified copies of the administrative record of the Director’s decision in licensee’s case, including copies of her driving record. Licensee argues that her driving record “established that [she] had not been convicted of any alcohol or drug-related driving offenses during the two years preceding her application for limited driving privileges.” (Emphasis added). It is undisputed that no additional evidence was produced by either party.

The language of subdivision (6)(b) imposes a burden on the licensee to present evidence to support a finding that: (1) she has not been convicted of any drug or alcohol related offense in the preceding two years; and, (2) her habits and conduct show that she no longer poses a threat to the public safety of this state. The entire evidence before the circuit court consisted of the pleadings, licensee’s driving record, the director’s notice letter of a five-year disqualification and her 1995 record of convictions. Licensee’s driving record indicated no alcohol or drug related driving convictions subsequent to the 1993 accident. However, there was no evidence to support a finding that she had no non-driving convictions related to alcohol or drugs. The statutory language is not restricted to conviction of any drug or alcohol related driving offenses in the preceding two years. Subdivision (6)(b) requires evidence to support a finding that not only has she had no alcohol or drug related driving convictions in the preceding two years, but also that she has had no convictions “of any offense related to alcohol, controlled substances or drugs within the preceding two years[.]” Moreover, there must be evidence to support a finding that licensee’s habits and conduct show that she is no longer a threat to the public safety of this state. The record before the circuit court contains no evidence to support finding the absence of all possible convictions and licensee’s habits and conduct no longer pose a threat to public safety. Thus, the judgment of the circuit court is against the weight of the evidence and cannot stand. Because of our decision in this regard, we find it unnecessary to address Director’s other points. Judgment reversed.

MARY RHODES RUSSELL, C.J. and WILLIAM H. CRANDALL, Jr., J.: Concur.

      . All statutory references are to RSMo Cum. Supp.1997 unless otherwise indicated.


author: PER CURIAM.

text:
    Dana COTTON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 76508.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 23, 2000.
    Douglas R. Hoff, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
    Before MARY RHODES RUSSELL, C.J., GARY M. GAERTNER, J., and LAWRENCE G. CRAHAN, J.
   ORDER

PER CURIAM.

Dana Cotton (Movant) files this appeal challenging the denial of her Rule 29.15 motion for post-conviction relief. A jury convicted Movant of second degree murder and this conviction was affirmed on appeal in State v. Cotton, 964 S.W.2d 883 (Mo.App. E.D.1998). Afterward, Movant filed a Rule 29.15 motion, which was denied after an evidentiary hearing.

We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).