text:
    STATE of Missouri ex rel. A & G COMMERCIAL TRUCKING, INC., Respondent, v. DIRECTOR OF THE MANUFACTURED HOUSING AND MODULAR UNITS PROGRAM OF THE PUBLIC SERVICE COMMISSION, and The Missouri Public Service Commission, Appellants.
    No. WD 64472.
    Missouri Court of Appeals, Western District.
    June 7, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Keith Krueger, Misouri Public Service Commission, Jefferson City, for Appellant.
    Tom Harrison, Columbia, Thomas G. Pirmantgen, Jefferson City, for Respondent.
   RONALD R. HOLLIGER, Judge.

Missouri Public Service Commission (“PSC”) and the Director of the Manufactured Housing and Modular Units Program of the Public Service Commission (“Director”) appeal the grant of a writ of prohibition by the Circuit Court of Cole County barring PSC and the Director from taking action involving a complaint filed by the Director seeking direction from the Commission to require its counsel to proceed with an action against A & G Commercial Trucking, Inc. (“A & G”), an unregistered dealer of manufactured homes. PSC and the Director raise several points of error, including a claim that the circuit court exceeded its jurisdiction in granting the writ of prohibition. We agree, reversing the judgment below and remanding with instructions to dismiss the pending proceeding.

Factual and Procedural Background

The PSC has regulatory authority with regard to registered dealers of manufactured housing. See Section 700.090, RSMo 2000. A & G was allegedly engaged in business as an unregistered dealer of manufactured housing. On August 12, 2003, the Director filed a complaint with the PSC asking that it proceed against A & G in circuit court alleging several violations of the Manufactured Home Standards under Section 700.100, RSMo, and seeking authority to pursue civil penalties pursuant to Section 700.115.2, RSMo 2000. A separate civil action was brought against A & G in Boone County by the Missouri Attorney General on May 10, 2004, seeking penalties under The Missouri Merchandising Practices Act, section 407.020 et seq. Sections 700.100 and 700.115, RSMo. provide that violations of the provisions of the manufactured housing statute will also be considered violations of the Merchandising Practices Act. The PSC was subsequently made a party to the Boone County action, but was later dismissed. The Boone County suit apparently remains pending.

A & G initially contested the Director’s complaint with the PSC on the grounds that Section 700.115, RSMo, authorized penalties only against registered sellers and that this provision was inapplicable to A & G because it was an unregistered dealer. A & G also filed a petition in the Circuit Court of Cole County seeking a writ of prohibition against the PSC and the Director. A & G argued that the PSC be prohibited from proceeding with the Director’s complaint because it lacked jurisdiction over A & G, given that it was not a registered dealer of manufactured homes and that the only entity authorized to pursue complaints against non-registered dealers is the Missouri Attorney General.

The circuit court ultimately granted A & G’s petition on July 13, 2004, and entered a writ prohibiting the Director and PSC from exercising further jurisdiction or taking any other action on the Director’s complaint with the PSC. The present appeal follows.

Discussion

In its first point on appeal, the Director contends that the trial court erred in issuing the writ of prohibition on the basis that it lacked jurisdiction to exercise injunctive power over the PSC because Section 386.510, RSMo, expressly prohibits the circuit court from enjoining, restraining, or interfering with the commission in the performance of its duties.

Respondent relies upon this court’s recent decision in State ex rel. Mississippi Lime Company v. Missouri Air Conservation Commission, 159 S.W.3d 376 (Mo.App.2004)(hereinafter, “Mississippi Lime”). That controversy arose when the Missouri Air Conservation Commission ordered Mississippi Lime Company to respond to discovery requests propounded to it by a competitor. Id. at 379. Mississippi Lime contended that the order exceeded the Commission’s authority in that the materials it was ordered to produce were confidential and the Commission had failed to review those materials and make a confidentiality determination prior to entering the discovery order. Id. at 379-80. Mississippi Lime sought a writ of prohibition from the Cole County Circuit Court barring the Commission from enforcing its order. While that court issued a preliminary writ, it subsequently quashed that preliminary writ. Id. at 380. An appeal to this court followed, in which Mississippi Lime contended that the Circuit Court of Cole County had jurisdiction to enter a writ of prohibition enjoining the Missouri Air Conservation Commission and that the circuit court abused its discretion in failing to grant the writ of prohibition. Id. at 383.

We held that the circuit court had jurisdiction to enter a writ of prohibition enjoining the Missouri Air Conservation Commission. Id. However, we ultimately concluded that the circuit court did not abuse its discretion in quashing its preliminary writ in prohibition. Id. at 386. A & G argues that the first holding supports a conclusion that the circuit court had jurisdiction to enter a writ of prohibition against the PSC.

The Mississippi Lime case looked to State ex rel. Riverside Joint Venture v. Missouri Gaming Commission, 969 S.W.2d 218 (Mo. banc 1998) in reaching its conclusion on the jurisdictional issue. As explained in Mississippi Lime, the Riverside opinion does not expressly take up the jurisdictional question. 159 S.W.3d at 382. Instead Mississippi Lime presumes that the Missouri Supreme Court considered the jurisdictional issue in Riverside, given that it is required to examine its jurisdiction sua sponte in all appeals. Id. Given that presumption and the fact that the case was not disposed of due to lack of jurisdiction, this court concluded that the Supreme Court implicitly held that the circuit court had jurisdiction to issue the writ. Id. at 382-83. The Mississippi Lime opinion, however, concedes that “no basis for jurisdiction is apparent to us.” Id. at 383.

Mississippi Lime, however, is distinguishable from the case at bar. Mississippi Lime concerned an administrative proceeding to which the Missouri Administrative Procedures Act (MAPA), Chapter 536, RSMo, was applicable. Here, the PSC is conducting the proceeding. MAPA operates to fill gaps not addressed within the PSC statutes. State ex rel. Coffman v. Pub. Svc. Comm’n, 121 S.W.3d 534, 539 (Mo.App.2003) (citing State ex rel. Noranda Aluminum, Inc. v. Pub. Svc. Comm’n, 24 S.W.3d 243, 245 (Mo.App.2000)). However, the PSC statutes contain a specific judicial review provision, Section 386.510, RSMo, that supercedes the judicial review provisions within MAPA. See id. at 540-41.

Director argues that the circuit court’s jurisdiction in this matter is constrained by that statute, which provides, in relevant part:

No court in this state, except the circuit courts to the extent herein specified and the supreme court or the court of appeals on appeal, shall have jurisdiction to review, reverse, correct or annul any order or decision of the commission or to suspend or delay the executing or operation thereof, or to enjoin, restrain or interfere with the commission in the performance of its official duties.

Id. (emphasis added). Other portions of the statute provide for circuit court review of PSC decisions by means of a writ of certiorari filed in the circuit court within a statutorily-defined deadline. See id. No provision is made for the issuance of writs of prohibition or mandamus by the circuit court. See id. Given that the statute expressly limits the jurisdiction of the circuit courts to enjoin, constrain, or otherwise interfere with the PSC’s conduct of its official duties to those set forth within the statute, the Director argues that the entry of the writ of prohibition, here, exceeded the circuit court’s jurisdiction.

Respondent argues that Riverside implicitly stands for the proposition that circuit courts have superintending jurisdiction over administrative tribunals under Article V, Section 14 of the Missouri Constitution and that this trumps the limitations of Section 386.510, RSMo. We disagree that the Missouri Constitution provides such authority.

The present version of Article V, Section 4, Subsection 1 of the Missouri Constitution provides:

The Supreme Court shall have general superintending control over all courts and tribunals. Each district of the court of appeals shall have general superintending control over all courts and tribunals in its jurisdiction. The supreme court and districts of the court of appeals may issue and determine original remedial writs. Supervisory authority over all courts is vested in the supreme court which may make appropriate delegations of this power.

Review of this constitutional provision shows that the Supreme Court and the Missouri Court of Appeals have superintending jurisdiction over inferior courts and other “tribunals.” This has been interpreted to include administrative bodies. See Mississippi Lime, 159 S.W.3d at 381. Before this section was amended in 1976, this superintending jurisdiction over other tribunals extended to circuit courts, as well. Missouri Constitution Article V, Section 4 (1976). We cannot conclude that the Missouri Constitution grants circuit courts superintending jurisdiction over administrative tribunals when the constitution was amended to explicitly remove the grant of such jurisdiction. Thus, to the extent that circuit courts have jurisdiction to enter writs of prohibition against administrative agencies, as contemplated in Mississippi Lime, that jurisdiction does not flow from the Missouri Constitution. Thus, if there is such jurisdiction, it must be granted by the general assembly through statutory enactments such as Section 536.150, RSMo.

We find Mississippi Lime inapplicable because it involved neither the PSC nor application of Section 386.510, RSMo. The statute does not expressly grant the circuit court authority to issue a writ of prohibition against the PSC and explicitly limits the circuit court’s jurisdiction to the judicial review set forth in the statute. Pursuant to Section 386.510, RSMo, the circuit court acted without jurisdiction in granting the writ of prohibition barring the Director or PSC taking further action with regard to the Director’s complaint. The judgment of the circuit court is, therefore, reversed, and the matter remanded to the trial court with instructions to dismiss the proceeding.

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

      . Statutory references are to RSMo 2000, unless otherwise indicated.

      . While not discussed by (or apparently applicable in) Riverside, we note that there is statutory authority within MAPA expressly authorizing circuit courts to review certain agency decisions by means of mandamus, prohibition, injunctive relief, or other appropriate means. See Section 536.150, RSMo.

      . Article V, Section 14, currently speaks to the jurisdiction of circuit courts:
      (a) The circuit courts shall have original jurisdiction over all cases and matters, civil and criminal. Such courts may issue and determine original remedial writs and shall sit at times and places within the circuit as determined by the circuit court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ralph EARLY, Plaintiff/Respondent, v. THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Defendant/Appellant.
    No. ED 83628.
    Missouri Court of Appeals, Eastern District, Division Five.
    June 7, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    William A. Brasher, St. Louis, MO, Charles G. Cole, Washington, D.C., for Appellant.
    Jerome J. Schlichter, Roger C. Denton, St. Louis, MO, for Respondent.
    Before GEORGE W. DRAPER III, C.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

This is a personal injury case brought pursuant to the Federal Employers’ Liability Act (FELA), 44 U.S.C. Sections 51 et seq. (2000), in which Ralph Early (Early) brought suit against his employer, the Burlington Northern and Santa Fe Railway Company (BNSF) for injuries sustained to his lower back when a ladder he was working on collapsed. The case was tried before a jury, which found in favor of Early and awarded him $5.5 million in damages. On appeal, BNSF argues the trial court (1) erred by excluding testimony, exhibits, and exemplars regarding the ladder because there was no evidence BNSF had intentionally destroyed the ladder, disobeyed any court order, or acted in bad faith, (2) erred in admitting evidence of subsequent remedial measures regarding purchase of a long-handled squeegee after the alleged accident, (3) erred in refusing to correct the jury instructions to reflect that reasonable foreseeability was an essential element of a FELA negligence claim, and (4) abused its discretion in refusing to continue the trial because of the absence of Kevin Rainey, BNSF’s corporate witness. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claim of error was not preserved. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


author: GARY M. GAERTNER, Presiding Judge.

text:
    Evan W. MONTGOMERY and Judith A. Montgomery, Respondents, v. SOUTH COUNTY RADIOLOGISTS, INC., Edward D. Habert, M.D. and Jeffrey B. Judd, M.D., Appellants, and Ata Siddiqui, M.D., William Turnage, M.D. and David G. Kennedy, M.D., Defendants.
    No. ED 84410.
    Missouri Court of Appeals, Eastern District, Division One.
    June 14, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Susan Ford Robertson, Ford Parshall & Baker, Columbia, MO, for appellants.
    Athony S. Bruning, Leritz, Plunkert <& Bruning, St. Louis, MO, for respondents.
   GARY M. GAERTNER, Presiding Judge.

Appellants, South County Radiologists, Inc. (“South County Radiologists”), Edward D. Habert, M.D. (“Dr. Habert”) and Jeffrey B. Judd, M.D. (“Dr. Judd”), appeal the decision of the circuit court of the City of St. Louis entered in favor of Respondent, Evan W. Montgomery (“Mr. Montgomery”), after a jury trial. Mr. Montgomery was awarded $1,450,000 against all three Appellants, plus Dr. David G. Kennedy (“Dr. Kennedy”) and David G. Kennedy, M.D., PC, and $800,000 against William Turnage, M.D. (“Dr. Turnage”) and Ata Siddiqui, M.D. (“Dr. Siddiqui”). We affirm.

Mr. Montgomery began feeling back pain in December of 1994. The pain continued into 1995, and an MRI taken in February of 1995 revealed a small disk protrusion according to Dr. Edward Szoko (“Dr. Szoko”), a radiologist employed by South County Radiologists. This was Dr. Szoko’s only significant finding. Dr. Kennedy, a neurosurgeon employed by David G. Kennedy, M.D., P.C., reviewed the film and agreed with the findings of Dr. Szoko. Dr. Kennedy ordered Mr. Montgomery to receive trigger point injections and physical therapy. Mr. Montgomery’s pain did not subside after the treatment so Dr. Kennedy recommended lumbar microdis-kectomy surgery, which was performed on June 30,1995.

When the pain continued after the lumbar microdiskectomy surgery, Dr. Kennedy referred Mr. Montgomery for another MRI in July of 1995 and Dr. Habert, a radiologist employed by South County Radiologists, found fluid accumulation in the region of the surgery. No findings related to an abnormality in the sacrum were made by Dr. Habert. With the pain still affecting Mr. Montgomery, Dr. Kennedy sent Mr. Montgomery for another MRI on November 3, 1995. Dr. Judd, another radiologist employed by South County Radiologists, read the November MRI and reported finding some post-operative scarring. No findings related to an abnormality in the sacrum were made by Dr. Judd.

Judith A. Montgomery (“Mrs. Montgomery”), the wife of Mr. Montgomery, took the November 3, 1995 MRI film to her former place of employment, Central Radiology Group, on or about November 6, 1995. Dr. Catherine Beal (“Dr. Beal”), a radiologist at Central Radiology Group, reviewed the film and within approximately one minute of inspecting the MRI observed an abnormality in Mr. Montgomery’s sacrum. Soon thereafter, Dr. Beal notified Dr. Kennedy of her concern about the abnormality she found while reviewing Mr. Montgomery’s MRI. On November 16, 1995, it was formally diagnosed that Mr. Montgomery had a tumor in his sacrum. When Dr. Kennedy reported to Mr. Montgomery the finding of a sacral tumor, Mr. Montgomery stopped treatment with Dr. Kennedy and received a referral to Dr. Doug McDonald, a surgeon. The tumor was biopsied, thought to be benign, and partially removed during a surgery performed at Saint Louis University Hospital on December 8, 1995. The removal of the tumor eliminated Mr. Montgomery’s severe back pain forthwith.

After slides of the tumor were examined at the Mayo Clinic in Rochester, Minnesota, the ultimate diagnosis was osteosarco-ma, which is a type of malignant bone cancer. Dr. McDonald recommended surgery to remove osteosarcoma margins around where the tumor had been located. Mr. Montgomery underwent surgery on May 6, 1996 at Saint Louis University Hospital. During the surgery, Mr. Montgomery’s eyes were taped shut and he was placed face down. Dr. Turnage, an anesthesiologist, was in charge of monitoring and maintaining positioning of Mr. Montgomery’s head and face. Dr. Turnage supervised Dr. Siddiqui, who was working as an anesthesiologist resident at St. Louis University Hospital. Upon waking from the May 1996 surgery, Mr. Montgomery discovered that he was blind in his left eye, a problem that persists to this day. According to Dr. John Selhorst, a neurologist, Mr. Montgomery is permanently blind in his left eye.

Mr. Montgomery filed suit in the Circuit Court of the City of St. Louis against Dr. Kennedy, Dr. Habert, Dr. Judd, Dr. Szoko and the employer of the latter three, South County Radiologists, for injuries Mr. Montgomery alleged he sustained due to the failure of all four doctors to properly interpret lumbar spine MRIs taken in 1995 and to diagnose a sacral mass that resulted in him experiencing back pain from February 25, 1995 through December 8, 1995. Mr. Montgomery also alleged he underwent an unnecessary disk surgery performed by Dr. Kennedy in June of 1995. Dr. Turnage and Dr. Siddiqui were also named as defendants in the suit. Mr. Montgomery alleged that Dr. Turnage and Dr. Siddiqui were negligent in the provision of anesthesia services during the May 1996 surgery at Saint Louis University Hospital. Mr. Montgomery alleged that the negligence of Dr. Turnage and Dr. Siddiqui during his surgery led to permanent blindness in his left eye. The petition alleged that all the defendants were joint tort-feasors.

South County Radiologists, Dr. Habert, Dr. Szoko and Dr. Judd all filed motions to transfer venue. In September of 1997, presiding Judge Robert Dierker, Jr. issued an order and written opinion denying the motions to transfer venue. Subsequently, Dr. Szoko and South County Radiologists were granted summary judgment with respect to claims arising out of Dr. Szoko’s reading of the February 14, 1995 MRI. The summary judgments granted to South County Radiologists and Dr. Szoko were appealed by Respondents after the remaining defendants were dismissed without prejudice. The Missouri Supreme Court affirmed the summary judgment as to Dr. Szoko, but reversed as to South County Radiologists liability for the acts of Dr. Szoko.

The current case, involving issues identical to those in the 1997 suit, was filed in 1999. After the decision of the Missouri Supreme Court, Appellants moved to consolidate the 1997 suit with the 1999 suit. The consent order, filed on May 13, 2002, which consolidates the two actions, stipulates that all orders, rulings, and judgments entered in the 1997 suit will be binding on the parties in the current action.

The trial of the current suit was held in November of 2003. At the trial, during cross-examination of Dr. David Tarlow (“Dr. Tarlow”), Dr. Tarlow was asked about an article in a medical journal enti-tied “Radiology.” When Dr. Tarlow was asked about the article in “Radiology,” counsel for Mr. Montgomery objected on the grounds of hearsay and lack of foundation. The objection was sustained. The trial court also sustained the lack of foundation objection following Appellants’ offer of proof, which was conducted the day after Dr. Tarlow was cross-examined.

At the conclusion of Respondents’ evidence, Dr. Habert and Dr. Judd moved for a directed verdict, which was denied by the court. At the conclusion of all of the evidence, counsel for Dr. Habert and Dr. Judd moved for a directed verdict and reasserted their motion regarding a claim of improper venue. The trial court denied both of these motions. The jury returned a verdict in favor of Mr. Montgomery and against Dr. Kennedy, David G. Kennedy, M.D., P.C., Dr. Habert, Dr. Judd, and South County Radiologists on the failure to recognize and report a sacral mass, and awarded damages to Mr. Montgomery on that claim in the amount of $1,450,000. The jury apportioned fault in the following manner: 10% to Dr. Kennedy and David G. Kennedy, M.D., P.C. for failure to recognize an abnormality on Mr. Montgomery’s February 14, 1995 MRI; 30% to Dr. Habert and South County Radiologists for failure to recognize and report a sacral mass on Mr. Montgomery’s July 31, 1995 MRI; and 60% to Dr. Judd and South County Radiologists for failure to recognize and report a sacral mass on Mr. Montgomery’s November 3, 1995 MRI. The jury awarded Mrs. Montgomery no damages for her loss of consortium claims. On Mr. Montgomery’s claims against Dr. Turnage and Dr. Siddiqui, the jury found in favor of Mr. Montgomery and awarded him $800,000. Finally, on the claim by Mr. Montgomery against South County Radiologists for the alleged negligence of Dr. Szoko, the jury found in favor of South County Radiologists. Judgment was subsequently entered in accordance with the jury verdict on January 7,2004.

On December 23, 2003, Dr. Habert and Dr. Judd filed post-trial motions, and then filed amended motions on January 29, 2004. At a hearing on the post-trial motions, four jurors were questioned and evidence was introduced regarding a fifth juror, Nette Lewis, concerning allegations that the jurors withheld information about past involvement in lawsuits during voir dire questioning. The trial court did not rule on the post-trial motions within 90 days of their filing, and, thus, this appeal by Appellants followed.

In their first point on appeal, Appellants claim the trial court erred in denying their motion to transfer venue in that the trial court abused its discretion in refusing to transfer the claims against Dr. Habert and Dr. Judd to St. Louis County.

When a suit is brought against one or more corporations and one or more individuals, the general venue statute, section 508.010 RSMo 2000, governs. State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 197 (Mo.banc 1991). The party challenging venue carries the burden of persuasion and proof, if proof is necessary, that venue is improper. State ex rel. Etter, Inc. v. Neill, 70 S.W.3d 28, 31 (Mo.App. E.D.2002). Section 508.010(6) provides, in pertinent part, that: “[i]n all tort actions the suit may be brought in the county where the cause of action accrued regardless of the residence of the parties ...” Section 508.010(6). Venue exists for all jointly-liable defendants where venue exists for any one of the defendants. State ex rel. BJC Health System v. Neill, 121 S.W.3d 528, 530 (Mo.banc 2003).

A party who commits an act of negligence is liable for all damages caused by the act of negligence, including later medical malpractice damages caused by a second party. See State ex rel. Bitting v. Adolf, 704 S.W.2d 671, 672-73 (Mo.banc 1986) (holding that joint liability of a tort-feasor and the doctors who negligently treated a plaintiff for the injuries sustained in the original accident justified joinder and venue). The second party is hable only for that portion of the total damages which is caused by their malpractice. Id. at 673. The two separate parties may be jointly and severally liable for a portion of the damages suffered by the plaintiff. Id.

In denying the motions to transfer venue brought before him in September of 1997, Judge Dierker concluded that venue was proper in the city of St. Louis “because the injuries which occurred in the City are allegedly the result of surgery that was necessitated by the prior allegedly wrongful acts committed in St. Louis County by St. Louis County residents. Since there is an alleged joint liability for the injuries which occurred in the City of St. Louis, venue is proper as to all defendants.”

The claims that were brought by Mr. Montgomery against Dr. Turnage and Dr. Siddiqui alleged negligence arising out of surgery performed on May 6, 1996 in the City of St. Louis. Nonetheless, Appellants assert that the only proper venue for the claims against them was in St. Louis County, because Dr. Habert and Dr. Judd reside in St. Louis County and the alleged negligent acts of Dr. Habert and Dr. Judd occurred in St. Louis County. According to Appellants, there is no common or joint liability between the claims against them and the claims brought against Dr. Tur-nage and Dr. Siddiqui, because the claims against Dr. Turnage and Dr. Siddiqui involved injuries separate and divisible from the injuries alleged to be caused by the negligence of Appellants.

Montgomery’s petition alleged all the defendants in the case were joint tort-feasors. Specifically, the petition alleged that the damages caused by the negligence of Dr. Turnage and Dr. Siddiqui were a direct and foreseeable consequence of the negligence of Dr. Kennedy, Dr. Habert, Dr. Judd and South County Radiologists. The petition claims that the negligence of Appellants caused “surgeries and treatments for cancer, the degree of which was unnecessary ...” Respondents’ petition was sufficient to support an allegation of joint liability. There is no evidence that any allegations of joint liability in the petition were made in bad faith. Appellants claim that testimony at the trial revealed that the May 1996 surgery would have been necessary regardless of when the tumor was found and diagnosed. However, venue is determined as the case stands when brought, rather than when a motion challenging venue is decided. State ex rel. Private Nursing v. Romines, 130 S.W.3d 28, 30 (Mo.App. E.D.2004). Therefore, the trial court did not abuse its discretion in denying Appellants’ motion to transfer venue. Point denied.

In their second point on appeal, Appellants claim that the trial court erred in denying their motion for a new trial because juror non-disclosure warranted a new trial.

We have reviewed the briefs of the parties and the record on appeal with respect to this claim. As an extended opinion would serve no jurisprudential purpose, we affirm this part of the judgment pursuant to Rule 84.16(b). Point denied.

In the third point on appeal, Dr. Judd claims the trial court erred in denying his motion for directed verdict and motion for a judgment notwithstanding the verdict (“JNOV motion”), because Mr. Montgomery failed to adduce substantial evidence to prove the necessary elements of his medical negligence claim against Dr. Judd.

Our standard of review for the denial of a JNOV motion and the denial of a motion for directed verdict are essentially the same. Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). In deciding whether there was sufficient evidence to support the jury’s verdict, the evidence is viewed in the light most favorable to the jury’s conclusion. Id. A case cannot be submitted to the jury unless all facts essential to liability are based upon legal and substantial evidence. Id. We will reverse the jury’s verdict for insufficient evidence only if there are no probative facts to support the verdict. Id.

In order to prove medical malpractice the three elements a plaintiff must establish are: 1) an act or omission of the defendant failed to meet the required standard of care; 2) the defendant was negligent in the performance of the act or omission; and 3) the act or omission caused the plaintiffs injury. Echard v. Barnes-Jewish Hosp., 98 S.W.3d 558, 565 (Mo.App.E.D.2002).

Dr. Judd claims that Mr. Montgomery failed to prove damages as a result of the alleged negligence by Dr. Judd, and as a result the claim against Dr. Judd should not have been submitted to the jury.

There is evidence that Dr. Beal discovered what was later confirmed to be a tumor on or about November 6, 1995, which was three days after Dr. Judd failed to find the tumor upon review of the November 3,1995 MRI. November 16,1995 is the date the tumor was formerly diagnosed after Dr. Beal had relayed her concerns to Dr. Kennedy about the abnormality she found on the November 3, 1995 MRI that Dr. Judd had previously reviewed. Mr. Montgomery contends that had Dr. Judd initially found the tumor upon his review of the MRI, then diagnosis of the tumor, the biopsy and the tumor removal would have been scheduled sooner and his pain symptoms would have subsided weeks earlier. Dr. Tarlow testified that had Dr. Judd properly diagnosed the mass which was Mr. Montgomery’s tumor, then he would have received the biopsy procedure a couple weeks earlier. The evidence reveals that Mr. Montgomery’s severe back pain ended after the tumor was finally biopsied and partially removed. Thus, there is sufficient evidence that Mr. Montgomery suffered damages due to the negligence of Dr. Judd. Therefore, the trial court did not err in denying Dr. Judd’s motion for directed verdict and JNOV motion. Point denied.

In their fourth point on appeal, Appellants claim the trial court erred in denying their motion for a new trial because the court improperly refused to allow them to use an article from the “Radiology” journal to impeach Mr. Montgomery’s expert witness.

In the absence of prejudice, there is no reversible error. McAllister v. McAllister, 101 S.W.3d 287, 293 (Mo.App. E.D.2003).

Assuming arguendo that the trial court did abuse its discretion in refusing to allow Appellants to use the journal article during cross-examination of Dr. Tarlow, Appellants were not prejudiced. Appellants’ counsel, through use of the journal article, wanted to prove that the pattern of fat distribution in the lower back seen on Mr. Montgomery’s February 1995 MRI was normal and not a concern related to cancer. This line of defense was clearly only meant to be used in regards to review of the February 1995 MRI. However, none of the Appellants, including South County Radiologists, were found liable in relation to the February 1995 MRI.

A different defense strategy was utilized as to the review of the July 1995 and November 1995 MRIs by Dr. Habert and Dr. Judd. The defense strategy related to these later MRIs centered around the contention that while, in retrospect, a tumor could be seen on the MRIs, Dr. Habert and Dr. Judd did not breach their standard of care by failing to find the tumor. Dr. Joel Meyer, a radiologist who testified as an expert witness for the defense, and Dr. Szoko conceded that the July 1995 MRI reviewed by Dr. Habert and the November 1995 MRI reviewed by Dr. Judd did in fact reveal, upon close inspection, an abnormality in sacrum that was later proven to be a tumor. Furthermore, Dr. Ha-bert and Dr. Judd also conceded that, in retrospect, the MRIs they reviewed did reveal what is known now to be a tumor in the sacrum. Thus, the intended use of the journal article, during Dr. Tarlow’s cross-examination, to prove that there was nothing in the February 1995 MRI that should cause alarm about a possible tumor would have had no relevance to the defense of Dr. Habert and Dr. Judd, who were only found liable with respect to the July and November 1995 MRIs. Therefore, the trial court did not err in denying Appellants’ motion for a new trial, because they were not prejudiced by the trial court’s decision to sustain the objections related to use of the journal article during Dr. Tarlow’s examination. Point denied.

In their final point on appeal, Appellants claim the trial court erred in denying their motion for a new trial because of the ex-cessiveness of the jury verdict.

We will only order a new trial upon a showing that trial court error indicated prejudice in the jury, but the amount of the verdict, by itself, does not constitute enough proof to establish that the verdict was the result of bias, passion, or prejudice. Lopez v. Three Rivers Elec. Co-op., Inc., 92 S.W.3d 165, 175 (Mo.App. E.D. 2002).

The record does not reflect that any trial court error was made in this case which would indicate prejudice motivated the jury’s assessment of damages. Therefore, the trial court did not err in denying Appellant’s motion for a new trial. Point denied.

Based on the foregoing, we affirm the judgment of the trial court.

SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J., concur.

      . Following the trial, Mr. Montgomery settled his dispute with Dr. Kennedy and David G. Kennedy, M.D., P.C. Dr. Turnage and Dr. Siddiqui have also recently settled their disputes with Mr. Montgomery.

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


text:
    Deaminges DAVIS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85317.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 25, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Ellen H. Flottman, Columbia, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant Deaminges Davis (“Davis”) appeals from the motion court’s judgment denying his Rule 29.15 post-conviction relief motion without an evidentiary hearing. On appeal, Davis argues the motion court erred in denying him an evidentiary hearing because his counsel was ineffective for failing to: (1) call certain witnesses to testify that they were in a friend’s apartment at the time of the shooting and that a co-defendant was also in the apartment, which would have refuted testimony by the State’s witnesses that this co-defendant was in the alley during the shooting; (2) call another witness to testify that she was an eyewitness to the shooting of the victim and that she could not identify Davis as the second shooter or that she saw Davis holding the victim; (3) call a different co-defendant to testify that although Davis was involved in the plan to rob the victim, he did not shoot the victim or hold him; and (4) rebut the State’s pretextual explanation for the peremptory strike of a veni-reperson and show that the strike was motivated by gender.

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


author: SHERRI B. SULLIVAN, J.

text:
    NORTHWEST CHRYSLER-PLYMOUTH, INC., d/b/a Don Schunk Chrysler Jeep, a Delaware Corporation, Plaintiff/Respondent, v. DAIMLERCHRYSLER CORPORATION, a Delaware Corporation, and DaimlerChrysler Motors Company, L.L.C., a Delaware Limited Liability Company, Defendants/Appellants.
    No. ED 85649.
    Missouri Court of Appeals, Eastern District, Division One.
    June 21, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 25, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Brent Winfield Baldwin, Steven Mathew Wald, co-counsel, St. Louis, MO, for Appellant.
    Robert D. Blitz, Wllen Wyatt Dunne, co-counsel, Clayton, MO, for Respondent.
   SHERRI B. SULLIVAN, J.

Introduction

DaimlerChrysler Corporation (DCC) and DaimlerChrysler Motors Company, L.L.C., (DCMC) (collectively Appellants) appeal from a trial court order denying their Petition to Stay and Compel Arbitration (Motion to Compel Arbitration) of the tort claims brought against them by Northwest Chrysler-Plymouth, Inc., d/b/a Don Schunk Chrysler Jeep (Respondent). We affirm.

Factual and Procedural Background

Respondent filed a Petition against Appellants alleging products liability and negligence, or in the alternative, res ipsa lo-quitur. In its Petition, Respondent alleged that it had purchased a PT Cruiser from DCMC and that while in Respondent’s showroom, the PT Cruiser caught fire due to a defect in the manufacturing and/or design of the car’s engine and/or electrical system, resulting in damage to the showroom and offices as well as several other cars in the showroom.

Subsequently, Appellants filed their Motion to Compel Arbitration, under the Federal Arbitration Act (FAA), 9 U.S.C. section 1 et seq., to which Respondent filed a Memorandum in Opposition. In their Motion to Compel Arbitration, Appellants alleged that the PT Cruiser had been purchased pursuant to a Sales and Service Agreement (the Agreement) entered into between Respondent and DCMC. The Agreement included the following Arbitration Provision in relevant part:

Any and all disputes arising out of or in connection with the interpretation, performance or nonperformance of this Agreement or any and all disputes arising out of or in connection with transactions in any way related to this Agreement (including, but not limited to, the validity, scope and enforceability of this arbitration provision, or disputes under rights granted pursuant to the statutes of the state in which DEALER is licensed) shall be finally and completely resolved by arbitration pursuant to the arbitration laws of the United States of America as codified in Title 9 of the United States Code, Sections 1-14, under the Rules of Commercial Arbitration of the American Arbitration Association. ...
It is the intent and desire of DEALER and [DCMC] to hereby and forever renounce and reject any and all recourse to litigation before any judicial or administrative forum and to accept the award of the arbitration panel as final and binding, subject to no judicial or administrative review, except on those grounds set forth in 9 U.S.C. section 10 and 11.

The trial court entered an order denying Appellants’ Motion to Compel Arbitration. The court found that Respondent’s tort claims based on theories of products liability, negligence and res ipsa loquitur are beyond the scope of the Arbitration Provision because the claims would have arisen regardless of the Agreement. The trial court noted that had Respondent purchased the PT Cruiser at issue from another dealer or had the car been present pursuant to a loan, Respondent still would have the tort claims against Appellants. The trial court also found Respondent’s tort claims beyond the scope of the Arbitration Provision because the resolution of the claims would not require a reference to or construction of a portion of the Agreement. Appellants appeal from the trial court order denying their Motion to Compel Arbitration.

Standard of Review

An order denying a motion to compel arbitration is appealable under Section 435.440.1(1) RSMo 2000 and under 9 U.S.C. section 16(a)(l)(B)(1996). Greenwood v. Sherfield, 895 S.W.2d 169, 172 (Mo.App. S.D.1995). Whether a dispute is covered by an arbitration provision is a question of law, and we review the arbitra-bility of a dispute de novo. Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003).

Discussion

Appellants raise two points on appeal. In their first point, Appellants argue that the trial court erred in denying their Motion to Compel Arbitration because the plain language of the Agreement, construed in accordance with applicable principles, encompasses Respondent’s tort claims in that the dispute arises out of an allegedly non-conforming vehicle purchased by Respondent in a transaction under the Agreement.

Before a party may be compelled to arbitrate under the FAA, a court must determine whether a valid agreement to arbitrate exists between the parties and whether the specific dispute falls within the substantive scope of that agreement. Dunn, 112 S.W.3d at 427-428. Standing alone, a public policy favoring arbitration is not enough to extend the application of an arbitration clause far beyond its intended scope. Greenwood, 895 S.W.2d at 174; Estate of Athon v. Conseco Fin. Servicing Corp., 88 S.W.3d 26, 30 (Mo.App. W.D. 2002).

Arbitration must be compelled where a tort claim arises directly out of a dispute regarding the terms of the parties’ contract. Greenwood, 895 S.W.2d at 174; Estate of Athon, 88 S.W.3d at 30. At the very least, for a tort claim to be subject to arbitration under a broad arbitration clause, it must raise some issue the resolution of which requires reference to or construction of some portion of the parties’ contract. Estate of Athon, 88 S.W.3d at 30. Where a tort claim is independent of the contract terms and does not require reference to the underlying contract, arbitration is not compelled. Id.

The Introduction to the Agreement states:

The purpose of the relationship established by this Agreement is to provide a means for the sale and service of specified Chrysler vehicles and the sale of [DCMC] vehicle parts and accessories in a manner that will maximize customer satisfaction and be of benefit to DEALER and [DCMC].

We conclude that the tort claims raised by Respondent do not arise out of or in connection with the Agreement. The tort claims do not raise any issue the resolution of which requires reference to or construction of some part of the Agreement. Cf. Estate of Athon, 88 S.W.3d at 30 (tort claims of respondeat superior, conversion, trespass, interference with expectancy, and unlawful repossession of personal property raised issues of the defendant’s right to enter the property and to repossess a mobile home that required reference to a contract between the parties, and therefore the claims were subject to the arbitration provision of the contract). Further, the resolution of the tort claims does not require an examination of the parties’ respective obligations and performance under the Agreement. Cf. Dunn, 112 S.W.3d at 428. Respondent did not file the Petition on the basis of the Agreement or a breach of it, but rather on the basis of allegations of product liability, negligence and res ipsa loquitur due to an alleged manufacturing and/or design defect in the PT Cruiser. Appellants do not identify any portion of the Agreement that would need to be referred to or interpreted to determine whether such a defect or defects existed. Although Respondent refers generally to the Agreement in the Petition, it does so by way of factual background not as the basis for liability under the tort claims.

Further, the tort claims do not arise out of or in connection with a transaction under the Agreement. Appellants argue that the tort claims arise out of or are connected to the sale of the PT Cruiser, a “transaction” under the Agreement. We disagree. An alleged manufacturing and/or design defect, the basis for liability, bears no meaningful connection to the sale transaction under the Agreement. The tort claims are independent of the sale. Respondent could maintain such claims against Appellants regardless of the Agreement and the sale transaction.

Accordingly, the trial court properly determined that Respondent’s tort claims are not within the scope of the Arbitration Provision in the Agreement, and therefore arbitration should not be compelled. Appellants’ point one on appeal is denied.

In light of our resolution of Appellants’ point one, Appellants’ point two on appeal, arguing that DCC is entitled to enforce the Arbitration Provision against Respondent although DCC was not a signatory to the Agreement, is moot.

Conclusion

The trial court’s order denying Appellants’ Motion to Compel Arbitration is affirmed.

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

      . DCC designs and manufactures Daimler-Chrysler automobiles, including the PT Cruiser. DCMC sells, distributes and warrants DCC automobiles.

      . A broad arbitration clause covers all disputes arising out of a contract to arbitrate. Dunn, 112 S.W.3d at 428.

      . We note that, unlike the provision at issue here, the arbitration provision in Estate of Athon specifically included tort claims. Id. at 28.

      . We also need not address the waiver of arbitration argument made by Respondent in its brief.


text:
    Randy WHITE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64044.
    Missouri Court of Appeals, Western District.
    June 21, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Sarah Weber Patel, Assistant Appellate Defender, Kansas City, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before ELLIS, P.J., and SPINDEN and HOWARD, JJ.
   Order

PER CURIAM.

Randy White appeals from the judgment denying his Rule 29.15 motion for post-conviction relief. We affirm. Rule 84.16(b).


text:
    Faye KEYSER, Respondent, v. UNIVERSITY CITY SCHOOL DIST., Appellant.
    No. ED 85535.
    Missouri Court of Appeals, Eastern District, Division One.
    June 28, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Mary Ann Lindsey, St. Louis, MO, for appellant.
    Dean Lee Christianson, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

University City School District (“Employer”) appeals from the Labor and Industrial Relations Commission’s (“the Commission”) decision awarding Faye Keyser’s (“Employee”) dependents death benefits under the Workers’ Compensation Act. Employer argues the Commission erred as a matter of law in (1) ruling that Employee sustained a compensable accident on May 15, 2002, which subsequently resulted in her death because the Commission based its decision on hearsay statements made by Employee to health care providers regarding the circumstances of her accident; and (2) awarding past medical expenses incurred by Employee because she was not entitled to recover the full amount of those expenses that were discounted by the group carrier.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The Commission’s decision is affirmed. No precedential or jurisprudential purposes would be served by an opinion restating the detailed facts and the principles of law. The parties have been furnished with a memorandum for their purposes only explaining the reasons for this order affirming the decision pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Glen E. McGOWAN, Appellant.
    No. ED 85150.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 28, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Amy M. Bartholow, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Jefferson City, MO, for respondent.

      Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Glen McGowan (“defendant”) appeals from the judgment entered after a jury convicted him of interfering with an arrest in violation of section 575.150 RSMo (2000).

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

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    Michael MINADEO, et al., Plaintiffs/Appellants, v. ALCON LABORATORIES, Defendant/Respondent.
    No. ED 85478.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 28, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Erich Vieth, St. Louis, MO, for Appellant.
    David M. Harris, St. Louis, MO, J. Gordon Cooney, Jr., Philadelphia, PA, for Respondent.
    Before PATRICIA L. COHEN, P.J. and ROBERT G. DOWD, JR. and GLENN A. NORTON, JJ.
   ORDER

PER CURIAM.

Michael Minadeo and nine others named as representatives in this potential class action (collectively referred to as Plaintiffs) appeal the judgment of the trial court dismissing Plaintiffs’ petition against Alcon Laboratories, Inc. (Alcon) based on forum non conveniens. Plaintiffs contend the trial court abused its discretion in granting Aeon’s motion to dismiss for forum non conveniens.

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


author: KENNETH W. SHRUM, Judge.

text:
    Ken CREVISTON, Plaintiff-Appellant, v. ASPEN PRODUCTS, INC., and William P. Biggins, Defendants-Respondents.
    No. 26561.
    Missouri Court of Appeals, Southern District, Division Two.
    June 28, 2005.
    Motion for Rehearing and Transfer Denied July 19, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Steven E. Marsh, Hulston, Jones & Marsh, Springfield, for Appellant.
    Mark S. Gunnison, Payne & Jones, Chartered, Kansas City, Ronald A. Conway, Reynolds & Conway, P.C., Springfield, for Respondents.
   KENNETH W. SHRUM, Judge.

Ken Creviston (“Ken”) filed a seven-count suit seeking compensatory and punitive damages from Aspen Products, Inc. (“Aspen”) and William P. Biggins (“Big-gins”). Ken’s claims arose from a 1993 handwritten document (“Document”) signed by Biggins and Bill Limbaugh (“Limbaugh”). Until Limbaugh died in 1994, Biggins and Limbaugh were business associates, equal owners of the corporate stock of Aspen, and officers and directors of Aspen.

Biggins filed a counterclaim against Ken seeking to recover money loaned to Ken. The counterclaim involved a promissory note wholly unrelated to the Document or its provisions.

The trial court entered summary judgment adverse to Ken on his claims against Defendants. It also entered summary judgment for Biggins on his counterclaim against Ken on the promissory note. Ken appeals. This court affirms.

FACTS

Aspen is a Missouri corporation that, from at least April 1978 through 1994, located its principal corporate offices and production plant in Lenexa, Kansas. On February 10, 1993, Limbaugh asked Big-gins to sign the Document and Biggins acceded to that request. This happened at Aspen’s corporate offices in Kansas. Because the Document is the genesis for Ken’s claims, we reproduce it in its entirety:

“2-10-93
“To: Bill Biggins
From: Bill Limbaugh
“1. In the event of my death — please take $80,000.00 from my loan to Aspen Products — immediately use it to pay for Gary Jackson’s college costs — tuition, room, board, books, etc. Distribute it approximately $20,000 yearly when Gary’s time for college comes.
“Note — Gary’s ph. # is 966-9915 — he is staying at Dorothy Jackson’s home at 10636 Waldroud — KC.Mo 64137.
loa_
“2. Also — please immediately take from Aspen $300,000.00 + transfer to an account in Aspen to Ken Creviston— 4133 S. Hooper — Sgfd.Mo. 65804. Please distribute at $25,000.00 per year plus Aspen floating % over prime on going interest rate for 12 years.
“Please handle these things immediately and privately as long as I have this much money $880,000.00 loaned to Aspen. If my loan to Aspen is depleted, then this request is cancelled.
Notary Susan M. Bradt
Signed Bill B. Limbaugh
Expires: January 7,1997
DATE: February 10, 1998
Agreed to by William P. Biggins”

The reference to Limbaugh’s “loan to Aspen” in the Document is rooted in Limbaugh’s and Biggins’ long-standing practice of lending money to their corporate entity, Aspen. Thus, when Limbaugh died on October 8, 1994, Aspen owed him at least $865,000.

A will and “living trust” made by Limbaugh in 1988 was in place when he died. Although the will was probated in Kansas, the Document was never presented to nor filed with the Kansas probate court during the pendency of the estate, either as an attempted testamentary document or as a claim against Limbaugh’s estate. Moreover, the Document was never mentioned in settlement agreements reached regarding Limbaugh’s estate.

Ken sued Defendants on January 5, 2000, seeking $300,000 actual damages and unspecified punitive damages based on the Document. Defendants’ answer raised multiple affirmative defenses. One such defense was that the Document was “an invalid and unenforceable attempt at a testamentary disposition and/or distribution of assets.” When Biggins answered Ken’s suit, he also filed a counterclaim against Ken. The counterclaim was for $15,000 (plus interest) on a loan Biggins made to Ken. After extended discovery, Defendants filed a motion for summary judgment on Ken’s claims. Also, Biggins moved for summary judgment on his counterclaim against Ken. The trial court sustained both motions and entered summary judgment against Ken. This appeal by Ken followed.

STANDARD OF REVIEW

Appellate court review of the grant of summary judgment is essentially de novo. ITT Commercial Fin. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376[4] (Mo.banc 1993). Summary judgment is correct when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. at 376[7]. The record is reviewed in the light most favorable to the party against whom judgment was entered and the non-moving party is granted the benefit of all reasonable inferences from the record. Id. at 376[1,3]. A summary judgment may be affirmed under any theory that is supported by the summary judgment record. Kesterson v. Wallut, 157 S.W.3d 675, 679[3] (Mo.App.2004).

Point I: Was Document Invalid Attempt At Testamentary Disposition?

Although Point I of Ken’s brief has multiple parts, the issues that are disposi-tive of Ken’s claims can be found in Point 1(A). There, Ken argues the trial court “could not properly have ... construed [the Document] as a handwritten “will’ or an invalid testamentary disposition and, therefore, [Ken’s] claims thereunder were not barred on that basis.”

In developing his argument, Ken implicitly concedes we should affirm if the Document can only be interpreted as Defendants claim, namely, as an attempted testamentary disposition. He insists, however, that any such claim is fallacious. Instead, Ken argues that the Document, by clear and unambiguous language, evinced an intent on the part of Limbaugh to assign or allocate $800,000 to Ken for immediate transfer to an account in Aspen. Alternatively, Ken argues that if the Document is ambiguous, thus requiring parol evidence and explanation to show Limbaugh’s intent, then its interpretation becomes a question of disputed material fact and not a matter of law upon which summary judgment could be granted.

Ambiguity in a document is said to arise if there is duplicity, indistinctness, or uncertainty in the meaning of the words used therein, or if the instrument promises something at one place and takes it away at another. Bydalek v. Brines, 29 S.W.3d 848, 855[6] (Mo.App.2000). Whether ambiguity exists in a written instrument is measured by a “reasonable person” standard, that is, “ambiguity exists if reasonable people may fairly and honestly differ in the reading of the terms because the terms are susceptible of more than one meaning.” Id. at 855[7].

However, a written document is not ambiguous simply because litigants disagree over its meaning. Id. at 855[8]. Moreover, if a document is clear and unambiguous on its face, it is not open to judicial interpretation or construction. Id. at 855[10].

In analyzing claims of document ambiguity, effect must be given to every part of the document when fairly and reasonably possible. Id. at 855[9]. In addition,

“ ‘[t]he cardinal principle for contract interpretation is to ascertain the intention of the parties and give effect to that intent.’ We use the plain, ordinary and usual meaning of the contract’s words and consider the document as a whole. Each term and clause is construed to avoid an effect that renders other terms and provisions meaningless. A construction attributing a reasonable meaning to each phrase and clause, and harmonizing all provision of the agreement is preferred to one that leaves some of the provisions without function or sense.”

State ex rel. Mo. Hwy. and Transp. Comm’n. v. Maryville Land Partnership, 62 S.W.3d 485, 491-92 (Mo.App.2001) (citations omitted).

When the first four lines of paragraph 2 of the Document are read alone — as Ken urges — they clearly direct an immediate transfer of $300,000 to “an account in Aspen to Ken Creviston.” However, those four lines do not stand alone.

Continuing, when paragraph 1 is read with the first four lines of paragraph 2, it become less clear what Limbaugh intended regarding Ken’s account. Did he want Ken’s account established concurrently with the Document, or “immediately” after Limbaugh’s death? Limbaugh’s intent becomes clouded because paragraph 1 directs Defendants to “immediately” take $80,000 from Limbaugh’s “loan” at Limbaugh’s death and “use it ... for Gary.” Paragraph 2 then starts with “[a]lso ... please immediately take from Aspen $300,000.00 [and] transfer it to an account in Aspen to Ken Creviston.”

Defendants argue that Limbaugh’s use of the word “immediately” in both paragraphs 1 and 2 and use of the word “also” at the beginning of paragraph 2 tie the two provisions together, thus showing Limbaugh’s intent that neither transfer was to occur until “immediately” after his death. Contrarily, Ken asserts that paragraph 1 and the first part of paragraph 2 show Limbaugh wanted Jackson’s account established after Limbaugh’s death (because he clearly said so in paragraph 1), and that omission from paragraph 2 of the phrase “[i]n the event of my death[ ]” shows Limbaugh wanted Ken’s account set up when the Document was signed.

We need not decide, however, if reasonable people could fairly and honestly read paragraph 1 and the first part of paragraph 2 as the respective litigants suggest, thus making the Document ambiguous. This is because paragraph 1 and the first four lines of paragraph 2 do not stand alone. There are four additional relevant lines in paragraph 2 and they remind us that “ ‘[e]ven seeming contradictions must be harmonized away if that be reasonably possible.’ ” J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264[9] (Mo.banc 1973).

We find the last part of paragraph 2 clarifies Limbaugh’s intent and makes it reasonably possible to harmonize the seeming contradictions between paragraphs 1 and 2. Specifically, we refer to the following:

“Please handle these things immediately and privately as long as I have this much money $380,000.00 loaned to Aspen. If my loan to Aspen is depleted, then this request is cancelled.”

Ken concedes in his brief that Aspen’s loan obligation to Limbaugh exceeded $1,400,000 in February 1993. As such, an ample loan balance due Limbaugh from Aspen existed to fund the immediate creation of a $300,000 account for Ken; consequently, mention in the Document of an account for Ken was not necessary if Limbaugh wanted the account set up in February 1993. He could have accomplished that himself, without enlisting Defendants to do so via the Document.

More than that, if Limbaugh wanted that result, i.e., for Defendants to handle the transfer of $300,000 for Ken’s benefit in February 1993, then it served no purpose and made no sense for Limbaugh to use $380,000 as a contingency figure in the Document. To explain, if Limbaugh wanted Defendants to immediately create Ken’s $300,000 account, but wait until his (Limbaugh’s) death to establish Jackson’s $80,000 account at Aspen, then logically he would have set the contingency figure at $80,000. This follows because Limbaugh would have known a $300,000 transfer for Ken in February 1993 would be covered, but would have had no way of knowing if Aspen might owe him as much as $80,000 at his death.

The last sentence of paragraph 2 — which contains the “depletion” and “cancellation” provisos — further clarifies Limbaugh’s intent. Had Limbaugh wanted Defendants to create a $300,000 account for Ken in February 1993, i.e., coincident with the Document, then putting “depletion” and “cancellation” clauses in paragraph 2 would have been meaningless and illogical, especially when coupled with Limbaugh’s use of $380,000 as his “proviso” figure. If Limbaugh wanted Ken’s account set up in February 1993, the “depletion” and “cancellation” sentence could only have meaning if put in paragraph 1, with the proviso figure set at $80,000.

In sum, we find that Limbaugh’s $380,000 proviso in paragraph 2, his inclusion of the “depletion” and “cancellation” language in that paragraph, his use of “also” as a lead-in to paragraph 2, his use of “immediately” in both paragraphs, and his failure to personally create an account for Ken in February 1993, clearly evidence Limbaugh’s intent that Defendants should await his death, then verify if Aspen owed Limbaugh as much as $380,000, and if so, make both transfers “immediately” after his death. As such, it clearly appears that the attempted disposition of $300,000 for Ken was testamentary in character and hence invalid due to lack of compliance with the formalities of a will. See, e.g., Truax v. Southwestern College, 214 Kan. 873, 522 P.2d 412 (1974); Jenkins v. Meyer, 380 S.W.2d 315, 323 (Mo.1964), overruled on other grounds by In re Estate of LaGarce, 487 S.W.2d 493, 501 (Mo.banc 1972).

Defendants’ first affirmative defense, i.e., that the Document lacked validity because it was an attempt at a testamentary disposition without the formalities of a will, supports summary judgment for Defendants on Ken’s claims. Ken’s Point I claim to the contrary lacks merit.

Point II: Summary Judgment On Ken’s Debt To Biggins

Ken’s second point urges reversal of the summary judgment for Biggins on Biggins’ counterclaim against Ken. He insists reversal is mandated because Biggins’ summary judgment motion “did not address Ken’s affirmative defenses, nor did it demonstrate the lack of a genuine issue of material facts regarding the same.” The problem with Ken’s Point II argument is that his affirmative defenses had potential viability only if the Document was valid.

To explain, when Ken answered Biggins’ allegations of undisputed facts as listed in Biggins’ motion for summary judgment, he (Ken) admitted borrowing $15,000 from Biggins and it had not been repaid. Ken denied, however, owing Biggins anything on the note because “[a]ny obligation of [Ken] to Biggins would be more than offset by the greater amount owed by Biggins to [Ken].” Ken supported his offset allegation by citing the Document, but nothing else.

Earlier, we found the Document lacked validity because it was an attempt at a testamentary disposition without the formalities of a will. Since every one of Ken’s affirmative defenses to Biggins’ promissory note counterclaim were dependent upon the enforceability of the Document, our earlier decision that the Document lacked validity necessarily means that Ken’s affirmative defenses lacked viability. On this record, once the non-viability of Ken’s defenses was shown, Biggins’ right to summary judgment was established. See ITT, 854 S.W.2d at 381. Point II is denied.

Point III: Ken’s Alleged Due Process Violations

Ken’s third and final point asserts that entry of summary judgment for Defendants violated his constitutionally guaranteed right to due process, thus mandating reversal. He notes that Defendants’ summary judgment motion had ninety paragraphs of alleged “undisputed facts,” over 400 pages of supporting documents, and at least eight alternative theories in defense of Ken’s lawsuit, yet neither the facts nor the supporting documents focused on or were tied to a specific defense. Additionally, Ken points out that the trial judge did not specify in the summary judgment which of the multiple alternative defenses was the basis for his ruling.

Ken also correctly observes that Rule 74.04 requires specificity and particularity in summary judgment practice; accordingly, it is not the duty of this court, nor the duty of the non-movant, to sift through a voluminous record to try to sort out material facts from the immaterial. Moore Equip. Co. v. Halferty, 980 S.W.2d 578, 585[6] (Mo.App.1998). From the foregoing, he makes the conclusory argument that to deny him a right to trial “where the basis for summary judgment is unclear and uncertain, coupled with the fact the trial court’s order can be affirmed on an entirely different basis than that posited at trial,” violates his constitutional due process rights and runs afoul of Article I, Section 14 of the Missouri Constitution “by ... denying access to the courts and the opportunity for an effective, focused appeal.”

Ken’s assertion that on this record we could affirm the summary judgment “on an entirely different basis than that posited at trial” is simply wrong. Although it is true a non-movant’s due process rights (as guaranteed by Rule 74.04) are violated if a summary judgment is entered or affirmed based, in whole or part, on matters clearly outside the summary judgment record made by the parties and as authorized by Rule 74.04 (Cody v. Mo. Brd. of Prob. and Parole, 111 S.W.3d 547, 552 (Mo.App.2003); Lawrey v. Reliance Ins. Co., 26 S.W.3d 857, 864 (Mo.App.2000)), that did not happen here. To the contrary, Defendants’ summary judgment motion met the literal requirements of Rule 74.04(c)(1) and Ken has never argued otherwise. He simply says his due process rights were violated because (a) Defendants did not spell out which undisputed facts allegedly supported which defense, (b) the trial court did not specify which one or more of Defendants’ theories it found viable, and (c) in some unexplained way this court is left free to affirm “on an entirely different basis than that posited at trial.” The fallacy of this argument is shown in three ways.

First, due process safeguards are provided in Rule 74.04. See Cody, 111 S.W.3d at 552. Accordingly, if a moving party, after complying with Rule 74.04’s requirements, shows he or she has an “undisputed right to judgment as a matter of law,” ITT, 854 S.W.2d at 380[12], then summary judgment is proper and there is no denial of due process. Henkel v. City of Pevely, 504 S.W.2d 141, 149[9] (Mo.App.1973). That is the situation here.

Second, Ken was not “blindsided” by Defendants’ failure to designate which of their undisputed fact allegations they claimed supported which defense. Cf. Lawrey, 26 S.W.3d at 864. To the contrary, Ken fully responded to everything in the summary judgment record, both before the trial judge and before this court.

Third, this court’s decisions on Points I and II of Ken’s brief clearly show an affir-mance grounded solely on a theory pled in Defendants’ motion and supported by the summary judgment record. In such an instance, there is no due process violation and we are to affirm. In re Estate of Blodgett, 95 S.W.3d 79, 81 (Mo.banc 2003); Henkel, 504 S.W.2d at 149[9]. Point III is denied.

The judgment of the trial court is affirmed.

BARNEY, J., and BATES, C.J., concur.

      . In this opinion we refer to Ken Creviston as "Ken” without intending disrespect. When referring collectively to Aspen and Biggins, we call them "Defendants.”

      . Susan Bradt (a secretary for Aspen) notarized Limbaugh’s and Biggins' signatures on the Document.

      . One of the settlements was reached after Aspen filed a claim in the Limbaugh probate estate for $715,500. The agreement offset Aspen's $715,000 claim against the $865,000 note balance owed by Aspen to Limbaugh, and Aspen paid the executrix the balance of what it owed, i.e., $149,500. The other settlement agreement resolved questions and potential disputes among recipients of Limbaugh’s estate and trust beneficiaries. Ken (who was named in Limbaugh's will) was a party to the latter agreement.

      . Defendants also pled affirmatively that (1) the Document was unenforceable because of Ken’s failure to submit it to the Kansas probate court as a testamentary document; (2) Ken’s only recourse was to use the Document as the basis for filing a creditor’s claim against Limbaugh's estate; (3) the Document was cancelled by “its own terms” because the set-off taken by Aspen reduced the "net” debt owed Limbaugh to less than $380,000 at the time of his death; (4) Ken’s claims were barred by the set-off agreement among Aspen, the Limbaugh estate, and the Limbaugh trust; (5) Ken's claims were barred by the settlement agreement between the legatees and dis-tributees in the probate estate; (6) Ken could not recover because the Document was not supported by consideration; and (7) Ken’s suit was time barred.

      . For example, Ken’s brief recites:
      "Ken has never asserted that he was entitled to recover under the Document because it was a will, intended to be a will, or intended to take effect only upon Limbaugh’s death. Rather, the petition simply alleged that Ken had a right to enforce the provisions written in paragraph 2 that called for the immediate transfer of $300,000.00 to an Aspen account for Ken and distributed to him at the rate of $25,000.00 per year, with interest.

      "As alleged in Ken's Second Amended Petition, the Document simply assigned or allocated $300,000.00 to Ken for immediate transfer to an account in Aspen. Contrary to Defendants’ suggestions, Ken makes no claim that the Document was a testamentary disposition intended to take effect only 'in the event of [Limbaugh’s] death.’ Only the Defendants make that claim. Defendants' 'testamentary disposition' argument is a ‘red. herring' effort to reconstruct paragraph 2 of the Document and to redefine Ken's claims thereunder.”

      . See, e.g., Tuttle v. Muenks, 21 S.W.3d 6, 9[4] (Mo.App.2000) (holding where a contract is ambiguous, a fact question arises as to the parties' intent as to its meaning; in such instance, it is error to grant summary judgment).

      . To support that argument he cites ITT, 854 S.W.2d at 381 (holding "a claimant moving for summary judgment in the face of an affirmative defense must also establish that the affirmative defense fails as a matter of law”).

      . Specifically, Defendants' motion (a) summarily stated the legal basis for the motion, (b) set out with particularity in separately number paragraphs each material fact as to which they claimed there was no genuine issue, (c) made specific references to the pleadings, discovery, exhibits, or affidavits that they claimed demonstrated the lack of a genuine issue as to such facts, and (d) attached to their statement a copy of all discovery, exhibits, or affidavits on which their motion relied.


author: JEFFREY W. BATES, Chief Judge.

text:
    In the Matter of the CARE AND TREATMENT OF Rodney KAPPRELIAN, a/k/a Rodney A. Kapprelian, a/k/a Robert McCloud, a/k/a Rodeau A. Kaprielian, a/k/a Rodney A. Kapprelian, a/k/a Rodney Kaprielian, a/k/a Rodney Cole, a/k/a Allen Kapprielian, Respondent-Appellant.
    No. 26435.
    Missouri Court of Appeals, Southern District, Division Two.
    July 5, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 21, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Emmett D. Queener of Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ryan Bertels, Asst. Atty. Gen. of Jefferson City, MO, for respondent.
   JEFFREY W. BATES, Chief Judge.

After a bench trial, Rodney Kapprelian (“Kapprelian”) was found to be a sexually violent predator (“SVP”) pursuant to the Sexually Violent Predators Civil Commitment Act (“SVPCCA”), §§ 632.480-.513. Kapprelian appeals from the judgment ordering him committed to the custody of the Department of Mental Health (“DMH”) for control, care and treatment until such time as his mental abnormality has so changed that he is safe to be at large. In Kappreliaris sole point relied on, he challenges the sufficiency of the evidence to support the trial court’s factual finding that Kappreliaris mental abnormality makes him more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility. Kapprelian argues there is insufficient evidence to prove this fact beyond a reasonable doubt because: (1) it ignores Kappre-liaris recent good behavior in confinement, which is a better predictor of future behavior than his past history of repeatedly molesting children while not confined; and (2) Dr. Jackson’s opinion about Kappreli-aris future behavior was essentially based on nothing more than clinical judgment, which causes the trial court’s finding to rest on mere speculation. Finding these arguments to be without merit, we affirm.

I. Standard of Review

In order to have Kapprelian committed to the custody of the DMH for treatment, the State had to prove beyond a reasonable doubt that: (1) Kapprelian has a congenital or acquired condition affecting his emotional or volitional capacity that predisposes him to commit sexually violent offenses to a degree that causes him serious difficulty in controlling his behavior; and (2) he is more likely than not to engage in predatory acts of sexual violence if not confined. § 632.480(2); § 632.480(5); § 632.495; Thomas v. State, 74 S.W.3d 789, 791-92 (Mo. banc 2002); In re Coffel, 117 S.W.3d 116, 121 (Mo.App.2003). Kap-prelian only challenges the sufficiency of the evidence to establish the second element.

We assess the sufficiency of the evidence to support a judgment of commitment in a SVPCCA case by the same standard used in criminal cases. See Smith v. State, 148 S.W.3d 330, 335 (Mo.App.2004); In re Care and Treatment of Collins, 140 S.W.3d 121, 125-26 (Mo.App.2004); In re Care and Treatment of Pate, 137 S.W.3d 492, 496 (Mo.App.2004). Review of a bench-tried criminal case is the same as for a jury-tried case. State v. Garriott, 151 S.W.3d 403, 410 (Mo.App.2004); State v. Daniels, 18 S.W.3d 66, 67-68 (Mo.App.2000). Appellate review is limited to determining whether sufficient evidence was admitted at trial from which a reasonable trier of fact could have found each element of the offense was established beyond a reasonable doubt. State v. Mann, 129 S.W.3d 462, 465 (Mo.App.2004); State v. Thompson, 112 S.W.3d 57, 62 (Mo.App.2003); Daniels, 18 S.W.3d at 68. It is not our function to reweigh the evidence. State v. Winsor, 110 S.W.3d 882, 885 (Mo.App.2003). Instead, we only determine whether the judgment is supported by sufficient evidence. Id. “The credibility and weight of testimony are for the fact-finder to determine. The fact-finder may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances and other testimony in the case.” State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002) (citation omitted).

When the sufficiency of the evidence is challenged, we view the evidence in the light most favorable to the trial court’s judgment, “accepting as true all evidence favorable to the state, including all favorable inferences drawn from the evidence and disregarding all contrary evidence and inferences.” Whitnell v. State, 129 S.W.3d 409, 415 (Mo.App.2004). In reviewing the evidence, however, “this Court will not give the State the benefit on any unreasonable, speculative, or forced inferences; nor will we supply any missing evidence.” In re Care and Treatment of Burgess, 147 S.W.3d 822, 830 (Mo.App.2004). We will not reverse a trial court’s decision based on insufficiency of the evidence unless there is a complete absence of probative facts supporting the judge’s conclusion. See Smith, 148 S.W.3d at 335. The following summary of the evidence has been prepared in accordance with these principles.

II. Statement of Facts

Between August 1984 and June 1995, Kapprelian sexually abused 13 young boys in Washington, California, Florida and Missouri. This pattern of molestation began when Kapprelian was 29 years old and continued until he was approximately 40 years old. Several of Kapprelian’s offenses against children were committed while he was on parole for prior convictions of sexually molesting children. In 1995, he was incarcerated in Missouri after pleading guilty to statutory sodomy in the first degree for engaging in deviate sexual intercourse with a 13-year-old boy.

Just prior to Kapprelian’s release from confinement on the sodomy conviction in April 2003, the State filed a petition alleging that Kapprelian was a SVP who needed to be committed to the DMH for control, care and treatment. The trial court entered an order appointing Dr. Steve Jackson, a licensed psychologist employed by the DMH, to conduct an evaluation of Kapprelian to determine whether he met the criteria for a SVP. Dr. Jackson had previously conducted over 20 such SVP evaluations. As a part of the evaluation process, Dr. Jackson interviewed Kappreli-an and also reviewed approximately 2,000 pages of documentary information concerning him.

A bench trial was held July 9, 2004. Dr. Jackson was the only witness who testified. His written evaluation of Kapprelian also was admitted in evidence. The facts set forth below are drawn from Dr. Jackson’s trial testimony or his report.

Dr. Jackson opined to a reasonable degree of psychological certainty that Kap-prelian suffers from the mental abnormality of pedophilia. This condition consists of “recurrent intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with children.” Based on Kapprelian’s pattern of offenses, he is attracted to male children. Pedophilia does not go away and constitutes a “lifelong and chronic problem” for persons afflicted by it. Kapprelian’s mental abnormality of pedophilia predisposes him to commit sexually violent crimes because it causes him to have serious difficulty in controlling his behavior. There are two factors which tend to strongly support this conclusion. The first is Kapprelian’s history of being a repeat sexual offender. This factor is significant because Kapprelian molested a large number of child victims over a long period of time, and incarceration did not deter him from sexually abusing more children. The second is Kapprelian’s history of reoffending while on parole or under court supervision for a prior sexual offense involving a child. In Dr. Jackson’s opinion, such past behavior is the best predictor of future behavior.

After Kapprelian was incarcerated in Missouri, his pedophilia did not respond to the treatment offered in prison. Although he completed the first phase of the Missouri Sex Offender Treatment Program (“MOSOP”), he was “kicked out” of the program before completing the second phase for failure to apply the concepts he had learned during the first phase. Kap-prelian was found to be evasive, untruthful and manipulative by MOSOP staff, and they considered him to be at a “very, very high risk of reoffending.” One MOSOP therapist concluded that Kapprelian had “no intention of surrendering to the change process which requires rigorous honest ... self-examination.” Kapprelian also did not understand what triggered him to sexually abuse children, and he had only a “vague ill-defined” plan to avoid relapses if released from confinement.

In addition to the mental abnormality of pedophilia, Dr. Jackson also diagnosed Kapprelian as suffering from sexual masochism. This condition is defined as “sexually arousing fantasies, urges or behaviors wherein acts that cause either humiliation or physical suffering of a victim are sexually exciting to an individual.” Kapprelian admitted, and his records also confirmed, that he tried to get the children he sexually abused to harm themselves for Kappre-lian’s own sexual gratification.

Dr. Jackson testified that Kapprelian’s mental abnormality of pedophilia, coupled with the additional diagnosis of sexual masochism, makes him more likely than not to engage in predatory acts of sexual violence if not confined to a secure facility. This conclusion was based upon two independent considerations: (1) the results of Kapprelian’s score on the Static-99 assessment; and (2) a review of other relevant factors drawn from the relevant professional literature on the subject.

Dr. Jackson first explained his assessment of Kapprelian using the Static-99. This assessment tool is an actuarial instrument that is widely used and accepted in the field of psychology to make statistical predictions about the likelihood of a sex offender being reconvicted of another sexual offense within five, ten and fifteen year periods after being released from confinement. It measures 10 risk factors for reconviction. Kapprelian scored an 8 on the Static-99 assessment, which predicted his risk of reconviction as 33% within five years, 52% within ten years, and 57% within fifteen years. The Static-99 is generally accepted as a reliable instrument for predicting future sexually violent behaviors by professionals who evaluate sexually violent predators. It has been validated and cross-validated approximately 15 times, and it has been tested for inter-rater reliability approximately five times.

Because a prudent evaluator would not base his or her SVP assessment solely upon the results of the Static-99, Dr. Jackson also considered other risk factors identified as significant by professional research on the subject. Dr. Jackson described the additional factors as “aggravators.” He identified the following aggravators in his risk assessment of Kapprelian:

1. he suffers from the deviant sexual preference of pedophilia;
2. he has engaged in sexual masochism with children;
3. he has had a consistently high number of offenses against children over a long period of time;
4. he suffers from multiple deviant sexual preferences in the form of pedophilia and sexual masochism;
5. he suffers from an intimacy defect which causes him to identify romantically with children more than he does with adults;
6. while on parole for one sex offense against a child, Kapprelian absconded and molested another child;
7. Kapprelian suffers from a lack of self-regulation, as demonstrated by his past history of extensive drug and alcohol abuse and homosexual prostitution as a young man; and
8. he did not complete MOSOP while in prison.

Dr. Jackson concluded that each aggravator increased Kapprelian’s risk of reoffend-ing.

At the conclusion of Dr. Jackson’s direct examination, he testified that Kapprelian’s mental abnormality makes him more likely than not to engage in predatory acts of sexual violence if not confined to a secure facility. Kapprelian’s behavior is predatory because he places himself in a position to meet children for the primary purpose of victimizing them.

The trial court found the evidence to be “one-sided and overwhelming” and made a specific factual finding that “[Kapprelian’s] mental abnormality makes him more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility.” This appeal followed.

III. Discussion

In attacking the sufficiency of the evidence, Kapprelian first takes issue with Dr. Jackson’s testimony that the best predictor of Kapprelian’s future behavior is his past behavior of repeatedly molesting children over a long period of time when not confined. Kapprelian argues that Dr. Jackson’s opinion ignores Kapprelian’s recent good behavior while confined in Missouri. As evidentiary support for Kappre-lian’s argument, he points out that: (1) he had only two minor conduct violations in prison, and neither involved sexual misconduct; (2) otherwise, he abided by prison rules; (3) he did not seek to obtain child pornography while in prison; and (4) he has been cooperative during his pretrial detention at Farmington and has engaged in no inappropriate sexual behavior there. Citing State v. Huss, 666 N.W.2d 152 (Iowa 2003) (Huss I), Kapprelian argues that evidence of recent overt acts, attempts or threats is necessary to support a prediction of future danger. We find this argument unpersuasive for two reasons.

First, Kapprelian’s recent behavior in confinement was considered by Dr. Jackson, but he did not find it to be significant in assessing Kapprelian’s risk of reoffend-ing. Dr. Jackson testified that the above-referenced facts only demonstrated Kap-prelian’s ability to maintain control of himself in prison. The doctor discounted the importance of such behavior because it is common for pedophiles to be fairly well-behaved in prison and have few conduct violations when they are away from children. Dr. Jackson opined that Kappreli-an’s ability to control himself in the rigidly-controlled environments of prison and pretrial detention at Farmington presented a significantly different issue than his ability to control himself “around children or ... in the community at large.” It was up to the trial court to weigh Dr. Jackson’s testimony on that subject and decide what value to place upon it. See Whitnell v. State, 129 S.W.3d 409, 416 (Mo.App.2004).

Second, we believe Kappreliaris reliance on Huss I is misplaced. In that case, Huss murdered his girlfriend, but he was found not guilty by reason of insanity after a second bench trial. Huss I, 666 N.W.2d at 155. The second trial did not occur until after Huss had been confined in a mental institution for 17 years, during which time he had been a model prisoner. To prevent Huss’ release after the second trial concluded, the trial court conducted a civil commitment hearing pursuant to Iowa Rule of Criminal Procedure 2.22(8). Id. at 155. The court had to decide whether Huss was still mentally ill and whether he was a danger to himself or others. Id. at 157-58 n. 1. With regard to the second issue, two doctors testified that Huss was a danger to himself or others based on his past behavior, which both agreed was the best predictor of Huss’ future behavior. Id. at 156-57. The trial court ordered Huss’ continued commitment after finding that he was mentally ill and was dangerous to himself and others. Id. at 159-60. On appeal, Huss challenged the sufficiency of the evidence to support these findings. The Iowa Supreme Court concluded the proof of present dangerousness was insufficient because there was no evidence of a recent overt act, attempt or threat by Huss against himself or others. Id. at 161.

We find Huss I inapposite because proof of a recent overt act was not required in order to find that Kapprelian was a SVP. In Missouri, pleading and proof of the commission of a recent overt act is not required unless the person alleged to be a SVP is not in the custody of an agency with jurisdiction at the time the petition is filed and has not been in the custody of such an agency within the preceding 10 years. See § 632.484.1(1-2). At the time the petition in the case at bar was filed, Kapprelian was incarcerated at the Farm-ington Correctional Center. Therefore, he was in the physical custody of the Missouri Department of Corrections, which is an agency with jurisdiction. § 632.480(1). That being so, proof of a recent overt act was not necessary.

The same is true under Iowa’s SVP law. See In re Detention of Huss, 688 N.W.2d 58, 64 (Iowa 2004) (Huss II). After Huss’ civil commitment order was reversed and remanded in Huss I, he was found to be a SVP in a different proceeding. On appeal, Huss relied on Huss I and argued he could not be found to be a SVP absent proof of a recent overt act. The Iowa Supreme Court held that its SVP law contains no such requirement with respect to a person presently confined for a sexually violent offense:

Huss urges that the basis for holding him in future confinement has been resolved against the claims of the State by our decision in [Huss /]. As we have noted, the determination in that case was premised on the lack of a recent overt act, which was deemed to be necessary for a rule 2.22(8) commitment. As discussed in a subsequent division of this opinion, the existence of a recent overt act is not an essential requirement with respect to a petition for commitment as a sexually violent predator filed under Iowa Code section 229A.4(1). In re Detention of Gonzales, 658 N.W.2d 102, 104-05 (Iowa 2003). Consequently, Huss’s preclusion issue must fail.

Huss II, 688 N.W.2d at 64. The explanation for that conclusion was set out in a later part of the opinion:

The attorney general’s petition against Huss was filed pursuant to Iowa Code section 229.A.4(1), which is a statute dealing with persons who are “presently confined.” In Gonzales, 658 N.W.2d at 104-05, we held that, in order for a petition to be filed under the “presently confined” alternative, the current confinement must be for a sexually violent offense. Gonzales, 658 N.W.2d at 104-05. That is because under section 229A.4(1) the offense leading to the current confinement may be a substitute for the requirement of showing a recent overt act if it was a sexually violent offense. Id.

Huss II, 688 N.W.2d at 65. Here, Kap-prelian was incarcerated for a sexually violent offense when the State’s petition was filed, so proof of a recent overt act was not required. Kapprelian’s first argument is without merit.

In Kapprelian’s second argument, he contends Dr. Jackson’s testimony is too speculative to provide an adequate eviden-tiary basis for the trial court’s finding that Kapprelian is more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility. Kapprelian’s complaint is that Dr. Jackson’s opinion about Kapprelian’s future behavior amounts to nothing more than clinical judgment, and “the use of clinical judgment to assess the risk of reoffense has been shown to be no more reliable than flipping a coin....” In re Coffel, 117 S.W.3d 116, 129 (Mo.App.2003).

Kapprelian’s argument fails because it is based on an unsound premise: that Dr. Jackson’s opinion was based solely on his clinical judgment. That is simply not the case. Dr. Jackson’s assessment of Kap-prelian’s risk of reoffending was based upon the factors listed in the Static-99 and other empirical risk factors drawn from professional research literature on the subject. The Static-99 is an actuarial instrument which is accepted by professionals in the field as a reliable and valid instrument by which to assess the risk of reconviction of a sexually violent offense. Dr. Jackson scored Kapprelian based on the 10 risk factors utilized by the Static-99. In addition, Dr. Jackson testified that a prudent evaluator would not limit his or her assessment to just those static factors because other dynamic factors affecting the risk of reoffending have been identified by the relevant professional research on the subject. This research supported the use of each of the additional dynamic factors that Dr. Jackson utilized in evaluating Kappre-lian. In sum, Dr. Jackson’s opinion was based on scientifically-derived empirical factors, rather than naked clinical judgment. That distinguishes the case at bar from Coffel, which involved a female individual for whom there was “no data or research as to the accuracy of clinical judgment as a means of risk assessment[.]” Coffel, 117 S.W.3d at 123. Therefore, Dr. Jackson’s testimony provided sufficient evidentiary support to sustain the trial court’s finding. See Whitnell v. State, 129 S.W.3d 409, 415-16 (Mo.App.2004) (a single psychiatrist’s expert testimony provided sufficient competent and substantial evidence to submit the case to the jury in a SVP case). Kapprelian’s second argument has no merit.

IV. Decision

It was the trial court’s responsibility to weigh the facts and reach a conclusion about the likelihood that Kapprelian will continue to engage in predatory acts of sexual violence because of his pedophilia and sexual masochism. Neither of Kap-prelian’s challenges to Dr. Jackson’s testimony, which formed the basis for the trial court’s findings, have any merit. Accordingly, we hold that the judgment is supported by substantial evidence. See In re Care and Treatment of Francis, 159 S.W.3d 873, 880 (Mo.App.2005). Kappreli-an’s point on appeal is denied, and the judgment is affirmed.

PARRISH, P.J., and SHRUM, J., concur.

      . All references to statutes are to RSMo (2000).

      . This information included: (1) police and court records concerning Kapprelian's sexual offenses against children in Missouri, California and Florida; (2) records from Florida's Department of Children and Families and its Department of Health concerning several children who were sexually abused by Kap-prelian; (3) records from Missouri’s Division of Social Services concerning several children who were sexually abused by Kapprelian; (4) records from the Missouri Department of Corrections concerning Kapprelian’s incarceration there from 1995-2003; (5) records of Kapprelian’s participation in the Missouri Sex Offender Treatment Program; (6) an end-of-confinement assessment report on Kapprelian performed by Dr. Derrise Becker, a Missouri Department of Corrections psychologist; (7) records from Kapprelian’s interim placement at the Missouri Sex Offender Treatment Center in Farmington, where he was sent after being released from prison; and (8) Kappreli-an’s scores on the Minnesota Sex Offender Screening Tool-Revised and the Static-99.

      . Validation means the instrument is actually able to measure what it purports to measure in a test population. Cross-validation means the instrument measures what it is supposed to measure when applied to a different population of test subjects. Inter-rater reliability means different psychologists using the instrument would arrive at the same score when evaluating the same test population.

      . This factor is significant because research indicates that a person who suffers from more than one deviant sexual interest is at a greater risk of reoffending. In other words, Kappreli-an is more at risk to reoffend because he suffers from pedophilia and sexual masochism than he would be if he suffered from pedophilia alone.