author: RONALD R. HOLLIGER, Judge.

text:
    Chad A VULGAMOTT, Appellant, v. Brent A. PERRY, Respondent, Toni L. Detwiler, Defendant and Shelter Mutual Insurance Company, Respondent.
    No. WD 63981.
    Missouri Court of Appeals, Western District.
    Dec. 7, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 1, 2005.
    Application for Transfer Denied March 1, 2005.

      Andrew Jay Gelbach, Warrensburg, John Turner, Kansas City, Jeffrey Bauer, Springfield, for Appellant.
    John Kent Thomas, St. Joseph and Thomas Oswald, Jr., Kirksville, for Respondent.
    Before THOMAS H. NEWTON, Presiding Judge, HAROLD L. LOWENSTEIN, Judge, and RONALD R. HOLLIGER, Judge.
   RONALD R. HOLLIGER, Judge.

Chad Vulgamott appeals a judgment denying his request to enforce a claimed settlement of his lawsuit against a co-employee, Brent Perry, for injuries from an automobile accident and a further finding that the court lacked subject matter jurisdiction because of the exclusivity provisions of the Workers’ Compensation Act, Section 287.120.2, RSMo. (2000). Although Vulgamott raises six points on appeal we need not address four of them because we find that the trial court did have subject matter jurisdiction over the alleged settlement and that the trial court erred in finding that no valid enforceable settlement agreement existed. Reversed and remanded.

FACTS AND PROCEDURAL BACKGROUND

Chad Vulgamott was a passenger in a vehicle driven by Brent Perry which was involved in a collision with another driver on May 25, 1994. Shelter Mutual Insur-anee Company insured Perry’s vehicle. At the time of the accident, Perry and Vulga-mott were fellow employees acting within the course and scope of their employment.

On December 5, 1996, Vulgamott filed a lawsuit in Livingston County alleging negligence against Perry and the driver of the other vehicle seeking compensation for the injuries sustained in the car accident. The case was eventually set for trial on May 21, 2001. Moments before trial was to begin, the parties told the court that they had reached a settlement agreement. The agreement provided that Perry’s liability insurance carrier, Shelter, would pay $25,000 plus the statutory court costs to Vulgamott, that Perry would confess a judgment for one million dollars, and that the format of the written settlement agreement would follow the format utilized in another case called Noland v. Welch. It was the intent of the settlement that a bad faith claim would then be litigated against Shelter.

Before the jury was discharged, a copy of the Noland v. Welch agreement was faxed to the Livingston County Courthouse and, in turn, faxed to Shelter’s in house counsel for approval. Shelter’s in house counsel approved the agreement and authorized Perry’s attorney to enter into the settlement agreement according to the aforementioned terms. The parties then informed the court that the case had been settled, a formal record was made concerning the agreement, and the jury was discharged.

After making a record of the agreement in open court, the attorneys for Vulgamott and Perry went to an office to prepare a written version of the settlement agreement. A written version of the agreement was prepared and signed by the attorneys and then sent to Shelter for final approval and signature.

Over the course of the next year, the parties communicated extensively about the language of the final version of the written agreement to no avail. Both Shelter and Perry eventually filed motions to enforce the settlement agreement. Both argued that a valid and binding settlement agreement had been reached on May 21, 2001.

Subsequently, attorneys for all parties agreed to meet on May 31, 2002, for the purpose of finalizing the written settlement agreement. Prior to that meeting the Missouri Supreme Court handed down its opinion in State ex. rel Taylor v. Wallace, 73 S.W.Sd 620 (Mo. banc 2002), which Shelter believed divested the circuit court of jurisdiction over the subject matter of the Vulgamott v. Perry lawsuit giving exclusive subject matter jurisdiction to the Labor and Industrial Relations Board under Section 287.120.2.

At the May 31, 2002 meeting, Shelter’s counsel announced that it was no longer interested in pursuing a written version of the settlement agreement and took the position that Vulgamott had repudiated the settlement agreement by refusing to execute a written settlement contract.

On June 3, 2002, Vulgamott filed a motion to enforce the settlement agreement he claimed was reached May 21, 2001. Now all parties had filed motions arguing that a valid settlement had been reached on May 21, 2001. Neither Perry nor Shelter filed suggestions in opposition to Vul-gamott’s motion to enforce the settlement agreement. Rather, both filed motions to dismiss Vulgamott’s action for lack of subject matter jurisdiction arguing that, per the Taylor decision, workers’ compensation law provided Vulgamott’s exclusive remedy.

The circuit court heard arguments on the motions to dismiss and Vulgamott’s motion to enforce the settlement agreement on March 6, 2003. On August 22, 2003, the court entered its order granting Shelter’s and Perry’s motions to dismiss for lack of subject matter jurisdiction and, in the alternative, found that there was insufficient proof that any binding settlement agreement was agreed to by all parties on May 21, 2001. Vulgamott now appeals claiming, in part, that the trial court erred in refusing to enforce a valid enforceable settlement agreement reached by the parties on May 21, 2001.

We must first address, however, Vulga-mott’s point on appeal that the trial court erred in dismissing the case for lack of subject matter jurisdiction. Shelter claimed in its motion to dismiss, and the trial court agreed, that after the Taylor decision the trial court had no subject matter jurisdiction because Taylor had extended the employer’s immunity to co-employees unless there was a pleading and proof of the “something extra” in the conduct of the negligent co-employee.

Vulgamott contends on appeal that there are two aspects to this issue. First, he contends that he pled, or should have been allowed to plead by amended petition, the necessary “something extra.” Secondly, he contends that the trial court retained subject matter jurisdiction to enforce a settlement contract between the parties even though it no longer had jurisdiction over the underlying suit after Taylor. Because we agree that the trial court had jurisdiction to enforce the settlement agreement, we do not reach the first aspect described above.

JURISDICTION

Vulgamott argues that enforcement of a settlement agreement is a separate or collateral contract action from the underlying suit. Under Vulgamott’s theory, once a settlement agreement was reached, jurisdiction over the underlying suit was irrelevant because that suit had been suspended as a result of the parties on-the-record settlement agreement. Thus, Vulgamott avers, that after May 21, 2001, (the date of the alleged settlement agreement), all that remained of this suit was a contract action, and the circuit court had jurisdiction to enforce the settlement contract (if validly formed) even if the court no longer had jurisdiction over the underlying action.

Conversely, Shelter argues that the circuit court never had subject matter jurisdiction over the original action because the Supreme Court didn’t change the law in its Taylor opinion but simply interpreted existing law. Shelter asserts that a lack of subject matter jurisdiction over Vulgamott’s original action means his original action is a nullity and never existed and, thus, any settlement pursuant to such an action is invalid. Shelter also argues that there was no consideration for the alleged settlement because there was no valid claim over which the trial court had jurisdiction. We disagree.

Settlement agreements are a species of contract. “A motion to compel settlement adds to a pending action a collateral action for specific performance of the settlement agreement.” McKean v. St. Louis County, 964 S.W.2d 470, 471 (Mo.App.1998) (court rejected argument that settlement could only be enforced by a separate action for that purpose). In Hauk v. First National Bank of St. Charles, 680 S.W.2d 771 (Mo.App.1984), the bank had foreclosed under a second and third deed of trust property on which the Hauks held the first mortgage. The Hauks did not want to accept payment of the balance due of approximately $58,000 because of tax reasons instead asking for a premium for early payment and release. Id. at 772. The Hauks believed in good faith, but mistakenly, that them note did not allow prepayment. Subsequently the bank by letter offered to pay $68,000. The Hauks accepted but the bank then declined saying it had made a unilateral mistake in the amount. The Hauks sued on the settlement contract and the trial court found for the bank. Id. at 773. On appeal the bank argued that because there was no prohibition of prepayment that there was no consideration for its offer of $68,000 to discharge the note and deed of trust. The court of appeals reversed holding that “compromise of a doubtful claim is good consideration for a contract.” Id. at 775. There is certainly no claim here that Vul-gamott’s claim against his co-employee for negligent operation of a motor vehicle was not brought in good faith as to the state of Missouri law before Taylor. In fact, Perry never raised a defense under the Workers’ Compensation Act until after Taylor was handed down.

Shelter’s argument fails even if we consider the trial court to have lacked subject matter jurisdiction from the initial filing of Vulgamott’s suit. In Groh v. Groh, 910 S.W.2d 747 (Mo.App.1995), this court vacated a decree of dissolution of marriage because the trial court lacked subject matter jurisdiction over the action yet still found enforceable the partial settlement agreement entered into before the decree. We said “that the fact that the trial court lacked subject matter jurisdiction does not render the partial settlement agreement invalid.” Id. at 752. In part this was likely because both parties. had a legal interest in the property separate from the dissolution action. Similarly here, the parties had a legal interest in the claimed settlement contract separate from the original action.

Finally, Shelter argues that this case is different because the settlement agreement calls for the court to enter a judgment pursuant to confession and that the trial court cannot enter a confession of judgment on a claim it has no jurisdiction over. Shelter cites no authority for this proposition and we could consider it abandoned. State v. Tilley, 104 S.W.3d 814, 824 (Mo.App.2003). Regardless, we reject the conclusion because it fails to recognize the distinction between the original claim before the court and the separate contractual obligation, if any, created by the parties agreement.

We find that the trial court had jurisdiction over the alleged settlement agreement.

Was a Binding Settlement Agreement Reached?

Alternatively, the trial court ruled that a binding and enforceable settlement agreement had not been reached on May 21, 2001. The court also found, however, that although Vulgamott had not expressly repudiated the agreement that was reached, he had sought to modify its terms. The court ruled that these attempts to modify the terms amounted to counter-offers and rejections of the prior offers resulting in no agreement being reached. Vulgamott claims that the trial court erred in finding that no settlement agreement existed.

This court’s review of a court-tried case is governed by the standard enumerated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Gillham v. LaRue, 136 S.W.3d 852 (Mo.App.2004). Under the Murphy v. Carron standard, the appellate court will affirm the judgment of the trial court unless there is no evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. 536 S.W.2d at 32. A party requesting specific performance of a settlement agreement has the burden of proving, by clear, convincing and satisfactory evidence, his claim for relief. Payne v. E & B Carpet Cleaning, Inc., 896 S.W.2d 650, 651 (Mo.App.1995).

Vulgamott argues in point 4 of his appeal that a binding settlement agreement was reached on May 21, 2001, when the parties announced to the court, on the record, the settlement and its broad terms. Vulgamott seeks specific enforcement of the settlement agreement. In support of his position, Vulgamott points to the fact that all parties filed motions to enforce the May 21, 2001, settlement agreement.

The trial court made extensive findings of fact and conclusions of law. In its findings of fact the trial court found, inter aha:

A settlement agreement was reached between the parties at the Livingston County Courthouse on May 21, 2001. The transcript of proceedings being Plaintiffs Exhibit # 1, reflect [sic] settlement agreement required the Circuit Court to enter judgment in the amount of one million dollars against defendant Perry in the tort case in accordance with the confirmation of judgment made by defendant Perry as part of the settlement agreement. Additionally, Interve-nor Shelter Mutual Insurance Company was to pay $25,000 to Plaintiff plus statutory Court costs. A jury panel had been summoned and was waiting in the hallway as the agreement was reached, (emphasis added).
Later that day on May 21, 2001, Plaintiffs attorney met at Defendant Perry’s attorney’s office to draw a proposed agreement to send to Intervenor Shelter Mutual Insurance Company for signature. Plaintiffs attorney modified the release language of paragraph 4. Inter-venor Shelter rejected the proposed change of language.
Intervenor Shelter Mutual Insurance Company objected to the modification of paragraph 4 concerning the release language requested by Plaintiff. Interve-nor Shelter desired to enforce the agreement and filed a Motion to enforce Settlement relating to the agreement containing the original language forming the basis of the agreement and based upon language utilized in another case entitled Noland v. Welch.
The court does not find that Plaintiff ever expressly repudiated the agreement reached in court but did attempt to modify it.

The court also made conclusions of law, finding inter alia:

The original tort case was a nullity (after Taylor v. Wallace) and any judgment entered thereon would be void ab initio; The court has no jurisdiction in an ancillary matter when the Court is without subject matter jurisdiction in the underlying tort case.
In the alternative, if the court had jurisdiction over the ancillary issue of enforcement of the alleged settlement, there is insufficient proof that any binding settlement was agreed upon by all the parties. Under basic contract law, Plaintiffs attempts to modify the original agreement and Intervenor’s later offer amount to counter-offers and rejections of the prior proposed offers.

Vulgamott argues first, that the finding that no enforceable settlement agreement was formed is not supported by the evidence and is against the overwhelming weight of the evidence. He also argues that the trial court’s conclusion of law was incorrect in opining that attempts to modify the original agreement and the exchange of offers and counter offers to modify the original agreement “amounted to a counter-offer and rejection of the prior proposed offers.”

Shelter argues in response, that the agreement announced in open court on the day of trial was “preliminary,” “tentative,” and was essentially an agreement to agree if the parties could agree on something in writing at a later date. Shelter urges that no enforceable settlement was agreed upon because the parties were never successful in their intent to “memorialize the settlement in written form.” Shelter argues further that there was no “sufficient consideration” for the agreement and also that the proposal and rejection by Vulgamott of different versions of the settlement document not only constituted a rejection of Shelter’s proposed language but a repudiation of any original agreement if one existed. We will address the parties various arguments in turn.

SUFFICIENCY OF CONSIDERATION

At two different points Shelter asserts that either the consideration for any settlement agreement was not sufficient or that there was no consideration. Shelter cites no legal authority in connection with either argument. The assertions are contained in only one or two sentences on each occasion. The only further development of this argument is the statement that Perry would pay no monies to Vulgamott and there was to be no release of Perry by Vulgamott.

Compromise of even a doubtful claim is sufficient consideration for a settlement agreement. Holt v. Jamieson, 847 S.W.2d 194, 197 (Mo.App.1993). The mutual promises expressed to the court when the settlement was announced are sufficient consideration in a bi-lateral contract. Sumners v. Serv. Vending Co., 102 S.W.3d 37, 41 (Mo.App.2003). Those mutual promises both imposed new duties and liabilities on each party. Shelter points to no authority that the insured, rather than his insurer, must pay monetary consideration to the claimant. The alleged agreement did not fail from lack of consideration.

LACK OF A WRITING

Shelter makes numerous references to the fact that no written settlement was executed and that the record made on the trial date indicates that the parties intended to enter into a written agreement. Again, there are no citations to authority that a writing was legally required for the agreement to be enforceable. To the contrary, a compromise settlement need not be in writing unless the subject matter is within the statute of frauds. Byrd v. Liesman, 825 S.W.2d 38, 39 (Mo.App.1992). Nothing was expressed on the record before the court that the settlement was tentative, preliminary, or conditional. Collins v. Swope, 605 S.W.2d 538, 540 (Mo.App.1980) (merely because parties stipulate they will reduce oral agreement to writing does not indicate intention that parties will require writing as condition precedent to being bound by the agreement). The record belies such an argument since the parties specifically mentioned the form of the agreement from another case, telephoned Shelter’s counsel and had him approve the form from the other case, and marked that form as an exhibit. Shelter’s argument undercuts itself by expressing the issue as the parties’ intent to “memorialize the agreement.” Any agreement entered into on the trial date does not lack enforceability just because it was not reduced to writing.

WAS A BINDING AGREEMENT REACHED ON THE TRIAL DATE?

Vulgamott argues that all of the essential terms of a valid compromise settlement agreement were announced on the record on the day of trial, May 21, 2001. In fact, the trial court found that there was such an agreement. Our review of the record supports that finding. A contract will be valid and enforceable even if some terms may be missing or left to be agreed upon as long as the essential terms are sufficiently definite to enable the court to give them exact meaning. Raskas Foods, Inc. v. Southwest Whey, Inc., 978 S.W.2d 46, 50 (Mo.App.1998). The record of the settlement agreement made on the trial date was far more complete than is often the case. The parties offered the court the form of the agreement, specified the amount to be paid by Shelter immediately, and the amount of the subsequent judgment to be entered. Counsel for Perry stated:

Well, the only other thing I’d add your honor, is obviously the agreement that’s been marked was for a different case so the amounts and the names a lot of those things are going to be different in the agreement for this case. But the principle of the agreement has been agreed to.

The record even reflects that Shelter requested a modification of the form of the Noland v. Welch agreement and that Vulgamott agreed to that language change.

The present case bears much similarity to another case where the contractual validity of a settlement agreement was at issue. Fair Mercantile Co. v. Union-May-Stern Co., 359 Mo. 385, 221 S.W.2d 751 (1949). In Fair Mercantile, the parties stipulated to an agreement in open court where a fixed settlement amount was agreed to and basically nothing else. Id. at 755. Subsequently, the plaintiffs refused to abide by the settlement agreement arguing, among other things, that the terms of the agreement were incomplete and thus the agreement was unenforceable. Id. The Missouri Supreme Court affirmed the circuit court’s enforcement of the settlement agreement and, in so ruling, held that an open court stipulation as to a settlement agreement “is a contract but made with more solemnity and with better protection to the rights of the parties than an ordinary contract made out of court.” Id. The Court held that the settlement contract was complete and enforceable because the essential terms were definite even though some terms were left to be performed or agreed to.

Shelter points to an abundance of communication between the attorneys as evidence of no mutual assent, including a series of letters that took place between the attorneys after the in court stipulation. The bulk of the communications relate to all parties wrangling over various wordings of the May 21, 2001, agreement. Over the course of the year’s worth of correspondence, Shelter (the party now denying an agreement ever existed) consistently objected to any deviations from the Noland v. Welch format (the format agreed to in open court).

None of the disputes between the attorneys about the language of the agreement appear to revolve around any essential term of the settlement or some essential element that was not covered in court on May 21, 2001. The amounts in issue remained undisputed, as does the format of the agreement. The written memorialization was the stumbling block the attorney’s could not overcome. A compromise settlement need not be in writing unless the subject matter is within statute of frauds, Liesman, 825 S.W.2d at 39, and a contract will be enforceable as long as all essential terms are sufficiently definite to enable the court to give them exact meaning. Raskas, 978 S.W.2d at 50. Here the essential terms are present and they need not to have been in writing to be enforceable. The trial court, therefore, erred in finding that the parties did not enter into a legally enforceable settlement agreement on May 21, 2001.

Finally, Shelter appears to argue that the settlement agreement cannot be enforceable against Shelter because Shelter was not in court on the trial date. This argument necessarily implies that the attorney hired by the insurer to defend the insured does not have the authority to settle the case. Again, Shelter cites no legal authority for this proposition. The principal agent relationship between an insurer and the attorney hired by the insurer to defend an insured is a clearly established principle of insurance law. Regardless, Shelter’s express approval of the settlement by phone call pri- or to the stipulation in court precludes any need to discuss the agency relationship. The record reveals that Shelter gave express approval of the essential terms of the settlement agreement to the defense counsel that Shelter hired to represent Perry and that approval by Shelter was stated upon the record.

DID SUBSEQUENT NEGOTIATIONS OR NEGOTIATION ATTEMPTS CONSTITUTE A REPUDIATION OF THE SETTLEMENT AGREEMENT OR OTHERWISE INVALIDATE THE AGREEMENT?

In its next point on appeal Vulgamott contends that the trial court variously erred in its conclusion of law that offers, counter offers, and negotiations taking place after the settlement agreement was reached served to invalidate the agreement. He contends that this finding was not supported by the evidence, was against the weight of the evidence, and erroneously declares and applies the law.

Shelter responds that there was no enforceable agreement based upon legal principles and authorities dealing with the effect of offers, counter offers and the principle of acceptance. Those principles and arguments have no application, however, if these parties previously entered into a binding settlement agreement, unless post agreement events would amount to a repudiation of the original agreement by Vulgamott who now seeks to enforce it. See Wooten v. DeMean, 788 S.W.2d 522, 526 (Mo.App.1990) (“Mere requests to change the terms of a contract are not, in and of themselves, enough to constitute repudiation.”). Vulgamott points out that the trial court made a finding of fact that Vulgamott never “expressly repudiated the agreement reached in court, but did attempt to modify it.” Perhaps recognizing the principle stated above, that attempts to renegotiate or modify an agreement do not alone constitute repudiation, Shelter argues that the trial court was wrong and that Vulgamott did repudiate the agreement.

A party to a contract repudiates that contract by manifesting, by words or conduct, a positive intention not to perform. Jetz Serv. Co. v. Botros,, 91 S.W.3d 157, 163 (Mo.App.2002). Shelter points to nothing in the record that would constitute an express verbal intention by Vulgamott not to perform the parties’ original agreement. Evidently, Shelter is arguing that Vulgamott’s conduct in the ensuing months after the original agreement expresses that intention. Conduct alone can constitute repudiation. Mar-Kay Plastics v. Alco Standard, Corp., 825 S.W.2d 381, 384 (Mo.App.1992). However, that conduct must manifest a positive intention not to perform. Id. We have reviewed the communications between the parties, both written and oral, and find nothing that indicates a positive intention not to perform the essential terms of the agreement originally presented to the trial court. We do not believe that disagreements as to the language used to memorialize the agreement or whether such language conformed to the intent of the parties when they reached the agreement is sufficient to find a repudiation of the parties original agreement. “A contract is the agreement ... parties [make] and not the writing which evidences the agreement.” Bailey v. Jamestown Sch. Dist. No. 11, 77 S.W.2d 1017, 1020 (Mo.App.1934).

The trial court correctly found that Vul-gamott did not expressly repudiate the agreement but incorrectly applied the law when it found that his requests to modify the memorialization of the contract left it unenforceable and invalid.

The court’s judgment is reversed and the matter remanded for the trial court to enter such orders and or judgment as is necessary to complete the settlement agreement reached by the parties on May 21, 2001.

THOMAS H. NEWTON, Presiding Judge, and HAROLD L. LOWENSTEIN, Judge, concur.

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

      . A settlement was reached with the other driver who has been dismissed from the case.

      . Reference is apparently to State ex rel. (Welch) Tracy v. Dandurand, 30 S.W.3d 831 (Mo. banc 2000).

      . Shelter intervened as a party for this purpose.

      . "The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.” Section 287.120.2.

      . Vulgamott originally filed his appeal with the Supreme Court of Missouri raising a constitutional issue. The appeal was transferred to us by the Supreme Court after briefing but before argument.

      . Most accurately, Taylor held that ordinary negligence in the operation of a motor vehicle was part of the employer's duty to provide a safe place to work and safe work appliances and was therefore not the "something extra” required by State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 180 (Mo.App. 1982) (en banc), necessary to avoid immunity for the co-employee.

      . See also State ex rel St. Louis Shipbuilding & Steel Co. v. Smith, 356 Mo. 25, 201 S.W.2d 153, 157-58 (1947), holding that where, at the time of a settlement, there was a difference of opinion about the validity of a tax assessment that the settlement could not be disturbed even though later it was found that no tax was due.

      . Neither party was a resident of the state for more than 90 days preceding the action’s commencement.

      . In fact, Vulgamott did sign one of Shelter's versions of the written settlement agreement nearly a year later but this argument by Shelter is different and that later signature does not enter into our consideration.


source: Caselaw Access Project

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

license: Public Domain

text:
    Abdul MOHEET, M.D., Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Respondent.
    No. WD 63543.
    Missouri Court of Appeals, Western District.
    Dec. 7, 2004.
    As Modified Feb. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 1, 2005.
    Application for Transfer Denied March 1, 2005.

      William L. Davis, St. Louis, MO, for appellant.
    Daniel Neal McPherson, Jefferson City, MO, for respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.
   JAMES M. SMART, JR., Judge.

Abdul Moheet, M.D., appeals the decision of the Administrative Hearing Commission in which it found cause to discipline his medical license by subjecting it to a public reprimand. We affirm the Commission’s decision.

Factual and Procedural Background

Appellant Abdul Moheet, M.D., was licensed by the State Board of Registration for the Healing Arts as a physician and surgeon in 1986. In January 2001, the Board filed a complaint with the Administrative Hearing Commission seeking a determination that Dr. Moheet’s physician license was subject to discipline. The complaint arose out of Dr. Moheet’s emergency-room treatment of a patient, referred to as “J.D.,” in January 1995.

First Emergency Room Visit

On January 20, 1995, J.D., a forty-year-old male suffering from high blood pressure, felt a sudden and severe headache while driving. Soon after he returned home, he asked his son, Jason, to call an ambulance. When the paramedics arrived, they took J.D.’s history, which included hypertension (high blood pressure), and a list of J.D.’s medications, one of which was to treat the hypertension. They noted that J.D.’s chief complaints were a headache and neck spasms. Jason notified his mother, J.D.’s wife, at her work.

Because of J.D.’s neck pain, the paramedics put a cervical collar on him and secured him to a spinal board. They took his blood pressure three times between 3:59 and 4:30 p.m. and gave him nitroglycerine to lower his blood pressure. His blood pressure was high, ranging from 200/120 to 170/130. After delivering J.D. to the emergency room, the paramedics remained there for about fifty minutes. They gave a verbal report to an unidentified nurse. It is unclear what happened to their written report at this point.

The nurse manager of the emergency department, Douglas Bouldin, R.N., was waiting to perform triage on J.D. when he arrived. Bouldin filled in an Emergency Room Record form (the “E.R. form”) with J.D.’s vital signs. J.D.’s blood pressure was 170/130 at 4:50 p.m. Bouldin also recorded J.D.’s medications. He wrote on the form, “Cervical neck pain & [headache].” Bouldin passed the E.R. form to the nurse assigned to J.D.’s room, Darlene Brooks.

J.D.’s wife gave Nurse Brooks J.D.’s medical history, which in addition to high blood pressure, included depression, alcoholism, and left arm numbness. She also told the nurse that J.D. had not been taking his blood pressure medicine. Brooks examined and questioned J.D. and wrote her findings on the E.R. form. J.D. told her that while driving, he had a “charlie horse,” causing a severe headache. He could not hold his head up without pain and could not turn his head. He also complained of pain and numbness around his left wrist and elbow. Brooks did not take J.D.’s blood pressure.

Dr. Moheet was on duty in the emergency room that day. At 5:05 p.m., Dr. Mo-heet began examining and taking a history from J.D. He observed that J.D. was lying on a backboard in a cervical collar, holding onto the side rails of the gurney, clenching his teeth, and going into spasms. When asked why he was in the emergency room, J.D. responded that he was having neck pain that radiated into the back part of his head. Dr. Moheet asked J.D. if he had hurt himself, and he said that he fell while sledding in the snow (referring to an incident the previous day when sledding with his children). He complained of numbness in the left arm. Dr. Moheet was hampered in taking J.D.’s medical history because J.D. was unhappy with the questions and repeatedly requested pain medication.

Dr. Moheet checked J.D.’s breathing, pulse, lung sounds, and abdomen. He then did a neurological check, which included checking his ability to feel sensations. J.D. had decreased sensation in the thumb, outer forearm, middle finger, and on the inner side of the left hand. To Dr. Moheet, these sensory changes suggested radiculopathy (nerve impingement due to a cervical disc problem). J.D. was given an injection for pain. Dr. Moheet sent J.D. for x-rays. Although J.D. had informed the nurse of a sudden onset of head pain, Dr. Moheet did not order a CAT scan of the head. J.D.’s reflexes were normal. When it was determined that J.D. did not have a neck fracture, the collar, cushion, and backboard were removed, and he was returned to the emergency room.

At 6:40 p.m., Dr. Moheet again examined J.D. and checked his neurological responses. At this time, J.D., who was sitting up on the gurney, told Dr. Moheet that he was feeling 50% better. Dr. Mo-heet told J.D. of his diagnosis of a C-6 radiculopathy (pinched sixth nerve) on the left side. He told J.D. that the x-ray was negative and that he was being discharged with a muscle relaxant and an anti-inflammatory painkiller. J.D.’s wife asked whether those medications would cause a problem with J.D.’s blood pressure. Dr. Moheet said they would not. Dr. Moheet did not consider this mention of blood pressure to be a reason to further examine J.D. He testified at the hearing that the primary care physician handles blood pressure maintenance and most cases do not become emergency room situations. At 7:00 p.m., J.D. was given a soft collar for his neck and released to go home.

Dr. Moheet later charted his findings for J.D. based on his notes. Dr. Moheet did not know J.D.’s blood pressure when he treated him and did not review the ambulance records or the E.R. form. Dr. Mo-heet expected his nurses to inform him of any abnormalities in the patient’s vital signs. J.D. did not inform Dr. Moheet that he had high blood pressure nor did he mention that he had stopped taking his medication.

Second Emergency Room Visit

At approximately 6:30 the next morning, J.D.’s wife found J.D. unconscious on the bedroom floor and could not revive him. An ambulance crew responded and took J.D.’s blood pressure four times between 7:16 and 7:50 a.m. The readings were extremely high: 220/120; 200/128; 210/118; and 228/108. The ambulance crew gave J.D. a drug for hypertension and took him to the hospital.

At the hospital, Dr. Michael F. Boland, a neurosurgeon, was informed by emergency room personnel that J.D. had an abnormal CAT scan, was comatose, and needed emergency neuro-surgical treatment. Dr. Boland diagnosed a spontaneous intraven-tricular hemorrhage in the fourth ventricle of his brain (a hemorrhagic stroke). The blood from the hemorrhage had clotted and blocked the flow of spinal fluid. The excess fluid in his brain built up tremendous pressure, causing him to lapse into a coma. Dr. Boland believed that J.D. had suffered the hemorrhage during the afternoon of January 20, 1995, and that he would have stopped bleeding by the time he arrived at the emergency room that previous day.

Dr. Boland told J.D.’s wife that J.D. needed an emergency procedure to avoid imminent death. His wife authorized the procedure. The procedure was performed in the emergency department due to the urgency. J.D. spent a week in neuro-intensive care, a week in a step-down area, and a week on a rehabilitation floor. At the time of the hearing, J.D. was deceased, having died the previous March. There is no evidence that the cause of his death (an intra-abdominal hemorrhage) was related to the 1995 stroke.

Hemorrhagic Stroke

According to Dr. Boland, intraventricu-lar hemorrhages of the brain are relatively rare, and most symptoms are not evident until the bleeding has been going on for a period of hours. The patient often has a headache and neck pain. The blood pressure can be elevated or remain normal. However, complaints of a headache with neck pain but without a stiff neck, nausea, and vomiting, is not a typical presentation. Unlike other types of strokes, the patient may show no neurological deficit because there is no destruction of brain tissue. According to Dr. Boland, a CAT scan on January 20th would have revealed the hemorrhage in J.D.’s brain.

Proceedings Before the Commission and the Circuit Court

In January 2001, the Board filed its complaint against Dr. Moheet. The complaint alleged, inter alia, that cause exists to discipline Dr. Moheet’s license pursuant to section 384.100.2(5), RSMo. 2000, which allows the Board to file a complaint for the following cause:

Any conduct or practice which is or might be harmful or dangerous to the mental or physical health of a patient ...; or incompetency, gross negligence or repeated negligence in the performance of the functions or duties of any profession licensed or regulated by this chapter.

After a hearing, the Commission found cause to discipline Dr. Moheet’s license based on “gross negligence” and “conduct that might have been harmful or dangerous to the physical health of a patient.” The Board thereafter issued a public reprimand to Dr. Moheet’s license.

On judicial review, the Cole County Circuit Court affirmed the Commission’s findings of facts and conclusions of law and the disciplinary order. Dr. Moheet now appeals to this court.

Standard of Review

On appeal, we review the Commission’s decision, rather than that of the trial court. State Bd. of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146, 152 (Mo. banc 2003). For purposes of review, the Commission’s action and the Board’s order are “treated as one decision.” Dorman v. State Bd. of Registration for Healing Arts, 62 S.W.3d 446, 453 (Mo.App.2001) (citing § 621.145). The decision is presumed valid, and the attacking party has the burden of overcoming that presumption. Id. This court will affirm the decision and order unless it:

(1) Is in violation of constitutional provisions;
(2) Is in excess of the statutory authority or jurisdiction of the agency;
(3) Is unsupported by competent and substantial evidence upon the whole record;
(4) Is, for any other reason, unauthorized by law;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable;
(7) Involves an abuse of discretion.

§ 536.140.2. We will not substitute our judgment for that of the Commission on factual matters, but questions of law are matters for the independent judgment of this court. McDonagh, 123 S.W.3d at 152.

Lack of Notice as to All Charges

In his first point on appeal, the Appellant alleges that the Commission’s decision violated subsections 1, 2, 4, and 5 of section 536.140.2 because the complaint failed to give adequate notice of all the charges against him. He says that it failed to allege: (1) that the Board was seeking discipline based on “any conduct or practice which is or might be harmful to the mental or physical health of a patient” and (2) that Dr. Moheet failed to obtain an adequate history of the patient, both of which the Commission found to be grounds for discipline. According to Dr. Moheet, the pleadings indicated he was being accused only of “gross negligence” and “incompetence.” He alleges he was, therefore, unprepared to defend himself on these other charges at the hearing, resulting in severe prejudice to him.

As noted, section 334.100.2(5) authorizes the Board to file a complaint for “any conduct or practice which is or might be harmful or dangerous to the ... physical health of a patient ...; or incompetency, gross negligence or repeated negligence in the performance of the functions or duties” of his profession. State regulation 1 CSR 15-3.350(2)(A) requires an agency’s complaint to set forth “[a]ny conduct that a licensee has committed that is cause for discipline, with sufficient specificity to enable the licensee to defend against the charge at hearing; and any provision of law that allows discipline for such acts.” The purpose of the complaint is to inform the licensee of the allegations with which he is charged and to provide sufficient notice to enable him to prepare an adequate defense. Duncan v. Mo. Bd. for Architects, Prof'l Eng’rs & Land Surveyors, 744 S.W.2d 524, 538-39 (Mo.App.1988). Duncan sets forth the level of pleading required:

The specificity of charges could be at essentially three levels. The most general is simply a statement that the accused has violated one or more of the statutory grounds for discipline without further elaboration, i.e., he has been grossly negligent. Such an allegation is insufficient to allow preparation of a viable defense. The second level involves a greater specificity in setting forth the course of conduct deemed to establish the statutory ground for discipline. The third level involves a degree of specificity setting forth each specific individual act or omission comprising the course of conduct. Due process requires no more than compliance with the second level.

Id. at 539. (Emphasis added.) A finding that the licensee is guilty of a charge that does not appear in the complaint cannot stand. Id.

The pertinent parts of the Board’s complaint alleged:

13. While J.D. was in the emergency room the day before the admission, licensee knew or should have known that J.D.’s blood pressure was very high.
14. Failure to ascertain a patient’s vital signs, including blood pressure, in the practice of emergency medicine is below the standard of care.
15. Licensee’s failure to assess J.D.’s blood pressure in the emergency room constitutes gross negligence.
16. Because of licensee’s failure to assess J.D.’s blood pressure in the emergency room, J.D. was deprived of timely diagnosis and treatment of the bleed, reducing the likelihood of a favorable clinical outcome.
17. While J.D. was in the emergency room the day before the admission, licensee failed to do a complete physical examination of the patient.
18. While J.D. was in the emergency room the day before the admission, licensee failed to obtain appropriate laboratory tests.
19. Licensee’s failure to adequately assess, diagnose and treat J.D. when he presented in the emergency room was below the standard of care for an emergency department physician.
20. Licensee’s conduct, as set forth herein, constitutes incompetency and gross negligence in the practice of medicine.
21. Cause exists to discipline Respondent’s license pursuant to § 334.100.2(5), RSMo. Supp.1998, which provides, in pertinent part:
2. The board may cause a complaint to be filed with the administrative hearing commission ... against any holder of any ... license required by this chapter ... for any one or any combination of the following causes:
(5) Any conduct or practice which is or might be harmful or dangerous to the mental or physical health of a patient or the public; or incompetency, gross negligence or repeated negligence in the performance of the functions or duties of any profession licensed or regulated by this chapter. For the purposes of this subdivision, “repeated negligence” means the failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar* circumstances by [a] member of the ... profession^]

In finding cause to discipline, the Commission stated:

We find cause to discipline Moheet’s license under section 334.100.2(5) for gross negligence and conduct that might have been harmful or dangerous to the 'physical health of a patient, in that he diagnosed, treated and discharged J.D. without knowing an important vital sign, his blood pressure, and for failing to obtain an adequate patient history. (Emphasis added.)

The Commission found Dr. Moheet “grossly negligent” because he “assessed, treated and discharged J.D. without knowing his blood pressure” and because he “did not actively seek out the information about the blood pressure and medical history which might have led him to the correct diagnosis.”

Dr. Moheet presented his objections about the complaint in his written argument to the Commission. The Commission rejected the argument. It held that the complaint was sufficient to meet the Duncan standard with regard to the factual allegations. The Commission also held that the complaint gave Dr. Moheet notice that negligence was going to be an issue by stating that his conduct “was below the standard of care for an emergency department physician.” The Commission noted that the Board could have provided more specific notice of discipline for conduct that is harmful or dangerous to the patient. However, the Commission concluded that “the recitation of the statute, in combination with the reference in [Paragraph] 16 stating the J.D. ‘was deprived of timely diagnosis and treatment of the bleed, reducing the likelihood of a favorable outcome,’ provided Dr. Moheet with sufficient notice that he might be subject to discipline for conduct that was harmful to a patient.”

1. Conduct which is or might be harmful to a patient.

Dr. Moheet contends that the allegation of “conduct or practice which is or might be harmful or dangerous to the ... physical health of a patient” was never pleaded, and, contrary to the Commission’s findings, was not reasonably inferable from the complaint. He claims ■ he was denied due process because he had no notice that he should be prepared to refute that allegation. Dr. Moheet says this lack of notice denied him the chance to adequately cross-examine the Board’s expert or to prepare his own expert to testify with regard to this allegation.

The Commission based its ruling in this matter primarily on Paragraphs 16 and 21. Paragraph 21 sets out in full the provisions of section 334.100.2(5), including the language allowing discipline for “conduct or practice which is or might be harmful or dangerous to the mental or physical health of a patient or the public.” The Commission found that “the recitation of the statute, in combination with the reference in [Paragraph] 16 stating that J.D. ‘was deprived of timely diagnosis and treatment of the bleed, reducing the likelihood of a favorable outcome,’ ” provided sufficient notice that Dr. Moheet might be subject to discipline for conduct that was harmful to a patient.

Although a bare recitation of the statute, without factual support, is insufficient to satisfy due process, see Mo. Dental Board v. Cohen, 867 S.W.2d 295, 296-97 (Mo.App.1993), here there was factual support for the allegation of harmful or dangerous conduct. The complaint stated that Dr. Moheet diagnosed and treated J.D. for neck pain, when in fact J.D. suffered an intra-cranial hemorrhage. The complaint also states that J.D. presented in the emergency room with an elevated blood pressure; that Dr. Moheet never ascertained J.D.’s vital signs, including his blood pressure; and that Dr. Moheet’s failure to ascertain the blood pressure fell below the standard of care. Paragraph 16 states, “Because of Licensee’s failure to assess J.D.’s blood pressure in the emergency room, J.D. was deprived of timely diagnosis and treatment of the bleed, reducing the likelihood of a favorable outcome.”

Dr. Moheet states that the unpleaded allegation of “conduct that might have been harmful” refers to conduct that is “lesser in kind or degree than even ordinary negligence” and is a “broader ground of misconduct” than the gross negligence with which he was charged. He argues that he was, therefore, unprepared to defend against it. We disagree. Dr. Moheet had notice that he was subject to discipline for failure to properly and timely assess, diagnose, and treat the intra-cranial bleeding, with the result that the patient suffered a reduction in the likelihood of a favorable outcome. The conduct “was encompassed in the allegations in the complaint.” Duncan, 744 S.W.2d at 539. Thus, the pleadings conform to both the Duncan standard and the State regulation.

Dr. Moheet’s own pleading also showed that he knew what he was defending against. Dr. Moheet pleaded as an affirmative defense to the petition, and argued at trial, that any harm J.D. may have suffered was the result of J.D.’s own conduct for failing to give a “full, accurate and complete history” of his medical condition. Thus, Dr. Moheet was fully aware of the link between the failure to obtain an adequate medical history and the possibility of harm to the patient. He was well aware that he would need to defend against the notion that his failure to properly assess the patient’s condition was detrimental to the welfare of the patient and created a danger for the patient.

The Commission did not err in finding that Dr. Moheet’s license should be subject to discipline on this ground. The ground was sufficiently pleaded, and Dr. Moheet had adequate notice of the charges against him. Point denied.

2. Failure to obtain an adequate patient history.

Second, Dr. Moheet contends that the Commission erred in basing its decision on a finding of failure to obtain an adequate patient history because that was not pleaded. He says the complaint alleged only that the Commission should find cause to discipline for incompetence and gross negligence for failing to (1) ascertain or obtain J.D.’s blood pressure, (2) do a complete physical examination, (3) obtain appropriate laboratory tests, and (4) adequately assess, diagnose, and treat J.D.

The Commission found that “[t]he failure to ascertain and assess information about a patient in order to adequately prepare a patient history ... falls below the standard of care for an emergency room doctor” and “constitutes gross negligence and conduct that would be likely to cause harm to a patient.” The Commission finding of a failure to ascertain and assess information about the patient would seem to be encompassed in the complaint’s assertion that he failed to “adequately assess, diagnose, and treat J.D.”

Here the Commission’s finding was not only “fully supported by the evidence,” but it also was “contained in the complaint.” Cf. Duncan, 744 S.W.2d at 539 (finding, although supported by the evidence, could not stand where it was not pleaded, even by inference). Here, the allegations of failure to ascertain the vital signs and failure to assess the patient’s condition were not only supported by the evidence, but were pleaded in the complaint in plain terms. The complaint alleged that “[a]t the time J.D. presented in the emergency room, he had a history of hypertension.” It further alleged that Dr. Moheet failed to “adequately assess, diagnose, and treat J.D.” The ordinary understanding of the words “ascertain” and “assess” would denote obtaining and evaluating the facts pertinent to the patient, including, of course, patient history. Thus, this allegation, too, was encompassed in the complaint. See id.

Dr. Moheet had sufficient notice of the allegation that he improperly failed to obtain an adequate patient history on J.D., and the Commission did not err in finding that the complaint was sufficient to meet the standards set forth in Duncan. Point denied.

Insufficient Evidence to Support “Harmful or Dangerous Conduct” Finding

In his second point, Dr. Moheet argues that there was no competent and substantial evidence to support the Commission’s finding of conduct that might have been harmful or dangerous to the patient. Dr. Moheet contends that the testimony the Commission relied on for that determination — that of the Board’s expert witness, Dr. David Tarlow — cannot constitute competent evidence, because it was wholly unsupported by any facts in evidence.

A trial court has broad discretion regarding the admission of evidence, including expert testimony. Rigali v. Kensington Place Homeowners’ Ass’n, 103 S.W.3d 839, 844 (Mo.App.2003). Expert testimony in a contested case administrative proceeding, such as this one, is governed by section 490.065. McDonagh, 123 S.W.3d at 155. That statute provides in part:

3. The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.

§ 490.065.3. The facts on which an expert’s opinion is based must have a substantial basis in established facts. Heisler v. Jetco Serv., 849 S.W.2d 91, 95 (Mo.App.1993). The opinion cannot rest on mere conjecture, speculation, or assumption of facts. Rigali, 103 S.W.3d at 845.

Dr. Moheet focuses on Dr. Tarlow’s response to the question of whether there are conditions that can be diagnosed based on changes in the patients’ vital signs alone. The doctor answered in the affirmative, and painted several scenarios where this could occur. The Commission overruled Dr. Moheet’s objection to this testimony at trial, stating that because Dr. Tarlow was an expert, he was subject to “different parameters ... when it comes to hypothetieals” like this one. We disagree with Moheet’s objections and we also disagree that this testimony was hypothetical. The testimony was being offered merely to illustrate an earlier point he had made that was specific to J.D.’s case. Dr. Tarlow first testified about the importance of obtaining a blood pressure reading for a patient with J.D.’s symptoms:

Q. What was the importance of the blood pressure in an accurate diagnosis of this patient?
A. Well, the blood pressure — a person with very high blood pressure and a headache has to conjure up a catastrophic medical condition of a blood — of bleeding in the head. The bleeding in the head then causes what’s called intra-cranial hypertension and causes the headache.

He then was asked for examples of medical conditions that present with only changes in a patient’s vital signs. The list of situations provided by Dr. Tarlow was intended to emphasize his previous statement and to support his opinion that physicians have a duty of care to know their patients’ vital signs. He testified:

[V]ital signs are vital. That’s why they call them vital signs ... and the standard of care would dictate that not only would you need to know the actual vital signs, the actual numbers, but you’d need to know them in trends, how they were before, maybe when they came in initially and maybe when they’re being discharged two hours later.

Dr. Tarlow elaborated on the significance of vital signs:

Q. Can a physician do a thorough physical exam without obtaining the vital signs of a patient?
A. Absolutely not.
Q. Was it important when the patient [J.D.] presented in the emergency room on the 20th of January 1995 for Dr. Moheet to have done a thorough physical exam, including vital signs?
A. It was required, yes.

Dr. Tarlow’s testimony, taken as a whole, constituted competent and substantial evidence to support the decision. The Commission also relied upon testimony from Dr. Moheet’s own expert, noting that “Mo-heet’s own witness stressed the importance of the blood pressure numbers.” The Commission cited the following quote from Dr. Christopher Brooks:

Q: And do you typically when you’re treating patients, do you typically want to find out what the vital signs of the patient are?
A: Yes, I do.
Q: If those vital signs are not provided to you in terms of documentation or not readily available to you within some documents that may be in the emergency department, would you take them yourself?
A: Not usually. I would actively seek them out [sic] and if they’re not available have a nurse or one of the medical students or residents working with me, make sure that the vital signs get taken.

An expert is allowed to give opinions based on facts and data reasonably relied upon by experts in the field. McDonagh, 123 S.W.3d at 156 (citing § 490.065.3). Here, Dr. Tarlow’s opinions were based on his education and experience as a physician who is board certified in emergency medicine, and his testimony was based upon facts in evidence. The Commission did not err in relying on his testimony. That evidence, combined with the other evidence in the record, was sufficient to support the Commission’s finding of conduct that might be harmful to a patient. Point denied.

Insufficient Evidence to Support “Gross Negligence”

Finally, Dr. Moheet argues that the Commission erred in its finding of “gross negligence” because there was no competent and substantial evidence to support a finding of causation. Dr. Moheet claims there was no credible evidence that his actions actually caused any injury or damage. He contends that such a finding is a necessary element of gross negligence under the statute.

Dr. Moheet cites Judge Wolffs separate opinion in McDonagh, 123 S.W.3d at 164 (Wolff, J., concurring in part and dissenting in part), for the proposition that there can be no discipline in the absence of proof of actual harm caused to the patient by the alleged failure of the licensee. Dr. Moheet concludes from Judge Wolffs opinion that there is an absolute causation requirement for “gross negligence” under section 334.100.2(5) similar to the causation requirement in civil medical negligence actions. We disagree.

First, we think that Dr. Moheet misconstrues Judge Wolffs opinion in McDonagh. Dr. Moheet implies that Judge Wolffs opinion means there must be “credible evidence that [the doctor’s] actions [actually] caused ... injury or damage” in order to find “gross negligence.” Dr. Moheet omits Judge Wolffs statement that in his mind, “the real question” was “whether acts of negligence ... can be cause for discipline if there is no showing that the physician’s conduct ‘is or might be harmful or dangerous.’ ” Id. In that case, Judge Wolff was asserting that there was no showing of any potential for harm from the prescribing of chelation therapy for vascular disease. Id. at 164-65. Even if the majority in McDonagh had agreed with Judge Wolff, and it did not, the facts of that case would be distinguishable because here there was no real doubt that Dr. Moheet’s alleged gross negligence carried risk of substantial damage.

License discipline cases are not intended to punish physicians for the results of their negligence, but are intended to protect the public. Duncan, 744 S.W.2d at 531. The theory of Section 334.100.2(5) is that the public is best protected by ensuring that physicians seek to protect against professional failure that might result in harm to patients.

It is unnecessary to address Dr. Mo-heet’s specific arguments under this point about lack of causation. There is ample evidence in the record to support a finding of “gross negligence.” The Commission, therefore, did not err in finding that Dr. Moheet’s license was subject to discipline on that ground. Point denied.

Conclusion

For the foregoing reasons, the judgment of the Commission is affirmed.

ELLIS and HARDWICK, JJ., concur.

      . All statutory references are to Revised Statutes of Missouri, 2000, unless otherwise noted.

      . Dr. Moheet did not object on this exact basis at trial. There, he objected (1) that the testimony “seem[ed] to expand the pleadings because there’s no allegation here that that kind of scenario took place[,]” and (2) on the basis of ''relevance” and because it was "unresponsive” and "constituted a variety of volunteered information points.”

      . The alleged negligent act in that case was the repeated prescribing of chelation therapy for vascular disease where such treatment was not approved by the FDA for that purpose. McDonagh, 123 S.W.3d at 150-51.


author: PHILLIP R. GARRISON, Judge.

text:
    Sharon S. McBRIDE, Plaintiff-Appellant, v. Joseph W. FARLEY, M.D., and Emergency Physicians of Springfield, Inc., Defendants-Respondents.
    No. 25448.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 15, 2004.
    Application for Transfer Denied Jan. 3, 2005.
    Application for Transfer Denied March 1, 2005.

      David W. Ansley, Benjamin A. Stringer, Hall, Ansley, Rodgers & Condry, P.C., Springfield, MO, for Appellant.
    Brian D. Malkmus, S. Jacob Sappington, Blackwell Sanders Peper Martin LLP, Springfield, MO, for Respondent.
   PHILLIP R. GARRISON, Judge.

This is an appeal by Sharon S. McBride (“Plaintiff’) from a judgment entered on a jury verdict in favor of Joseph W. Farley, M.D. (“Dr. Farley”) and Emergency Physicians of Springfield, Inc. (“Emergency Physicians”) (collectively “Defendants”) in her suit based on medical negligence. We reverse and remand for a new trial.

Plaintiff originally filed suit against Dr. Farley, Emergency Physicians and Lester E. Cox Medical Centers (“Cox”), but eventually settled her claim against Cox and dismissed it from the suit. The case went to trial in January 2001, but a mistrial was declared due to issues injected during voir dire. It was again tried in October 2001, but resulted in a hung jury and another mistrial was declared. The retrial of this case (the “last trial”) covered a period of twelve days and resulted in the verdict for Dr. Farley and Emergency Physicians from which this appeal flows.

The determinative issue in this case is presented by the first of Plaintiffs two points on appeal. In that point she contends that the trial court erred in failing to grant her motion for new trial “because a court official engaged in misconduct by making statements outside of the courtroom proceedings to jurors that this case had been previously tried and resulted in a hung jury and that this trial was the second or third attempt at a jury trial[.]”

Prior to the commencement of the last trial, Plaintiff filed a motion in limine requesting that the trial court preclude any mention of previous litigation or mistrials because it would inject prejudicial issues that were not relevant to the case. That motion was sustained by agreement of counsel. Following a nine to three jury verdict in favor of Defendants, Plaintiff filed a motion for new trial alleging that there had been misconduct by the jury coordinator in that he had told various jurors outside the courtroom that the case had previously been tried and resulted in a hung jury and that this was the second or third trial of the case. In support, Plaintiff filed affidavits from three of the jurors who served in this case.

Gary G. Lindley (“Juror 1”) said in his affidavit that he was told by the jury coordinator on either the first or second day of trial that there had been at least one previous trial of the case that ended in a hung jury. He also said that the previous trial was again discussed in his presence two days before the jury began its deliberations.

Richard W. Long’s (“Juror 2”) affidavit stated that he was told by Juror 1 two days before the case was submitted to the jury that there had previously been a hung jury in the case, and that this was the second or third attempt to try the case. He also said that this information was discussed among the jurors.

Lana Sue Johnson (“Juror 3”) said in her affidavit that in the days prior to the deliberations, the jurors discussed the fact that there had previously been a hung jury in the case and that this was the second or third trial of the matter. She also said that another juror gave her and several other jurors this information five days before the case was submitted to the jury.

When Plaintiffs motion for new trial was heard by the trial court, Plaintiff presented the above affidavits and called Juror 1 and Juror 2. Defendants objected to the affidavits and the jurors’ testimony, claiming that it was impermissible to introduce evidence to impeach the jury’s verdict. The trial court took the objection under advisement and allowed the testimony, and Jurors 1 and 2 each confirmed the contents of their affidavits. Juror 1 also testified that the jury coordinator made the statements about the previous hung jury at least twice, with the first being either on the day the jury was selected or the next trial day; that the statements were made in the presence of other people (presumably jurors); and that everyone on the jury panel knew about the previous hung jury.

Juror 2 testified that the prior hung jury was discussed when the jury would assemble during recesses; that there was an ongoing discussion about the fact of the prior hung jury; that a “few guys” on the jury discussed it, including a juror named Baker (“Juror Baker”); that Juror Baker discussed it in such a fashion that it was derogatory or critical of the Plaintiffs case; and that the discussions caused Juror 2 to question the manner in which he was evaluating the evidence, and to be more critical of the evidence. Juror Baker joined in the verdict for Defendants, but Jurors 1, 2 and 3 did not. This appeal followed the denial of the motion for new trial by the trial court.

A motion for a new trial based on the jury’s acquisition of extraneous evidence is left to the sound discretion of the trial court. Travis v. Stone, 66 S.W.3d 1, 3 (Mo. banc 2002). The denial of a new trial may be reversed by the appellate court if it appears that the trial court abused its discretion in ruling on the issue of extraneous evidence or the issue of prejudice. Id. The same standard applies when the alleged misconduct is by a court official as opposed to one of the jurors. Rovak v. Schwartz, 339 S.W.2d 756, 758 (Mo.1960).

The general rule in Missouri is that a juror’s testimony or affidavit may not be used to impeach the verdict as to misconduct inside or outside the jury room, whether before or after the jury is discharged. Stotts v. Meyer, 822 S.W.2d 887, 888-889 (Mo.App. E.D.1991). This is known as the “Mansfield rule.” Id. at 889. The Supreme Court of Missouri has interpreted that “rule” as meaning that no one is competent to impeach a verdict by the making of an affidavit as to “matters inherent in the verdict.” Baumle v. Smith, 420 S.W.2d 341, 348 (Mo.1967). Examples of “matters inherent in the verdict,” given by the Baumle court, are:

that the juror did not understand the law as contained in the court’s instructions, or that he did not join in the verdict, or that he voted a certain way due to a misconception of the evidence, or misunderstood the statements of a witness, or was mistaken in his calculations, or other matters ‘resting alone in the juror’s breast.’ A juror who has reached his conclusions on the basis of evidence presented for his consideration may not have his mental processes and innermost thoughts put on a slide for examination under the judicial microscope.

Id. (internal citations omitted). See also Williams v. Daus, 114 S.W.3d 351, 369 (Mo.App. S.D.2003) (the fact that jurors acted on improper motives, reasoning, beliefs or mental operations are matters inherent in the verdict), and Williams Carver Co. v. Poos Bros., Inc., 778 S.W.2d 684, 688 (Mo.App. W.D.1989) (“matters inherent in the verdict are not assailable by affidavit of anyone for the purpose of impeaching the verdict”).

Extrinsic evidentiary facts, however, are distinguishable from matters inherent in the verdict and are not prohibited under the general rule against impeaching verdicts. Neighbors v. Wolfson, 926 S.W.2d 35, 37 (Mo.App. E.D.1996). Thus, the court in Neighbors explained that to permit a verdict to be attacked on the ground of juror misconduct, the “juror testimony must allege that extrinsic evidentiary facts (i.e., facts bearing on trial issues but not properly introduced at trial) were interjected into the jury’s deliberations, rather than merely that jurors acted on improper motives, reasoning, beliefs or mental operations (the latter type of juror testimony is said to concern ‘matters inherent in the verdict’).” Id.

In Williams, we acknowledged that a party may attack a verdict on the ground that juror misconduct occurred outside the courtroom, such as when a juror gathers evidence extraneous to the trial. 114 S.W.3d at 365. We explained, citing Neighbors, that extrinsic evidentiary facts enter a jury’s deliberations when, for example, a juror visits an accident scene without the court’s authorization and then shares his observations with his fellow jurors. Id.

In Travis v. Stone, 66 S.W.3d 1, 4 (Mo. banc 2002), the Supreme Court of Missouri further explained the rule by saying:

However, it is permissible to elicit testimony about juror misconduct that occurred outside the jury room, such as the alleged gathering of extrinsic evidence at issue here. Even where the purpose of testimony regarding the misconduct (whether it occurred inside or outside the jury room) is to impeach the verdict, the party complaining of the testimony must make a timely and proper objection or else the issue is waived,

(internal citations omitted). We interpret this explanation as being consistent with Baumle and meaning that the determining factor is not whether the misconduct occurred inside or outside the jury room but whether the purpose of the testimony is to “impeach the verdict.” In applying the rule, the Travis court found that the trial court abused its discretion in denying a motion for new trial because a juror visited the accident scene in question. Id. at 6.

In Stotts v. Meyer, 822 S.W.2d 887, 888 (Mo.App. E.D.1991), cited with approval in Travis, the appellant complained of the trial court’s denial of his motion for new trial based on a juror’s visit to the scene of the accident that was the subject of that case. The eastern district of this court reversed in an opinion that explained much of the law in this area. Id. at 892. It first reiterated that Missouri courts follow the “Mansfield rule” in that a juror’s testimony or affidavit may not be used to impeach the verdict as to misconduct inside or outside the jury room whether before or after the jury is discharged. Id. at 888-89. The Stotts court, in considering whether the conduct in question had the improper effect of impeaching the verdict, explained that the juror’s conduct did not come within the purview of matters “inherent in the verdict,” citing Baumle, and that the juror’s testimony concerning his visit to the scene was competent and admissible since it did not extend to the “subjective reasoning behind the jury verdict.” Id. at 890.

In Rovak, a juror, in the presence of the other jurors, made a comment to the female court reporter that he would like to be a juror in a case where she was a party. 339 S.W.2d at 758. The court reporter responded, in the presence of all the jurors, that “I wouldn’t sue anybody.” Id. There the trial court concluded that the statement was merely “banter,” did not result in prejudice, and denied a mistrial. Id. In affirming that denial, the appellate court found nothing to indicate, among other things, that the exchange had an evil effect on the proceedings, or that the remark related to, or was considered by any juror to be directed at, the case on trial. Id. at 758-59. We find this case to be distinguishable from the instant case, however, because the jury coordinator’s conduct goes well beyond mere banter and was directed to this case.

Defendants contend that the “extraneous evidence exception” does not apply here because Plaintiff does not allege that a juror actively gathered information extraneous to the trial or that the jury coordinator made statements introducing facts bearing on trial issues. We disagree. While the information in the instant case did not come to the jurors through the misconduct of any of their number, but rather from a court official, the same analysis should apply. Since the prohibition is against the receipt of extrinsic evidentiary facts (facts bearing on trial issues but not properly introduced at trial), it should not matter whether the source of the information is from outside the jury, such as from a court official, or from other jurors.

As to whether the information furnished to this jury constituted facts bearing on trial issues, it is significant that Plaintiff had the burden of proving her claim against Defendants. Defendants’ counsel, in his opening statement, informed the jury that Plaintiff had the burden of proof, and must convince them that Defendants “did something wrong and that it caused ... [Plaintiff] to be injured.” Although it is not a part of this record, we assume that the trial court gave MAI 3.01 which is required to be given in every case. That instruction tells the jury that the burden is upon the party who relies upon propositions of fact submitted to them to cause them “to believe that such proposition is more likely to be true than not true.” MAI 3.01 (2002). It concludes, “[i]f the evidence in the case does not cause you to believe a particular proposition submitted, then you cannot return a verdict requiring belief of that proposition.” Id. In closing argument, Defendants’ counsel reiterated that the burden of proof was on Plaintiff and that she could not meet that burden in this case. In short, the jury was clearly informed that Plaintiff had the burden of proof and that her failure to meet that burden must result in a verdict for Defendants.

The information provided to the jurors by the jury coordinator dealt with a trial issue, i.e., whether Plaintiff could prove Defendants’ liability for her claimed damages. The fact that there had been an earlier trial resulting in a hung jury effectively communicated to this jury that Plaintiff had been unable to convince at least nine of those jurors that she had met her burden of proof and was entitled to a verdict. This information, in the present context, goes beyond matters inherent in this jury’s verdict and involves facts bearing on trial issues that were not properly introduced at trial. The information involved here was obtained by the jurors outside the courtroom and is the equivalent of obtaining evidence extraneous to the trial. There is no contention that the information conveyed by the jury coordinator would have been relevant in the trial of this case. Certainly, it would not have been.

Plaintiff cites State v. Franks, 702 S.W.2d 853 (Mo.App. E.D.1985), involving a factual situation very similar to the instant case. There, a juror reported that a deputy sheriff had told four other jurors that the case had been tried twice before and ended in a hung jury each time. Id. at 856. The four jurors had expressed immediate concerns about the possibility of reaching a verdict, and the infoi'mation was passed along to all of the other jurors. Id. A juror informed the trial court about the information they had learned after the jury had been impaneled and sworn. Id. The trial court granted a mistrial, telling the jury that “the information they had received may make it impossible to be fair and impartial and may confuse the jurors to an extent that would affect their judgment.” Id. The issue arose in Franks, however, in connection with the defendant’s claim that the trial court erred in granting the mistrial, and that the improper grant of that relief should bar a new trial on the basis of double jeopardy. Id.

Plaintiff argues that Franks is particularly significant even though it was a criminal case. In Franks, the court of appeals noted that a defendant is “not placed twice in jeopardy where a mistrial is declared, even over his objection, if there exists grounds of manifest necessity or the ends of public justice would otherwise be defeated.” Id. at 856 (emphasis added). The Franks court also cited Parker v. U.S., 507 F.2d 587 (8th Cir.1974), for the proposition that “[wjhere prejudicial information has reached the jurors there is manifest necessity which will justify aborting the trial.” 702 S.W.2d at 856 (emphasis added).

The concept of “manifest necessity” was further discussed in State v. Tiger, 972 S.W.2d 385, 389 (Mo.App. W.D.1998), which, like Franks, involved the effect of a mistrial in a criminal case when the defendant claimed a subsequent trial would subject him to double jeopardy. The appellate court held that without a criminal defendant’s consent to a mistrial, the mistrial bars retrial unless the court felt that there was a “manifest necessity” for a mistrial. Id. In explaining “manifest necessity” the court said, “if continuing with the trial would inevitably result in a reversal on appeal and remand for a new trial, then there is no point to allowing the process to continue; manifest necessity requires a mistrial to avoid the farce of continuing the trial in the face of a certain reversal.” Id. at 392. Consequently, Plaintiff argues here that Franks stands for the fact that a factual scenario like that in the instant case creates a “manifest necessity” for relief. We agree. The fact that the information in question did not become known until after the trial, rather than at the beginning as in Franks, does not diminish its seriousness as it relates to the fairness of the trial.

Defendants argue here that Plaintiff did not meet her burden to prove that prejudice resulted from the statements attributed to the jury coordinator. They cite Williams, 114 S.W.3d at 366, for the proposition that in a motion for new trial based upon allegations of juror misconduct, the burden normally is upon the contesting party to show the misconduct and that it was prejudicial. Defendants candidly acknowledge that Williams, quoting Travis, holds that “[o]nce it is established that a juror has gathered evidence extraneous to the trial, prejudice will ordinarily be presumed, and the burden is on the respondent in such a case to overcome the presumption of prejudice.” Id, In so holding, Travis relied on Middleton v. Kansas City Pub. Serv. Co., 348 Mo. 107, 152 S.W.2d 154, 158-60 (1941), which in turn held that once it is established that a juror has gathered evidence extraneous to the trial, prejudice will ordinarily be presumed, and the burden is on the other party to overcome the presumption of prejudice. 66 S.W.3d at 4. In Travis, the Supreme Court reversed and remanded for a new trial even though the juror said she did not discuss her visit to the accident scene with other jurors, and it played no part in the jury deliberations. Id. at 6. It found that the presumption of prejudice was so strong that it was not overcome by the juror’s statements tending to minimize the effect of her conduct, especially considering the materiality of the evidence concerning a critical issue in the case. Id. This was in keeping with the Court’s statement that “[t]he appellate court may reverse the lower court’s denial of a new trial if it appears that the trial court abused its discretion in ruling on the issue of extraneous evidence or the issue of prejudice.” Id. at 3.

As indicated above, the ultimate issues in this case were whether Defendants were negligent in their care and treatment of Plaintiff, and whether she suffered damage as a result. The information provided by the jury coordinator reflected on those ultimate issues by indicating that, in light of the fact that Plaintiff had the burden of proof, Plaintiff had been unable to persuade at least nine of the jurors in the earlier trial that she had met that burden. This was an extrinsic evidentiary fact (one bearing on trial issues) that was not properly introduced at trial, and did not concern matters inherent in the verdict. That being the case, there was a presumption of prejudice and the burden shifted to Defendants to overcome that presumption. Id. at 3. They did nothing to do so, and do not claim that they did.

Defendants also argue that “[ujpon hearing [Plaintiffs] inadmissible, contradictory and ambiguous evidence at the hearing on [Plaintiffs] Motion for New Trial, [the trial judge] was free to determine that the jury coordinator did not make any statements regarding the procedural history of the case, or that any such statements did not prejudice [Plaintiff].” This is in keeping with Defendants’ contention, relying on Williams, that we should indulge every reasonable inference in favor of the trial court’s ruling, and that matters such as the weight of the evidence, credibility of the witnesses and resolution of conflicts of the testimony are not subject to our review. 114 S.W.3d at 369. We do not agree with Defendants’ attempt to apply those principles here.

The trial court merely entered an order stating that the “motion for new trial is overruled” without indicating whether the ruling was based on credibility determinations or an application of the law. Some of the evidence concerning the statements complained of was in the form of affidavits that were uncontradicted. With reference to that evidence, deference to the trial court’s assessment of credibility does not apply, and we will make our own independent evaluation of the trial court’s application of the law. Burns v. Plaza West Associates, 979 S.W.2d 540, 546 (Mo.App. W.D.1998). Additionally, any such deference to the trial court does not apply where there is no factual dispute and the contentions presented are questions of law. Howard v. Missouri State Bd. of Edu., 913 S.W.2d 887, 888-89, (Mo.App. S.D.1995). Here, the evidence about the statements made by the jury coordinator to the jurors was unequivocal and uncontradicted. Such a record would not support a finding that the statements were not made. See Reinert v. Director of Revenue, 894 S.W.2d 162, 164 (Mo. banc 1995); and Hollars v. Church of God of Apostolic Faith, 596 S.W.2d 73, 74 (Mo.App. S.D.1980).

“Where the trial court has refused to grant a new trial on account of alleged misconduct, the revision of the appellate court will be exercised more freely than where a new trial has been granted.” Fitzpatrick v. St. Louis-San Francisco Ry. Co., 327 S.W.2d 801, 808 (Mo.1959). Accordingly, we hold that the testimony and affidavits of the jurors relating to the statements of the jury coordinator constituted evidence that extraneous evidence was presented to the jury, that such evidence created a presumption of prejudice that was not overcome, that the trial court abused its discretion in denying Plaintiffs motion for new trial on the basis of that conduct, and that, therefore, the case must be reversed and remanded for a new trial.

Plaintiff also presents a second point on this appeal relating to the admission of expert testimony. She argues that an expert was allowed to testify, over her objection, to opinions that did not meet the requirements of Frye v. United States, 293 F. 1013 (D.C.Cir.1923) or Section 490.065(3), RSMo (2000), in that the opinions were neither shown to have wide scientific approval nor to be based on the kind of facts or data reasonably relied on by experts in the field. We need not review this allegation of error.

The decision to admit expert testimony is a matter of trial court discretion. McGuire v. Seltsam, 138 S.W.3d 718, 721 (Mo. banc 2004). We have no way of discerning what evidence will be presented on this issue, or in what manner, on retrial. Likewise, it would be speculation to assume that the same witness would testify on retrial and give the same type of testimony with the same foundation. Additionally, a decision on this contention could be considered dicta since we have already determined that a reversal and new trial must occur. To attempt to review the point presented would, in essence, be an advisory opinion which, absent rare exceptions concerning matters of public interest likely to recur, appellate courts do not render. Trimble v. Pracna, 51 S.W.3d 481, 503 (Mo.App. S.D.2001).

It should be noted, however, that since the briefs were filed in this case, the Supreme Court of Missouri decided State Bd. of Reg. for Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. banc 2003). That opinion may be of guidance to the trial court and counsel as it relates to the admissibility of expert opinion testimony on retrial.

The judgment in this case is reversed and the case remanded for a new trial.

BARNEY, P.J„ and PREWITT, J., concur.

      . The objection to the affidavits was written and filed with the trial court, but a copy of that objection is not in the record before us. We gather from the colloquy with the trial court, however, that the basis of the objection was the prohibition against impeaching the verdict.

      . There is no indication in the record before us that the trial court ever ruled on that objection.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Phillip APPLEBERRY, Appellant.
    No. WD 62914.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 1, 2005.
    Application for Transfer Denied March 1, 2005.

      Kent Denzel, Columbia, for Appellant.
    Deborah Daniels, Jefferson City, for Respondent.
    Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. Phillip Appleberry appeals from his conviction, following a jury trial, for first-degree tampering. He contends that the trial court should have granted him a new trial based upon allegations of juror misconduct. For the reasons set forth in the memorandum provided to the parties, we affirm. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Luther W. JOHNSON, Appellant.
    No. WD 61922.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 1, 2005.
    Application for Transfer Denied March 1, 2005.
    Ruth Sanders, Appellate Defender, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.
   Order

PER CURIAM.

Luther Johnson appeals his convictions of second-degree murder and armed criminal action. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 30.25(b).