author: CHARLES B. BLACKMAR, Senior Judge.

text:
    STATE of Missouri, Respondent, v. Regina SMITH, Appellant.
    No. ED 76707.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 17, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 29, 2000.
    Rosalynn Koch, Asst. Public Defender, Columbia, for appellant.
    Robert P. McCulloch, Pros. Atty., Karen Ann Murphy, Asst. Pros. Atty., Clayton, for respondent.
   CHARLES B. BLACKMAR, Senior Judge.

Regina Smith (the defendant) was employed as a youth specialist at Missouri Hills, a rehabilitation center for juvenile offenders. A jury found her guilty of first degree sexual misconduct, a Class A misdemeanor, under an instruction requiring the jury to find that the defendant “touched the genitals of [K.T.], ... for the purpose of gratifying her own sexual desire.” The jury found her not guilty on another charge of first degree sexual misconduct allegedly committed against K.T. and on two other charges of the same offense involving other individuals. She appeals, asserting two points of error, one challenging the exclusion of certain testimony by K.T. and the other contesting the wording of the verdict directing instructions. We affirm.

The defendant’s first point is easily disposed of. While cross-examining the victim, K.T., defendant’s counsel asked him whether he had told “the staff” that he had a sexually transmitted disease. The state’s objection was sustained, and defense counsel then asked whether he had ever told anybody that he had. such a disease. Objection was likewise sustained. The defendant claims that the court erred in sustaining these objections because, had the defendant known that K.T. had such a disease, it would be unlikely that she would have touched his genitals or attempted to masturbate him. The showing, counsel asserts, would affect his credibility-

A trial court has wide latitude to limit cross-examination due to “concerns about prejudice, confusion of the issues, and interrogation that is only marginally relevant.” State v. Langston, 889 S.W.2d 98, 98 (Mo.App.1994).

We find the trial court did not abuse its broad discretion in sustaining the objections. The questions did not inquire as to the defendant’s knowledge of any disease that the victim was suffering from, and there is absolutely no evidence that she had any such knowledge. She took the stand but her counsel did not ask her whether she knew anything about KT.’s having a sexually transmitted disease. Unless she had such knowledge, there is no foundation for counsel’s suggested argument.

In her second point the defendant asserts plain error in the verdict directing instruction on Count II, which reads as follows:

As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
First, that between August 1, 1997 and August 22, 1997, in the County of St. Louis, State of Missouri, the defendant touched the genitals of [K.T.], and
Second, that she did so for the purpose of gratifying her own sexual desire, and
Third, that the defendant did so without the consent of [K.T.], and then you will find the defendant guilty under Count II of sexual misconduct in the first degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
If you do find the defendant guilty under Count II of sexual misconduct in the first degree, you will assess and declare one of the following punishments:
1. Imprisonment in the county jail for a term fixed by you, but not to exceed one year.
2. Imprisonment in the county jail for a term fixed by you, but not to exceed one year and in addition a fine, the amount to be determined by the Court.
3. No imprisonment but a fine, in an amount to be determined by the Court.
The maximum fine which the Court may impose is $1,000.

The instruction on Count III, on which the jury found the defendant not guilty, was absolutely identical, except for the reference to the different count. The defendant argues that these instructions constitute “plain error,” because there is no assurance that all jurors found the defendant guilty of the same incident of sexual misconduct. The evidence revealed that, while the two incidents involving K.T. occurred at the same address, they occurred on separate dates in different places, one in KT.’s bunk bed at the cottage and one next to the dayroom of the cottage.

The defendant’s problem at this point is that there was no objection to either instruction at the instruction conference preceding argument and submission. Rule 28.03 provides in pertinent part as follows:

Counsel shall make specific objections to instructions or verdict forms considered erroneous. No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection-The objections must also be raised in the motion for new trial in accordance with Rule 29.11.

The defendant likewise made no complaint about these instructions in her motion for new trial. It is appropriate to observe that, under Rule 28.03, the inclusion of an objection in a motion for new trial avails the defendant nothing if the required objections have not been made before the jury retires. Their inclusion in the motion for new trial is an additional requirement, and compliance is especially necessary when a defendant asserts plain error.

Rule 28.03 serves the salutary purpose of preventing sandbagging, by requiring counsel to present objections to instructions at a time when the trial court is able to make corrections shown to be appropriate. No longer may counsel stand by silently, and then, if the verdict is adverse, seek a new trial because of alleged error in instructions which has not been asserted earlier. State v. Martindale, 945 S.W.2d 669, 673 (Mo.App. E.D.1997). Counsel are obliged to study tendered instructions carefully and the court should allow reasonable time to study the submissions. It is logical to assume that, if counsel familiar with the case cannot perceive infirmities in instructions, then the chance that the jury would be affected by them is minimal.

We have no hesitation in saying that the prosecution should have made it clear that the two instructions applied to different incidents. This could have been accomplished simply by including more detail as to the location of each offense. But the instructions are legally correct and, if the point had been timely raised, the court would have undoubtedly complied with a request for clarification. We consider the appellant’s suggestion that some jurors might have had one touching in mind when voting for guilt on Count II, while other jurors found a different touching, highly unlikely. What is much more probable is that the jurors discussed each incident separately and found guilt on the only touching all of them agreed to. The parties have cited cases involving similar infirmities, but we do not consider them in detail because of the defendant’s failure to comply with Rule 28.03. The defendant, having failed in this respect, does not persuade us that there is plain error requiring us to excuse her failure to comply with the governing rule. State v. Ferguson, 20 S.W.3d 485, 498 (Mo. banc 2000), petition for certiorari pending.

The judgment is affirmed.

HOFF, C.J., and CRANE, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James O’DONNELL, Plaintiff/Appellant, v. BI-STATE ROOF SYSTEMS, INC., Defendant/Respondent.
    No. ED 77696.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 17, 2000.
    Rehearing Denied Nov. 29, 2000.
    James C. Ochs, St. Louis, for appellant.
    James E. Whaley, Law Office of Brown & James, P.C., St. Louis, for respondent.
    Before LAWRENCE E. MOONEY, P.J., PAUL J. SIMON and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

James O’Donnell (Appellant) appeals the trial court’s grant of Bi State Roof Systems, Inc.’s (Respondent) Motion for Summary Judgment based on a release with Hycel Properties Company (Hycel) signed by Appellant, and its denial of Appellant’s Motion for Reconsideration.

We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Keith BAIN, Appellant.
    No. ED 77330.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 24, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2000.
    S. Paige Canfield, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before ROBERT G. DOWD, Jr., P.J., MARY RHODES RUSSELL and RICHARD B. TEITELMAN, JJ.
   ORDER

PER CURIAM.

Keith Bain (Defendant) appeals from his convictions for second degree burglary, section 569.170, RSMo 1994, possession of a controlled substance, section 195.202, RSMo 1994, and possession of drug paraphernalia, section 195.233, RSMo 1994. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the parties’ exclusive use setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).


text:
    Robert Lee PROUD, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 77356.
    Missouri Court of Appeals, Eastern District. Division One.
    Oct. 24, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2000.
    Rosalynn Koch, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

      Before ROBERT G. DOWD, P.J., and MARY RHODES RUSSELL and RICHARD B. TEITELMAN, JJ.
   ORDER

PER CURIAM.

Robert Lee Proud (Movant) appeals the judgment denying his Rule 24.035 motion for post-conviction relief. Movant pleaded guilty to first-degree murder in violation of Section 565.020.1, RSMo 1994. Movant now contends his plea counsel coerced his guilty plea. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not clearly erroneous. Rule 24.035(k). An extended opinion would have no prece-dential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


author: LAURA DENVIR STITH, Judge.

text:
    Sharon CALAROSA, Appellant, v. Judy A. STOWELL, John Calarosa, Respondents.
    No. WD 57577.
    Missouri Court of Appeals, Western District.
    Nov. 14, 2000.

      Timothy Allen Toth, Independence, for appellant.
    Ronald Scott Smith, Kansas City, for respondent Judy Stowell.
    Keith Wayne Ferguson, Kansas City, for respondent John Calarosa.
    Before Presiding Judge SMART, Judge ELLIS and Judge LAURA DENVIR STITH.
   LAURA DENVIR STITH, Judge.

This appeal arises from an action concerning an automobile accident. Plaintiff-Appellant Sharon Calarosa was a passenger in an automobile owned by her but driven by her husband, John Calarosa. Ms. Calarosa’s vehicle was struck from behind by a vehicle operated by Respondent Judy Stowell. Ms. Calarosa sued Ms. Stowell for negligence in the Circuit Court of Jackson County, Missouri, the Honorable C. William Kramer presiding, and Ms. Stowell impleaded Mr. Calarosa as a third-party defendant. Mr. Calarosa was ultimately dismissed by the court below at the close of Ms. Stowell’s evidence. After trial, and in accordance with the jury’s verdict, the court entered a judgment of $50,000 in favor of Ms. Calarosa.

Although Ms. Calarosa filed neither a motion for new trial nor motion for judgment notwithstanding the verdict, she now appeals, arguing that the trial court erred: (1) in allowing Ms. Stowell to implead John Calarosa as a third-party defendant, and in denying Mr. Calarosa’s motions for directed verdict and summary judgment; (2) in denying Ms. Calarosa’s motions in limine seeking leave to inform the jury of the procedural reason why her husband, John Calarosa, was present as a defendant at trial, and to further explain to the jury why counsel for Mr. Calarosa might attempt during cross-examination to mitigate Ms. Calarosa’s injuries; (3) in allowing counsel for Mr. Calarosa to cross-examine her expert witness concerning the scope and extent of her injuries; (4) in failing to sua sponte grant a directed verdict after opening statements on the ground that allegedly prejudicial statements about mitigation of her damages were made by counsel for Ms. Stowell in his opening statement; (5) in failing to sua sponte grant a new trial because Ms. Calarosa’s trial counsel allegedly disregarded her wishes by praying for damages in excess of $30,000,000 in closing argument; and (6) in failing to sua sponte grant additur. Finding no reversible error in any of the respects alleged, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-Appellant Sharon Calarosa was riding in a car driven by her husband, John Calarosa, when the car was rear-ended by the car driven by Defendant-Respondent Judy Stowell on Highway 40 between its intersections with 10th Street and with Highway 7 in Blue Springs, Missouri on March 12, 1997. Ms. Calarosa sued Ms. Stowell for injuries to her back and neck, including a herniated disc which ultimately required surgery, and for loss of consortium. Mr. Calarosa sued for his own injuries and for loss of consortium. Ms. Stowell filed an Answer and affirmative defenses in which she alleged that Mr. and Mrs. Calarosa were partially at fault for the accident.

Over the ensuing year and one half, discovery took place. Numerous trial dates were set and continued. Trial was then set for February 16, 1999. Five days before trial, on February 11, 1999, Ms. Calarosa dismissed her loss of consortium claim and Mr. Calarosa dismissed all of his claims against Ms. Stowell, and trial was continued so that medical documents could be exchanged and due to illness on the part of counsel.

The following month, the Calarosas’ counsel withdrew. Ms. Stowell filed a third-party petition against Mr. Calarosa, alleging that, if she was liable to Ms. Cala-rosa, then Mr. Calarosa was at fault and liable for all or part of the injuries suffered by his wife due to his negligence in driving their vehicle. Mr. Calarosa hired new counsel, denied liability, and filed a motion for summary judgment on the third-party claim. That motion was denied and trial began on July 12, 1999. Before trial began, Ms. Calarosa filed a motion in limine seeking leave of court to tell the jury the reason why her husband was in the case as a third-party defendant and to explain that, since he was made a defendant, he had no choice but to try to mitigate Ms. Calarosa’s damages so as to lower the potential value of his contribution obligation should he be found partially at fault. The court denied the motion.

During opening statement, counsel for the third-party defendant, Mr. Calarosa, mentioned facts which plaintiff now alleges had the effect of mitigating her damages. As plaintiff does not inform us in her appellate brief what those allegedly damaging statements were, nor point us to any part of the transcript where these statements were made, we do not know which statements she alleged had this effect. Neither at that point, nor at any other point in the record which is identified by counsel, did plaintiff attempt to raise the issue again in the context of the trial, nor does she anywhere make an offer of proof nor otherwise inform us as to exactly what the jury would have been told if this argument had been permitted.

Following opening statements, third-party defendant Mr. Calarosa moved for a directed verdict on the third-party claim against him. Plaintiff, his wife, opposed the motion, on the basis that, while the evidence of Mr. Calarosa’s fault was extremely weak, it was probably sufficient to withstand a directed verdict in light of defendant’s claim that there would be evidence at trial of a sudden stop by Mr. Calarosa. The court overruled the motion for directed verdict. At trial, the parties presented evidence concerning the accident. According to plaintiff, the court permitted counsel for Mr. Calarosa to cross-examine plaintiff about her damages and this prejudiced her by mitigating her damages. Unfortunately, again, plaintiff does not, either in her statement of facts or in her argument, identify exactly what part of the cross-examination she alleges was improper or unduly prejudicial.

In regard to the defendant’s third-party claim, the record shows that Ms. Stowell testified at trial that Mr. Calarosa’s brake fights were not on when she was behind him; that cars were proceeding; that she then looked in the rear-view mirror for just a second, and as soon as she looked forward again she saw that his brake fights were on; she put her brakes on immediately, but could not stop in time to avoiding hitting his car. At the close of defendant’s evidence, third-party defendant again moved for a directed verdict, arguing that Ms. Stowell’s testimony was insufficient to make out a case of negligence against Mr. Calarosa based on a sudden stop. The court agreed and directed a verdict for the third-party defendant. The case continued only against defendant Stowell. The ruling dismissing the third-party defendant is not appealed.

In closing argument, counsel for plaintiff argued that the evidence showed plaintiffs remaining fife expectancy to be 30 to 40 years, and that the jury should award damages of $1,000,000 per year for the balance of plaintiffs life. Defense counsel argued that damages should be no more than $25,000. The jury awarded plaintiff $50,000. Plaintiff failed to file a motion for new trial or a motion for JNOV, but approximately six months after the trial, on January 18, 2000, plaintiff sent a note to the court raising a number of complaints about her trial counsel, including that she had told her counsel not to argue for so much money, but that counsel did it anyway over her objection. Plaintiff also appealed to this court.

II. STANDARD OF REVIEW

Rule 78.07(a)(1) provides that “[I]n jury tried cases, other than cases tried with an advisory jury, allegations of error to be preserved for appellate review must be included in a motion for new trial-” Thus, “[t]he failure to file a motion for new trial preserves nothing for appellate review.” Messick v. Atchison, Topeka & Santa Fe Railway Co., 924 S.W.2d 620, 621 (Mo.App. W.D.1996). Hence, because Ms. Calarosa failed to file a motion for new trial — thereby failing to give the trial court the opportunity to correct any alleged errors — she has preserved no trial errors for appellate review. We are thus constrained to review Ms. Calaro-sa’s allegations of trial error only for plain error, which, under Rule 84.13(c), “may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.”

We find, in so reviewing, that Ms. Cala-rosa has categorically failed to make the requisite showing to trigger plain error review, and, indeed, that even had the allegations been properly preserved, Ms. Calarosa would have been unsuccessful here.

III. RAISING ERRORS AFFECTING A CO-DEFENDANT

In her first point on appeal, Ms. Calaro-sa alleges that the trial court erred: 1) in allowing Defendant Judy Stowell to im-plead John Calarosa as a Third-Party Defendant; 2) in denying Mr. Calarosa’s Motion for Summary Judgment as to Ms. Stowell’s impleader claim against him; and 3) in denying Mr. Calarosa’s Motion for Directed Verdict as to the impleader claim against John Calarosa at the end of Ms. Stowell’s opening statement.

Ms. Calarosa argues that she qualifies as an “aggrieved party” with respect to the trial court’s refusal, on these three occasions, to dismiss Defendant Judy Stowell’s Third Party Complaint against John Cala-rosa, because Mr. Calarosa’s presence as a third-party defendant tended to confuse the jury and hinder her ability to advance a “clear and understandable claim” against Ms. Stowell. We disagree.

The statute governing the right of a party to appeal states in relevant part:

Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction from ... any final judgment in the case ...

Sec. 512.020 RSMo 1994. By its very language, Section 512.020 requires that “a party be ‘aggrieved’ by the judgment below to have any right to appeal.” Orn-eases indicate, generally, that “a party is ‘aggrieved’ when the judgment below operates prejudicially and directly on his personal or property rights or interests and such effect is immediate and not merely a possible remote consequence.” Harris v. Union Electric Co., 685 S.W.2d 607, 611 (Mo.App. E.D.1985); Horace Mann Ins. Co. v. Riley, 716 S.W.2d 820, 822 (Mo.App. W.D.1986). We reiterated in Manager of Division of Finance of Jackson County v. Parcels of Land Encumbered with Delinquent Tax Liens, 947 S.W.2d 90 (Mo.App. W.D.1997), that in order to be sufficiently “aggrieved” to appeal a judgment, the consequences of the judgment to the appellant must be “immediate ... and not [merely a] possibility of ... remote repercussions.” Id. at 93.

We applied this rule in Bond v. California Compensation and Fire Co., 963 S.W.2d 692 (Mo.App. W.D.1998). The Bonds owned a building which was insured by Cal-Comp Insurance Co. in the amount of $200,000. After the building was destroyed by fire, Mr. Bond inspected the premises and reported his claim to Cal-Comp, who instructed Mr. Bond to contact his choice of contractors from a list provided by Cal-Comp, to bid on the removal of fire debris from the destroyed property. Id. at 694-95. Mr. Bond chose Industrial Salvage, and Industrial later commenced to clear the property of debris. In clearing the debris, Industrial used a “trac-type” bulldozer, causing substantial damage to the floor of the premises. After the removal of the debris, Cal-Comp paid Mr. Bond $200,000 as required by the policy, and $10,036 to cover the cost of the debris removal, which Mr. Bond paid to Industrial. Id.

The Bonds subsequently sued Cal-Comp, alleging that Cal-Comp negligently caused damage to the floor of the premises, in that Industrial, acting as agent for Cal-Comp, used a trac-type bulldozer rather than one with tires. Cal-Comp im-pleaded Industrial as a third-party defendant in the action, and the case proceeded to trial. Bond, 963 S.W.2d at 695. At the close of the Bonds’ evidence, Cal-Comp and Industrial moved for directed verdicts. The trial court granted Cal-Comp’s motion for directed verdict, and because Cal-Comp’s third-party claim against Industrial was necessarily predicated on the success of Bond’s claim against Cal-Comp, the court also granted Industrial’s motion for directed verdict. Id. On appeal, the Bonds alleged that the trial court erred in granting a directed verdict, not only as to their claim against Cal-Comp, but also as to Cal-Comp’s claim against Industrial. Id. at 696.

This Court reasoned, in applying the principles mentioned above underlying the requirement that a party be “aggrieved”:

Here, even though Cal-Comp’s third-party claim against Industrial Salvage was contingent upon the success of the appellants’ claim against Cal-Comp, logically and legally the appellants were only aggrieved as to the directed verdict granted as to their claim against Cal-Comp and not as to the directed verdict in favor of Industrial Salvage. Thus, the appellants have no standing on appeal to challenge the directed verdict in favor of Industrial Salvage on Cal-Comp’s claim against it.

Bond, 963 S.W.2d at 696.

In the case at bar, Ms. Calarosa appeals the trial court’s orders, as did the appellants in Bond, concerning a third-party petition against a party — John Cala-rosa — whom she did not herself name as a defendant in her suit. Further, she alleges only secondary or even tertiary effects of the trial court’s refusal to dismiss the third-party petition as the foundation for her “grievance.” The primary effects, however, of the trial court’s orders refusing to dismiss the third-party petition were clearly upon Mr. Calarosa, the third-party defendant. While Ms. Calarosa points to a number of remote repercussions flowing from the trial court’s rulings — i.e., Mr. Ca-larosa’s presence as a third-party defendant being a source of confusion for the jury, and his apparently effective cross-examination of her expert’s testimony as to her injuries — none of these consequences seem to represent the direct and substantial effects on her interests contemplated under Sec. 512.020 to be deemed a “grievance.” The court’s rulings may have changed the landscape of the trial, but they did not directly affect her right to relief. The reasoning of Bond is controlling here, and Ms. Calarosa has no statutory right to appeal these rulings.

Even were Ms. Calarosa to have standing to raise these' issues, however, she would not be entitled to relief. Thus, while Ms. Calarosa’s Point Relied On contends that the trial court erred in granting Ms. Stowell leave to file her third-party petition, she concedes in the argument portion of her brief that the trial court did not abuse its discretion in rendering this decision. Ms. Calarosa’s concession at the outset of her argument necessarily defeats this claim.

Similarly, while Ms. Calarosa claims that the trial court erred in denying John Calarosa’s motion for summary judgment on the third-party claim, “it is well-settled that the denial of a motion for summary judgment is not subject to appellate review ... even when an appeal is taken from a final judgment and not from the denial of a motion for summary judgment.” Kabir v. Missouri Dept. of Social Services, 845 S.W.2d 102, 103 (Mo.App. W.D.1993) (internal citations omitted). Therefore, the trial court’s order, in this respect, is not appealable by any party.

Finally, Ms. Calarosa waived her claim that the court below erred in denying Mr. Calarosa’s motion for directed verdict at the close of Ms. Stowell’s opening statement, for, while she mentions this error in her Point Relied On, she does not argue it in the argument portion of her brief. See Coleman v. Gilyard, 969 S.W.2d 271, 273 (Mo.App. W.D.1998) (holding that arguments raised in a Point Relied On which are not supported in the argument portion of the brief are deemed abandoned and preserve nothing for appellate review). For all of the foregoing reasons, this Point is denied.

TV. DENIAL OF MOTIONS IN LI-MINE

In her second point on appeal, Ms. Calarosa alleges that the trial court erred in denying her pretrial motions in limine requesting leave of court to discuss with the jury the procedural reason for Mr. Calarosa’s impleader as a third-party defendant, and to comment to the jury on the reason that Mr. Calarosa’s counsel might attempt to mitigate her damages so as to lessen his own potential liability. She argued that, by denying these motions, the court permitted the jury to hear “an opening statement by [the] third-party defendant that mitigated [her] damage[s],” and further was allowed to hear questions from third-party defendant John Calarosa’s counsel that “tended to discredit [Ms. Ca-larosa] and minimize the damages she claimed.”

This point was not preserved below, for it is well-settled that “a pretrial ruling on a motion in limine is interlocutory in nature and is not an appealable order.” Jordan v. Abernathy, 845 S.W.2d 86, 88 (Mo.App. E.D.1993); Rhodes v. Blair, 919 S.W.2d 561, 563 (Mo.App. S.D.1996). Ms. Calaro-sa thus appeals from an order which is not subject to appellate review. She never attempted to renew this motion at trial, so as to give the court a chance to consider it in the context of the evidence. She has faded to preserve the issue for review. Rhodes, 919 S.W.2d at 563.

V. MITIGATION OF DAMAGES

In her third point, Ms. Calarosa claims that it was error for the trial court to allow counsel for third-party defendant John Calarosa to cross-examine her expert witness concerning the extent of the injuries she suffered in the accident, in that this allowed “a party who should not have been in the trial to further mitigate the plaintiffs damages when the right to do so was derivative and preserved by the defendant/third-party plaintiffs ability to defend against plaintiffs claim for damages.” Essentially, she argues that, because she elected to sue only Ms. Stowell as a defendant, only Ms. Stowell was affected by her damage claim. Thus—by Ms. Calarosa’s reasoning—only Ms. Stowell could cross-examine Ms. Calarosa’s expert witness concerning the scope of her injuries, since the only issue affecting the third-party defendant John Calarosa was the percentage of fault ultimately attributed to him. The law, however, does not support this argument, and indeed, dictates a contrary conclusion.

To illustrate, in Ferrellgas, L.P. v. Williamson, 24 S.W.3d 171 (Mo.App. W.D. 2000), we reaffirmed the proposition that a party sued for contribution by the defendant in an underlying action has a right to litigate both liability and the amount of damages. Id. at 178. Indeed, a party charged with contribution in a tort case— whether they be impleaded in the original action by the defendant, or later sued for contribution—has “the right to perform discovery, and to present evidence to refute [the plaintiffs] charges ... [and] they are entitled to a full opportunity to defend against the ... allegations of their fault and the amount of damages which the injured party suffered.” Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727, 732 (Mo. banc 1982) (emphasis added). Thus, Ms. Calarosa’s argument that third-party defendant John Calarosa had no right to cross-examine her expert witness concerning the scope of her injuries is simply wrong, and the trial court did not abuse its discretion in permitting counsel for Mr. Calarosa to do so.

Further, even were the trial court to have erred in permitting Ms. Stowell’s counsel to cross-examine Mr. Calarosa, where, as here, this error is not preserved, this would not require reversal unless it caused manifest injustice. See Messick, 924 S.W.2d at 621. Here, while Ms. Cala-rosa conclusorily states that Ms. Stowell’s cross-examination caused her prejudice, she neither cites to nor quotes any portion of the transcript in support of this conclu-sory statement. We therefore do not know what aspects of the cross-examination she believes prejudiced her, or why she claims they did so. It is an appellant’s duty to provide record citations in support of his or her arguments. Coleman, 969 S.W.2d at 274. It is not the court’s obligation to search the record for error. Id. Such a failure to supply a factual and legal basis to support claims of error preserves nothing for review. Point denied.

VI.OPENING STATEMENT

Ms. Calarosa further argues that it was error for the court below to fail, on its own motion, to grant her a new trial because of alleged deficiencies in third-party plaintiff Judy Stowell’s opening statement. More specifically, she claims that Ms. Stowell’s opening statement made factual allegations that she was ultimately unable to prove at trial, and that, because of these untenable statements, Ms. Calarosa was prejudiced by comments in Ms. Stowell’s opening statement that tended to mitigate the extent of Ms. Calarosa’s injuries.

Although she again does not argue so explicitly, Ms. Calarosa is in effect saying that, because an error occurred in opening statements — in that it was prejudicial to allow Ms. Stowell’s counsel to argue fault on the part of Mr. Calarosa — a mistrial was warranted at that time due to prejudice flowing from those statements. She affirmatively waived this claim, however, when her counsel argued to the trial judge that he should overrule the motion for directed verdict at the end of opening statements because a minimally submissi-ble case against Mr. Calarosa had been stated. “[A] party cannot complain on appeal of alleged error which his own conduct creates,” and more to the point, “[a] party cannot lead the court into error and then employ that error as a source of complaint.” Reed v. Rope, 817 S.W.2d 503, 509 (Mo.App. W.D.1991); Johnson v. Moore, 931 S.W.2d 191, 195 (Mo.App. E.D. 1996) (a party cannot complain on appeal of any alleged error which by his or her own conduct at trial he or she joined in or to which he or she acquiesced). Ms. Cala-rosa cannot, therefore, convict the court of an error she led the court into committing, by acquiescing in, and even encouraging, the court’s rejection of Mr. Calarosa’s motion for directed verdict.

By so ruling, we do not mean to suggest that the asserted error, if preserved, would have had merit. Ms. Cala-rosa asks us to speculate that Ms. Stb-well’s counsel affirmatively misled the jury as to what the evidence would be at trial, based on the fact that at trial Ms. Stowell’s testimony was not sufficient to avoid a directed verdict. She offers nothing to show that counsel knew during opening statement that Ms. Stowell would equivocate as she did at trial. Counsel’s comments in his opening statement were accurate based on Ms. Stowell’s deposition testimony. This argument is not well-taken. Point denied.

VII. DAMAGES ARGUMENT

In her fifth allegation of error, Ms. Calarosa argues that she was entitled to a new trial because her trial counsel did not follow her directions during closing argument. Ms. Calarosa’s counsel, in discussing damages during closing argument, asked the jury to consider awarding $1,000,000 per year for the balance of Ms. Calarosa’s life. Evidence showed that Ms. Calarosa could expect to live another 30-40 years, so her counsel impliedly asked the jury to assess damages in excess of 30 million dollars. Ms. Calarosa now argues that this argument was contrary to her wishes, in that it only “made her appear greedy” to the jurors, and prejudiced her so much that a new trial is required.

Ms. Calarosa cites to us no authority for her claim that her counsel’s failure to follow her directions as to how to conduct closing argument in a civil trial provides a basis for granting a new trial, and we know of none. Even if counsel did not follow her wishes as to the amount of damages for which to pray during closing argument, and even were this an issue as to which counsel should have followed her wishes, and even if counsel’s strategy was not an effective one, it is an issue best handled between counsel and the client. Neither defense counsel nor the judge caused this alleged error, and it provides no basis for a new trial. Point denied.

VIII. ADDITUR

Finally, Ms. Calarosa claims that the court below erred in failing to grant addi-tur or a new trial because the jury did not award a fair and reasonable amount to compensate plaintiff for her injuries. In support, she does not cite any event during trial that could have caused the low award, nor does she prove actual out-of-pocket expenses greater than the damage award. She argues only that she had medical expenses of $22,000 and would have permanent injury due to the disk injury, that she had a life expectancy of 34 years, and that the judge refused to let her get up and stretch in the courtroom for fear this would distract the jury. She speculates that the fact she periodically had to leave the courtroom to stretch, due to her disk injury, may have led the jury to believe that she did not care about her case. However, she did not raise as error on appeal the court’s decision not to let her stand and stretch at counsel table, nor does she offer any basis but speculation to believe this ruling affected the verdict.

In any event, additur is not based on a finding that an improper ruling unduly prejudiced the jury. A new trial is the only remedy where such prejudice occurred. Additur is proper only where the trial court believes that the jury made an honest mistake as to damages. Massman Construction Company v. Missouri Highway and Transportation Com’n, 914 S.W.2d 801, 803 (Mo. banc 1996). For this reason, under Section 587.068, a court can grant additur only if it finds the verdict was less than fair and reasonable compensation, and an appellate court will reverse a denial of additur only if it finds that the verdict is so inadequate that it “shocks the court’s conscience and convinces the court that both the jury and the trial judge abused their discretion.” Morgan Publications, Inc. v. Squire Publishers, Inc., 26 S.W.3d 164 (Mo.App, W.D.2000). Here, Ms. Calarosa does not even offer us a figure to which the verdict should be increased — she just says the verdict was insufficient. Given the questions defendant and third-party defendant raised about the extent of Ms. Calorosa’s damages, it would be difficult to say that the $50,000 verdict shocks the conscience.

There is an even more basic reason why we cannot reverse the judgment of the court below on this issue — Ms. Ca-lurosa did not request additur at the trial court level. She admits that she has thus not preserved this issue for review, but argues we should review for plain error. Plaintiff cites us to no authority for the proposition that a trial court can abuse its discretion in failing to grant additur without a request. The rule allowing additur, Rule 78.02, states: “It is a matter of the trial court’s discretion whether a new trial should be granted on the grounds of a verdict’s inadequacy, and the trial court will only be reversed for abuse of discretion.” Massman indicates that a trial judge could grant additur on its own motion within 30 days of the verdict, if in its discretion, it believed that the amount of damages was not supported by the evidence, for a trial court has the discretion to grant a new trial based on the weight of the evidence. Id. Here, however, plaintiff requests us to find plain error in failing to grant additur sua sponte, the converse situation. There is no precedent for finding error in this situation. We decline to do so here.

Finally, while plaintiff’s Point Relied On conclusorily states that the court erred in failing to grant her a new trial, she did not in fact request one below, and she does not argue that a new trial was required in the argument portion of her brief on appeal. An argument that is merely stated in the Point Relied On and not developed in the argument is not preserved for review. Krame v. Waller, 849 S.W.2d 236, 239 (Mo.App. E.D.1993); Hall v. Hall, 804 S.W.2d 411, 415 (Mo.App. W.D.1991). Thus, her argument that we should find the trial court erred in failing to grant a new trial is denied.

For all of the reasons stated above, the judgment is affirmed.

Presiding Judge SMART, and Judge ELLIS concur.


author: JOHN E. PARRISH, Presiding Judge.

text:
    David Lee ROBINSON, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. 23480.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 20, 2000.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for appellant.
    John M. Albright, Moore & Walsh, Poplar Bluff, for respondent.
   JOHN E. PARRISH, Presiding Judge.

This is an appeal by the Director of Revenue (the director) of a judgment denying the director’s claim that an earlier judgment was void. The earlier judgment directs the Department of Revenue to remove from the driving record and driving license of David Robinson (petitioner) any reference to an administrative suspension that resulted from an arrest during which petitioner was determined to have driven an automobile when he had an excessive blood alcohol content. See § 302.505. The challenged judgment directed that “said administrative suspension shall be stricken and held void.” This court reverses and remands with directions.

Petitioner is a Tennessee resident. He was arrested in Butler County, Missouri, May 15, 1998, for driving while intoxicated (DWI). See § 577.010, RSMo 1994. He was administered a breath test that showed he had blood alcohol content of .177%. On June 10, 1999, petitioner filed the action that produced this appeal in the Circuit Court of Butler County. He asserted that following his DWI arrest, the Missouri Department of Revenue assigned him a Missouri driver’s license number and entered an alcohol suspension effective May 81, 1998; that as a result he would not be allowed to renew his Tennessee license without complying with various special requirements. Petitioner claimed Tennessee would require him to comply “with a SATOP program, SR-22 and insurance” in order to renew his license.

The legal file component of the record on appeal shows petitioner’s case was set for trial August 11, 1999, in the Associate Circuit Judge Division of the Circuit Court of Butler County. The trial court’s docket sheet reflects the case was called on that date and “ [stipulation filed.” It shows judgment entered that date.

The legal file includes a copy of a stipulation signed by the prosecuting attorney of Butler County and by petitioner’s attorney. It consists of an introductory paragraph and three numbered paragraphs:

Come now the parties, by and through their attorneys, and hereby stipulate that the matters, things and allegations contained in the Petitioner’s Petition are true in that,
1. The Petitioner was never afforded a right to contest the BA test.
2. That the Petitioner is a resident of the State of Tennessee and has completed all requirements imposed by the Court attendant to his plea of guilty to the charge of driving while intoxicated.
3. It is further stipulated that law enforcement officers failed to follow the proper procedures as outlined by the statutes and the Missouri Health Department Rules and as such, that the Petitioner’s results of the breathalyzer were inaccurate and unreliable.

The judgment recites, “[B]y Stipulation the Court finds the matters, things and allegations contained in Petitioner’s Petition are true.” It directs the Department of Revenue to remove “any reference to an administrative suspension as a result of a blood alcohol level” from petitioner’s driving record and driver’s license and directs and declares the administrative suspension “stricken and held void.”

On December 8, 1999, the director filed a motion to set aside the August 11, 1999, judgment. The motion was filed pursuant to Rule 74.06. The trial court entered judgment February 20, 2000, denying the motion.

The director presents one point relied on. It asserts the trial court erred in setting aside the director’s suspension of petitioner’s driving privileges because “1) [petitioner] failed to exhaust his administrative remedies by not timely seeking administrative review of the suspension or, alternatively, 2) [petitioner’s] petition fails to allege the date he did receive notice of the suspension and [petitioner] did not otherwise offer any evidence to prove that he timely filed the petition after he did receive notice of the suspension; or, finally, 3) [petitioner’s] petition, if filed under the authority of § 302.311, RSMo 1994, was filed in the wrong venue.”

The point relied on alleges error in granting the August 11, 1999, judgment. This appeal, however, is an appeal of the February 20, 2000, judgment that denied the director’s motion to set aside the earlier judgment. The argument portion of the director’s brief makes clear that the point relied on is intended to challenge the February judgment. This court will consider the point relied on in that light.

Administrative Remedy-Suspension per § 302.505

The first part of the director’s allegation of trial court error asserts that petitioner failed to exhaust his administrative remedies by not timely seeking administrative review of the suspension of his Missouri driving privileges. The director asserts the trial court did not have jurisdiction to grant relief because of this failing.

The basis for the suspension of petitioner’s Missouri driving privileges was § 302.505. It requires the Department of Revenue to suspend or revoke the license of any person arrested on probable cause to believe he or she was driving a motor vehicle while the alcohol concentration in the person’s blood, breath or urine was ten-hundredths of one percent or more by weight. That determination is made on the basis of a report filed by the arresting officer pursuant to § 302.510. Missouri driving privileges afforded nonresidents are subject to suspension on the same basis as those of Missouri residents. § 302.150, RSMo 1994.

Section 302.525.1, RSMo 1994, provides that the license suspension is effective 15 days after the person receives notice of the suspension as provided in § 302.520, RSMo 1994, or is deemed to have received notice by mail as provided in § 302.515, RSMo 1994. Section 302.520.1 states that an arresting officer is to serve notice on the arrested person, on behalf of the Department of Revenue, that the person’s Missouri driving privileges are suspended. The notice is required to be in a form that permits the arrested person to sign the original of the form as evidence of its receipt. § 302.520.2. The notice is to contain a detachable form that may be used by the person arrested to request a hearing. Id. “Signing the hearing request form and mailing such request to the department shall constitute a formal application for a hearing.” Id. A copy of the completed notice is required to be submitted by the arresting officer to the Department of Revenue. § 302.520.3.

Section 302.515, RSMo 1994, applies to situations in which the department determines an arrested person’s Missouri driving privileges are to be suspended or revoked pursuant to § 302.505, but where the notice of suspension or revocation required by § 302.520 was not given by the arresting officer. In those instances “the department shall issue a notice of suspension or revocation.” § 302.515.1, RSMo 1994. The notice is to be mailed to the last known address of the person arrested as shown by the department’s records. § 302.515.2, RSMo 1994. It is deemed to have been received by the arrested person three days after mailing unless returned by postal authorities. Id. A notice sent pursuant to § 302.515.1, RSMo 1994, must “clearly specify the reason and statutory grounds for the suspension or revocation, the effective date of the suspension or revocation, the right of the person to request a hearing, the procedure for requesting a hearing, and the date by which that request for a hearing must be made.” § 302.515.3, RSMo 1994.

The director relies on Marquart v. Director of Revenue, 896 S.W.2d 716 (Mo.App.1995), for the proposition that the trial court lacked jurisdiction to grant the relief petitioner sought because petitioner had not exhausted administrative procedures prescribed by § 302.530. Marquait explains:

Generally, before a party can seek a court’s jurisdiction, he or she must have exhausted all available administrative remedies. Marsala v. Director of Revenue, 793 S.W.2d 492, 495 (Mo.App. E.D.1990). RSMo §§ 302.500-.540 provides an orderly procedure for review of license suspension cases, wherein an administrative hearing is conducted by the Department of Revenue prior to a trial de novo in circuit court. Jenkins v. Director of Revenue, 858 S.W.2d 257, 260 (Mo.App. W.D.1993). The Western District has stated:
Under this statutory scheme, an administrative hearing must have been requested and held by an agency with the authority to do so and an adverse decision issued before a petition for trial de novo can be granted.
Id. Failure to timely request an administrative hearing deprives the trial court of subject matter jurisdiction over the petition for review and renders any action taken by the court null and void. Darr v. Directed of Revenue, 877 S.W.2d 697, 699 (Mo.App. E.D.1994).

Id. at 717.

The right to request administrative review is granted “[a]ny person who has received a notice of suspension or revocation.” § 302.530.1. The record on appeal does not establish that petitioner received notice of a suspension of his Missouri driving privileges. If no notice was given, there was no suspension. Under those circumstances, no administrative remedy existed. The director’s claim that the trial court’s action was erroneous because petitioner did not exhaust administrative remedies is denied.

The second (and alternative) part of the director’s allegation of trial court error argues the trial court’s failure to set aside the August 11, 1999, judgment was erroneous because petitioner did not allege the date he received notice of suspension or otherwise offer evidence to prove the timely filing of a petition for review. This court finds no merit in that claim.

Venue

The director’s third assertion is that if this case were not filed as a challenge to an administrative suspension pursuant to § 302.535, it was not filed in a proper county; that, therefore, the Circuit Court of Butler County had no jurisdiction to render judgment. The director premises this argument on petitioner’s claim that the Butler County action was commenced under § 302.311, RSMo 1994, being “a general statute that addresses the procedures for appealing the suspension or revocation of a driver’s license.” Gehrs v. Director of Revenue, 965 S.W.2d 360, 362 (Mo.App.1998).

Petitioner’s argument that § 302.311, RSMo 1994, was applicable is based on Gehrs. Petitioner argues that Gehrs permits him to seek judicial review of the director’s actions in suspending his Missouri driving privileges without resorting to the administrative review requirements of § 302.530 because the director did not notify him of the suspension. The fallacy in petitioner’s argument lies in the difference in the facts of this case and the facts in Gehrs. The cases present different issues.

In Gehrs, unlike this case, the record revealed that the arresting officer notified the driver that his license would be suspended. This occurred the date of the driver’s arrest as prescribed by § 302.520. Mr. Gehrs, the driver, requested an administrative hearing. The hearing was held and a decision rendered adverse to Mr. Gehrs. Mr. Gehrs did not file a request for trial de novo within the time prescribed by § 302.530.7. He contended the Department of Revenue had not mailed a copy of the decision rendered in the administrative hearing to his attorney of record. The trial court in Gehrs held it was irrelevant whether this had occurred. The Eastern District of this court found that failure to mail a copy of the Findings of Fact and Conclusions of Law to the attorney was contrary to applicable administrative regulations. It held that, under those circumstances, the expiration time for filing a request for trial de novo specified by § 302.530.7 did not preclude further review. Under those facts, Gehrs proclaimed the aggrieved person could proceed under § 302.311, RSMo 1994.

There is no issue in this case about whether notice of the results of an administrative hearing was given. There was no administrative hearing. Petitioner’s reliance on Gehrs is misplaced.

Petitioner further argues that venue was proper in Butler County in view of this court’s holding in Hollis v. Director of Revenue, 792 S.W.2d 44 (Mo.App.1990). Hollis was an action seeking trial de novo of an administrative suspension of a driver’s license. Hollis holds the exclusive venue for that proceeding is the circuit court of the county where the arrest occurred. The relief petitioner sought in this case was not trial de novo of an administrative suspension. Petitioner sought removal of a suspension that appears on his Missouri driving record. Hollis is of no assistance to him.

Petitioner’s action is not a statutory challenge to a suspension of Missouri driving privileges. Venue is not determined by § 302.530.6 (the circuit court in the county where the arrest occurred) or by § 302.311, RSMo 1994 (the circuit court of the county of residence of the applicant or licensee). It is an action for equitable relief. It seeks removal of a suspension of Missouri driving privileges from the records maintained by the Department of Revenue.

The director has not provided this court with other authority or argument challenging venue. However, this court may consider plain errors affecting substantial rights when it finds that manifest injustice or miscarriage of justice has occurred. Rule 84.13. This court may ascertain whether manifest injustice occurred.

The entry of judgment in this case without the director having knowledge an action was pending denied him the right to assert a defense. It is difficult to perceive a more substantial right than the right of a person against whom an action is brought to appear and be heard.

The named defendant in this action is “Missouri Director of Revenue.” Venue of actions against executive heads of departments of state government lies in the county in which their offices are located and their principal official duties are performed absent statutes authorizing other suit to be brought in other locales. State ex rel. Dalton v. Oldham, 336 S.W.2d 519, 523 (Mo. banc 1960). The venue in an action against the director of revenue, unless otherwise prescribed by statute, is Cole County. State ex rel. Spradling v. Bondurant, 501 S.W.2d 527, 529 (Mo.App.1973).

“The primary purpose of Missouri’s venue statutes is to provide a convenient, logical, and orderly forum for the resolution of disputes.” State ex rel. Elson v. Koehr, 856 S.W.2d 57, 59 (Mo. banc 1993). A summons may issue from a court in which venue is not proper. State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820, 822 (Mo. banc 1994). If the summons is not itself defective, proper service of that summons results in personal jurisdiction over the defendant served. Id. However, “[t]he division of a circuit court in which a case is filed laying venue in the wrong division or wrong circuit shall transfer the case to any division or circuit in which it could have been brought.” § 476.410, RSMo 1994. But, the obligation to raise the issue of improper venue falls upon the party affected. Mogley v. Fleming, 11 S.W.3d 740, 746 (Mo.App.1999).

Petitioner argues that the director appeared by counsel at the original proceeding in this case “without raising the issue of service”; that this waived “all issues of service and the adequacy thereof. ...” The director filed a reply brief in which he points out that no summons issued in this case. He argues that nothing in the record shows he waived service of process; that he had no knowledge of petitioner’s lawsuit, actual or constructive. The director characterizes petitioner’s appeal as an “argument that the prosecutor can waive the issuance of summons and stipulate the case away by appearing in court when the Director has no actual or constructive knowledge of the lawsuit.” He characterizes that argument as “untenable.” Under the facts of this case, this court agrees.

The record on appeal does not reveal the manner in which the prosecuting attorney of Butler County became involved in this case. A copy of the trial court’s docket sheets (two pages) is included in the legal file. Other than the entry showing the filing of petitioner’s initial pleadings and a subsequent stamped entry, “JUDGEMENT [sic] CARD,” dated “AUG 20, 1999,” the entries are handwritten. Most of the handwritten entries are difficult to read. Petitioner’s initial pleadings were filed June 10, 1999. As best this court can decipher, a June 16, 1999, docket entry reflects the case was called; that “D. Moore” — inferably petitioner’s attorney of record, Daniel T. Moore — appeared. The docket entry appears to state that the matter was reset to July 7, 1999. Other words in the docket entry are unreadable.

A July 22,1999, entry, in different handwriting, states “Copy of docket to Both [sic] parties; case set 7-28-99 @ 9:00 am [sic] for ann — [sic].” A July 28, 1999, docket entry seems to say that the case was called; that “attys” appeared; that an indecipherable announcement was made and the case set for trial “8-11-99.” The docket entry includes no name of any attorney who appeared that date. Although places for recording the names of attorneys for the respective parties are provided at the top right side of the docket sheet, no name is shown as attorney for the director. Daniel T. Moore’s name appears as attorney for plaintiff or petitioner.

An August 11, 1999, docket entry states, “Case Called [sic]. Stipulation filed.” It is followed by a second entry with the same date that appears to include the words “judgment,” “as per stipulation,” and “file.” This court is unable to decipher the other words in the entry.

A December 8, 1999, docket entry reflects the filing of the motion to set aside the judgment that is the basis of this appeal, together with suggestions in support of the motion. A January 5, 2000, docket entry reflects that the case was called. Again, this court cannot decipher most of the words of that entry although it does note the words “[a]rguments heard and briefs filed.” As best this court can tell, the docket entry states the matter was taken under advisement. A January 18, 2000, docket entry states the motion to set aside the judgment was overruled.

The director argues that the prosecuting attorney of Butler County was not authorized to enter his appearance for the director because this was not a case involving revocation of a driver’s license pursuant to § 577.041.4, RSMo Cum.Supp. 1998, the statute that provides for revocation of driver’s license for refusal to submit to a chemical test or tests of breath, blood, saliva or urine to determine alcohol or drug content of a person’s blood pursuant to § 577.020. Section 577.041.4, RSMo Cum.Supp.1998, provides for the prosecuting attorney of the county where this occurs to represent the director at a hearing to determine if a basis exists to revoke a driver’s license for refusal to take the required test.

The director argues that § 577.041.4, RSMo Cum.Supp.1998, does not authorize a prosecuting attorney to appear on behalf of the director in other cases; that the Department of Revenue has employed legal counsel who represent the director in other types of cases. This court agrees.

An attorney-client relationship is an agency relationship. Sappington v. Miller, 821 S.W.2d 901, 904 (Mo.App.1992). The existence of an attorney-client relationship is governed by the same rules that apply to other agency relationships. Id.

The general principles defining the authority of an agent are easy to state. Express authority is usually created by the principal telling his agent what to do in express terms. See, e.g., Hyken v. Travelers Ins. Co., 678 S.W.2d 454, 457 (Mo.App.1984). Restatement (Second) of Agency § 7, Comments a and c (1958). Implied authority consists of those powers of the agent implied by or inferred from the authority expressly granted; i.e., those powers incidental and necessary to carry out the express authority. E.g. Mark Century Corp. v. Tiger Broadcasting Co., 509 S.W.2d 737, 738 (Mo.App.1974). Thus, to determine the existence and scope of express and implied authority, the focus is primarily on the principal and agent.

Barton v. Snellson, 735 S.W.2d 160, 162 (Mo.App.1987)[footnotes omitted].

The prosecuting attorney was the director’s attorney, his agent, in revocation cases arising from refusal to take statutory mandated tests for intoxication. The prosecuting attorney had express authority, via § 577.041.4, RSMo Cum.Supp.1998, to represent the director in those cases. That authority did not extend, either expressly or impliedly, to other cases in which the director was a party. The powers incidental and necessary to carry out duties assigned to a prosecutor by § 577.041.4, RSMo Cum.Supp.1998, do not include representation of the director in other types of cases. The prosecuting attorney of Butler County did not have authority to enter his appearance as attorney for the director in this case.

“[C]ircuit courts are invested with general jurisdiction of suits in equity, and in a proper case are invested with all the powers inherent in an English court of chancery.” Bormann v. City of Richmond Heights, 213 S.W.2d 249, 252 (Mo.App. 1948). However, “[pjroper service of process ... in the form and manner prescribed by law has ever been a prerequisite to a court’s acquiring jurisdiction of the person albeit has jurisdiction of the subject matter of the action.” State ex rel. Craig v. Grimm, 542 S.W.2d 335, 337 (Mo.App.1976). There has been no showing that summons was served on the director. There has been no showing that summons was issued.

The record before this court does not indicate that the director was properly before the trial court until his motion to set aside the earlier judgment was filed. Denial of the motion to set aside the August 11, 1999, judgment was manifestly unjust. The judgment denying that motion, is reversed. The case is remanded with directions that the August 11, 1999, judgment be set aside and that the director be permitted to proceed with all rights of a defendant who would be appearing before the court for the first time following service of process, including the right to object to venue.

SHRUM and MONTGOMERY, JJ., concur.

      . References to statutes are to RSMo Cum. Supp.1997, unless stated otherwise.

      . The copy of the "[stipulation” that appears in the legal file does not reflect a "date-file” stamp. Petitioner has filed no additional parts of the record in response to the legal file provided by the director as permitted by Rule 81.12(c), nor asserted any challenge to the accuracy of the legal file submitted by the director. The clerk’s certificate does not identify specific documents in the legal file as being part of the trial court record, but characterizes what has been filed in this court as "the original 'Legal File.' ” There having been no challenge to the accuracy of the legal file, this court considers the copy of the "[stipulation” that is included in the legal file as an accurate copy of what was filed in the trial court.

      . The petition filed in the trial court alleged that "without any notice to Petitioner” he was assigned a Missouri driver’s license number and "an alcohol suspension” was entered effective May 31, 1998. Suggestions in support of the director’s motion to set aside the trial court’s judgment state that the arresting officer gave petitioner "Notice of Suspension/Revocation.” However, the copy of the form used for that purpose that is included in petitioner’s purported Missouri Driver Record in the legal file is not signed by petitioner although the form has a place for signature by the person arrested to acknowledge its receipt from the arresting officer.

      . License suspension or revocation based on § 302.505 becomes effective 15 days after giving notice to the person whose driving privileges are the subject of that action. See § 302.525.1, RSMo 1994.

      . “The nature of a civil cause of action is determined from the allegations in the petition. Aetna Cas. & Sur. Co. v. Lindell Trust Co., 348 S.W.2d 558, 563 (Mo.App.1961). The form of the action is determined from the real nature and substance of the facts alleged, not from what the pleader may have called it. Id. See also, Main Street Feeds, Inc. v. Hall, 975 S.W.2d 227, 233 (Mo.App.1998), and Bishop v. Goldschmidt, 436 S.W.2d 47, 50 (Mo.App.1968).” Carnes v. Equitable Life Assurance Soc., 6 S.W.3d 175, 177 (Mo.App.1999).


author: HOWARD, Judge.

text:
    In the Interest of A.M.C. Juvenile Officer, Respondent, v. P.C. (Natural Father), Appellant, T.W. (Natural Mother), Defendant.
    No. WD 57334.
    Missouri Court of Appeals, Western District.
    Nov. 21, 2000.

      Pamela Lambert, Columbia, for appellant.
    Elizabeth K. Magee, Columbia, for respondent.
    Karen Digh, Fulton, for Guardian ad litem.
    Before BRECKENRIDGE, P.J., and ULRICH and HOWARD, JJ.
   HOWARD, Judge.

Natural father, P.C. (hereinafter “appellant”), appeals the judgment of the Circuit Court of Callaway County terminating his parental rights to A.M.C., a minor child. We affirm the circuit court’s judgment and remand the case to the trial court for consideration of appellant’s court-appointed counsel’s motion for attorney’s fees on appeal.

Background

A.M.C. was born on August 14, 1995, to T.W. and appellant. T.W. had a terminal illness with an unknown life expectancy. On March 30, 1996, T.W. was treated for a suicide attempt at the Mid Missouri Mental Health Center. The Division of Family Services (hereinafter “DFS”) received a call voicing concern for T.W.’s children. The children were taken into protective custody on April 11, 1996, when DFS discovered that the children were residing with known sex offenders, and T.W.’s home was in an “unsanitary condition.” On April 12, 1996, the trial court entered an emergency order of protective custody, granting DFS temporary custody and supervision of A.M.C. for placement in foster care. On April 16, 1996, the juvenile officer waived protective custody and returned A.M.C. to T.W. on the conditions that T.W. five alone, use DFS-provided daycare services, allow random DFS phone checks, and take advantage of DFS respite services. In addition, T.W. was ordered to have no contact with her brother and sister-in-law (both were registered sex offenders living at T.W.’s residence). It was also ordered that T.W.’s other two children have no contact with appellant and that appellant have only supervised visitation with A.M.C. A hearing was set for June on the petition.

On April 21, 1996, T.W. and appellant violated the court order and left Missouri with the children. They went to Las Vegas to get married. On April 22, 1996, the juvenile officer filed its first amended petition, again seeking immediate protective custody of A.M.C. The allegations included the following: on April 10,1996, an investigation showed that T.W.’s home was in an “unsanitary condition,” with animal feces throughout, clothes piled around and A.M.C. sleeping on a waterbed (a suffocation hazard for small children); A.M.C. was allowed to be around T.W.’s brother; in January of 1995, DFS had “found probable cause to believe that [appellant] had committed sexual abuse to a child, allegations that [DFS] received on or about February 10, 1994”; appellant had also been charged with second degree sexual assault and felony endangerment of a child and was thereafter convicted of an amended charge of sexual misconduct in 1992.

On May 6, 1996, after appellant and T.W. attempted to apply for state aid, Las Vegas officials picked the children up and returned them to Missouri officials. They were placed back in foster care. DFS maintained supervision of the children and “team meetings” were held in which A.M.C.’s parents’ progress in working toward family reunification was tracked. Progress reports concerning the children and parents were made to the court. On May 30, 1997, the juvenile officer filed a third amended petition. Among others were the allegations that appellant had refused to provide DFS with his address, that appellant was with A.M.C. without supervision, and that appellant’s sexual offender evaluation showed him to be at an “extremely high risk to reoffend.” On August 5,1997, a hearing on the petition as to appellant was heard. A.M.C. was then made a ward of the court in the custody and supervision of DFS for placement in foster care. Appellant was ordered to participate in and complete a sexual perpetrators program, to have no unsupervised contact with A.M.C., to participate in a substance abuse evaluation and follow treatment recommendations, to participate in a support group for persons with terminally ill family members, to maintain employment for six months if capable, to participate in family therapy and to complete a sex offender program, which was expected to last at least two years. A.M.C. remained in foster care during the time in which appellant was ordered to complete the recommended treatment.

On April 13, 1998, the juvenile officer filed a petition for termination of appellant’s parental rights. The case remained open on the docket until the termination hearing was held on February 17, 1999. Deanna Stubblefield, the DFS case manager assigned to A.M.C.’s case, testified on behalf of the juvenile officer and appellant testified on his own behalf. At the close of evidence, the trial court took the case under advisement and gave the parties until March 25, 1999, to file their proposed findings of fact and conclusions of law. The judgment terminating appellant’s parental rights was entered March 30, 1999. This appeal followed.

Standard of Review

Unless the judgment terminating appellant’s parental rights is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law, we must affirm. In re C.M.D., 18 S.W.3d 556, 560 (Mo.App.W.D.2000). In our review, we consider all facts and reasonable inferences therefrom in a light most favorable to the judgment below, and we will reverse “only when we firmly believe that the judgment is wrong.” Id. Witness credibility issues are matters for the trial court to decide. Id.

Point I

In his first point on appeal, appellant alleges that the trial court erred in terminating his parental rights, because the statutory requirements for termination of parental rights were not met. Specifically, he argues that “the only factor for involuntary termination was the child had been out of the home for one year and this was because the Division of Family Services had failed to comply with its obligation to make reasonable attempts to reunify the family or place the child with relatives.”

Section 211.447.2 RSMo Cum. Supp.1997 provides in relevant part:

The juvenile court may terminate the rights of a parent to a child upon a petition filed by the juvenile officer ... if the court finds that the termination is in the best interests of the child and when it appears by clear, cogent and convincing evidence that one or more of the [six] grounds [enumerated therein] exist.

(Emphasis added.) We consider evidence “clear, cogent and convincing” if it “‘instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.’ ” Id. (quoting In the Interest of J.M., 815 S.W.2d 97, 101 (Mo.App. W.D.1991)). “This test may be met despite the presence of contrary evidence before the court.” In re J.W., 11 S.W.3d 699, 703 (Mo.App. W.D.1999). If the trial court determines that one or more of the statutory grounds for parental rights termination was adequately pleaded and proved, it must also determine whether termination is in the child’s best interests. In re C.M.D., 18 S.W.3d at 560.

In terminating appellant’s parental rights, the trial court relied upon the grounds set forth in § 211.447.2(3), which states:

The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child’s prospects for early integration into a stable and permanent home. In determining whether to terminate parental rights under this subdivision, the court shall consider and make findings on the following:
(a) The terms of a social sendee plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms;
(b) The success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child;
(c) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;
(d) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control over the child and which cannot be treated so as to enable the parent to consistently provide such care.

The trial court’s judgment correctly tracks these required findings. Additionally, as required by § 211.447.3, the court evaluated and made findings regarding the statutory factors therein that were appropriate and applicable to the case. Tracking the language of § 211.447.3(l)-(7), the court found in its findings of fact (paragraphs 20, 22 and 23) and its conclusions of law (paragraphs 5 and 8):

20. [A.M.C.’s] parents [had] failed to acknowledge holidays or juvenile’s birthdays with cards or gift, although [AM.C.’s] parents did acknowledge Christmas, 1997 for [A.M.C.].
22. [A.M.C.’s] parents [had] failed to contribute financially towards the care and maintenance of [A.M.C.], although [A.M.C.’s] parents [had] provided clothing for [A.M.C.] on a few occasions. 23. [A.M.C. had] limited emotional ties to his parents.
5. ... [Additional services [were] not likely to bring about lasting parental adjustment enabling a return of [A.M.C.] to the father or mother within an ascertainable period of time.
8. [Appellant had] demonstrated a significant disinterest and lack of commitment towards [A.M.C.].

Subsections (6) and (7) of § 211.447.3 were not “appropriate and applicable,” so the trial court made no findings on those factors.

In his argument, appellant alleges that the evidence failed to show that he abandoned A.M.C. The trial court made no such finding in terminating appellant’s parental rights. Section 211.447.2, as set forth above, states that the court may terminate parental rights based on “one or more” of the six grounds enumerated therein. Abandonment, set forth in subsection (1) of that statute, is only one of the six grounds, and findings do not have to be made as to all six grounds. The court’s judgment is based on its findings pursuant to subsection (3), not subsection (1), of § 211.447.2. Thus, we do not address appellant’s abandonment argument.

The remaining portion of appellant’s argument appears to suggest that the child was under the trial court’s jurisdiction for a period exceeding one year, thereby making § 211.447.2(3) applicable, only because DFS failed to “comply with its obligation to make reasonable attempts to reunify the family or place the child with relatives.” In particular, he complains that DFS changed his visitation schedule, so he was not able to maintain visitation with the child. He also complains that DFS failed to fund the ordered treatment, so he was unable to comply. He claims that “[h]e has been involved in the treatment recommended by DFS since the treatment was finally funded.” However, his citation to the transcript does not support this claim. The page cited by appellant in support of his claim is from the testimony of Ms. Stubblefield. It does not stand for the proposition for which appellant cites it. Viewing the evidence in a light most favorable to the judgment, we found no support in the record for appellant’s argument.

Moreover, “absence of treatment or services is no defense to a termination proceeding.” In the Interest of D.B., 916 S.W.2d 430, 434 (Mo.App. E.D.1996). Contrary to appellant’s claim, the record indicates that DFS provided numerous services and made several reasonable attempts to “unify the family.” Ms. Stubble-field testified that she supervised more than thirty of appellant’s visitations with A.M.C. in Callaway County. Initially DFS allowed weekly visits, but the visits were gradually reduced to monthly due to appellant’s behavior with A.M.C. and appellant’s failure to comply with treatment requirements. Appellant also had supervised visitations while A.M.C. was living with a foster family in Boone County. When AM.C. was initially removed from appellant’s home, DFS also had team meetings, during which they set up a social service and treatment plan. Appellant was provided with notice of these meetings and attended some of them with T.W. His treatment plan required, among other things, a psychological evaluation, a sex offender evaluation and a substance abuse evaluation. Ms. Stubblefield testified that appellant would agree to the treatment plan “and then would fail to follow through on the treatment plan recommendations.” For example, he only “sporadically” participated in the recommended couple’s counseling. She also testified that although he eventually obtained the sex offender and substance abuse evaluations, he did not follow through with the recommended treatment as ordered.

Appellant claims that his failure to follow through was due to DFS’s failure to respond to his requests for more information and for funding to be forwarded to the treatment providers. However, Ms. Stub-blefield testified that she sent letters to the county where appellant resided authorizing or requesting that he receive the recommended treatment. She also made multiple attempts to refer him to therapy. She testified that if appellant was not happy with DFS arranging his treatment, he could have arranged for it on his own. His claims that he could not afford the treatment were defeated by her explanation that the providers accepted patients on a sliding scale fee basis. Although appellant eventually received some treatment, he consistently failed to follow through on it. This court has held that “DFS [does] not have to provide the parent all services at their disposal before the termination of parental rights. [Citation omitted.] When the parents refuse to cooperate with and fail to progress in services offered, the court may find that additional services would be useless.” In the Interest of R.A., 918 S.W.2d 142, 146 (Mo.App. W.D.1996).

Appellant testified that he was making every effort to comply with the social plan, so he could be reunited with A.M.C. The trial court apparently did not attribute great credence to his statements. This court defers to the trial court’s ability to determine the credibility of witnesses and to choose between conflicting evidence. In re J.W., 11 S.W.3d at 704-05. “[C]lear, cogent and convincing” evidence, viewed in a light most favorable to termination, supports the trial court’s findings that the statutory requirements for the termination of appellant’s parental rights, pursuant to §§ 211.447.2(3) and 211.447.3, were met and that it was in A.M.C.’s best interests for appellant’s parental rights to be terminated.

We note that in appellant’s first point on appeal, he also contends that DFS somehow interfered with his visitations. As noted above, appellant’s initial weekly visits with A.M.C. were reduced to monthly. The record reflects that appellant sought a hearing on the visitation issue, because it interfered with his work schedule, and the court ordered DFS to accommodate that schedule if possible. Monthly visitation was within the court’s ordered visitation parameters, and the evidence supports a finding that DFS did not interfere.

Appellant also claims that DFS failed to place the children with relatives. Appellant’s only statement related to family placement made in his brief is: “[T]he natural father’s situation as to the conditions which let [sic] to the assumption of jurisdiction do not still exist.... The appellant lives in stable housing hear [sic] the paternal grandparents who are themselves approved for foster parenting in Camden County, Missouri.” This statement is not an argument in support of appellant’s claim that A.M.C. should have been placed with relatives. In fact, it appears to be an argument relating to appellant’s conduct intended to show repentance of his abandonment of A.M.C. See, e.g., In re J.W., 11 S.W.3d at 705-06. As stated above, the trial court’s termination of appellant’s parental rights was not grounded upon abandonment. His claim regarding family placement “stands without reference to any legal authority and is devoid of analysis. Without more, this Court cannot provide meaningful appellate review.” Green v. Lebanon R-III School Dist., 13 S.W.3d 278, 285 (Mo. banc 2000).

Point I is denied.

Point II

In his second point on appeal, appellant alleges that he was denied due process in the termination proceedings because “he was not provided a speedy hearing which in itself was necessary to maintain the parental relationship.”

Appellant’s entire argument as to this point is as follows:

211.447 RSMo. Mandates a speedy hearing as do the Missouri and United States Constitutions. Because of considerations by the Juvenile Office for the availability of witnesses and lack of available court time this matter was repeatedly continued. (Transcript generally) Although the child was removed from the home of the Natural Mother in April 1996 the hearing on the child becoming a ward of the Juvenile court was not heard until August 5, 1997. (LF 27-39) The Division of Family Services began proceedings to terminate parental rights later that same month. (LF 27-39). Appellant was not provided the services he needed to reunify with the minor child until the spring 1998. See also Argument for Points I and II.

Section 211.447 does not specifically mandate a speedy hearing. The constitutional mandate on speedy trials relates to criminal cases. See, e.g., the Sixth Amendment to the United States Constitution, made applicable to Missouri criminal defendants by the Fourteenth Amendment, and by Article I, § 18(a) of the Missouri Constitution. No other authority is cited to support appellant’s point, nor does he explain the absence of citations to supporting authority.

Because an appellate court is not required to review an appellant’s point relied on, which appears without citation of applicable or relevant authority, or if no authority exists, the appellant is required to include an explanation for the absence of citation, we find that the claim raised in [appellant’s] Point [II] is abandoned.

Coleman v. Gilyard, 969 S.W.2d 271, 274 (Mo.App. W.D.1998) (citations omitted); Missouri Rule of Civil Procedure 84.04 (2000).

Point II is denied.

Point III

In his third and final point on appeal, appellant alleges that the trial court’s termination of his parental rights was against the weight of the evidence. Specifically, he alleges that the trial court erred in relying on the juvenile office and DFS’s recommendations and in adopting the juvenile office’s proposed order verbatim. He claims that substantial evidence showed that DFS “prejudged the necessity of termination prior to providing appellant with the services necessary for reunification.”

Appellant’s argument on this point is basically an extension of Point I. Even if DFS did indeed “prejudge” the necessity of termination, it does not mean that the termination of his parental rights was against the weight of the evidence. DFS does not terminate parental rights, that is the juvenile court’s job pursuant to § 211.447. The juvenile officer bore the burden of proving strict and literal compliance with the statute. In re A.M.C., 983 S.W.2d 635, 637 (Mo.App. S.D.1999).

We find that the juvenile officer satisfied its burden in this case. Ms. Stubblefield testified that in August of 1997, after A.M.C. had been in out-of-home placement for over a year with no change in his parents’ progress, DFS began a termination “packet” or social summary, outlining DFS’s future actions with regard to termination. DFS first became involved in A.M.C.’s life in April of 1996. Appellant now suggests that because DFS intended to seek termination, they had no reason to provide him with the services he required. However, as stated above in Point I, “absence of treatment or services is no defense to a termination proceeding.” In Interest of D.B., 916 S.W.2d at 434. Nonetheless, DFS made efforts to see that services were available to appellant. DFS’s “case plan” entered on June 9, 1997, reflects the fact that DFS still expected to achieve family reunification and clearly set forth the recommended treatment plan for appellant. Termination did not occur for another two years after DFS started its “packet” evincing their intention to seek termination. Appellant had more than two years to abide by the treatment recommendations in order to continue his parental relationship with A.M.C. During that time, he did not make the necessary changes in his life. As appellant points out, the trial court is required to consider and make findings on “[t]he success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child.” § 211.447.3(b) (appellant’s emphasis). The trial court found that “[t]he efforts of [DFS had] failed to aid the parents on a continuing basis in adjusting their circumstances or conduct to provide a proper home for [A.M.C.].” That DFS’s efforts failed does not mean that the trial court found DFS’s servicés insufficient. It merely means that its efforts were not successful.

We found in Point I that “clear, cogent and convincing” evidence supports the trial court’s finding that the statutory requirements for termination of appellant’s parental rights, pursuant to §§ 211.447.2(3) and 211.447.3, were met and that the termination of appellant’s parental rights was in A.M.C.’s best interests. Likewise, the weight of the evidence, as set forth above, supports the trial court’s termination of appellant’s parental rights.

Point III is denied.

Conclusion

After finding that the trial court’s judgment terminating appellant’s parental rights is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law, we affirm.

Appellant’s court-appointed counsel has moved for attorney’s fees on appeal. In accordance with In the Interest of K.L., 972 S.W.2d 456, 461-62 (Mo.App. W.D.1998) (citations omitted):

Section 211.462.4 authorizes taxing a private party or agency, a state agency, or a county for attorney fees for a court-appointed attorney’s trial and appellate work in termination of parental rights cases. Award of attorney fees is a matter of discretion for the circuit court.

Accordingly, we affirm the circuit court’s judgment terminating appellant’s parental rights and remand the case to the circuit court for its determination on counsel’s motion for attorney’s fees. Id.

BRECKENRIDGE, P.J., and ULRICH, J., concur.

      . At the time this matter arose, T.W. had three children — A.M.C. and two children bom to another father. According to the juvenile officer’s first amended petition seeking protective custody of A.M.C., her parental rights to another child had also been terminated on August 6, 1990. This opinion applies only to the termination proceeding in the interest of A.M.C.

      . Appellant also had a chronic illness. He asserts that he was not supposed to work, but did so in order to abide by the court's order. However, the order did not say he must work, only that he was to maintain employment if capable.

      . Section 211.447 was amended effective July 1, 1998, between the filing of the petition for termination and the entry of the judgment. The trial court correctly made its findings of fact and conclusions of law under § 211.447 RSMo Cum.Supp.1997, and we conduct our review of the father’s appeal under that version of the statute. In re C.M.D., 18 S.W.3d at 561. Thus, all statutory references are to RSMo Cum.Supp.1997, unless otherwise noted.

      . Section 211.447.3 states, "[w]hen considering whether to terminate the parent-child relationship pursuant to subdivision ... (3) ... of subsection 2 of this section, the court shall evaluate and make findings on [seven itemized] factors, when appropriate and applicable to the case.” The trial court properly evaluated and made findings on these factors.

      . We set forth the trial court’s findings as found in its judgment. The numbered paragraphs do not correspond to the numbered required findings of the statute.


author: SPINDEN, Chief Judge.

text:
    Dixie C. McREYNOLDS and William R. McReynolds, Appellant, v. Jerome J. MINDRUP, Respondent.
    No. WD 57690.
    Missouri Court of Appeals, Western District.
    Nov. 21, 2000.

      Joseph R. Borich, III, Leawood, KS, for appellant.
    Timothy S. Frets, Kansas City, for respondent.
   SPINDEN, Chief Judge.

The issue that the parties presented to us in this case was whether the circuit court properly applied the standard enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), in refusing to let a plaintiff in a medical malpractice lawsuit present expert testimony. The issue manifested itself in a lawsuit by Dixie and William McReynolds against a dentist, Jerome Mindrup, concerning his use of filling amalgam containing mercury. Dixie McReynolds asked him in 1992 to remove an old filling and to replace it with a filling not containing mercury because she feared the effect of mercury on her health. The McReynoldses claim that Mindrup removed the old filling negligently and replaced it with a new filling containing mercury. They sued Mindrup for dental malpractice, assault and battery, loss of consortium, and punitive damages.

The McReynoldses’ complaint centers on Judge Edith Messina’s order to preclude their experts from testifying. They had sought to present the testimony of David C. Kennedy, D.D.S., that the standard of care recognized by the International Academy of Oral Medicine and Toxicology concerning removal of amalgam dental fillings was correct, although a minority position, and that the majority position recognized by the American Dental Association was incorrect. They also sought to present the testimony of F. Fuller Royal, M.D., a homeopathic physician and Dixie McReynolds’ treating physician; G. Mark Richardson, Ph. D., a specialist in risk assessment who has assessed the risk of mercury in dental amalgam for Canadian authorities; and W. Jess Clifford, a microbiologist and immunologist.

Judge Messina, after a week-long evi-dentiary hearing, issued an order which she titled, “Partial Judgment.” It said:

IT IS ... ORDERED that the [McReynoldses’] experts’ testimony does not meet the requirements for admissibility under the [standard of Frye v. United States, 293 F. 1013 (D.C.Cir. 1923) ]. The testimony of G. Mark Richardson, Walter Clifford, David Kennedy and Fuller Royal do not fall under the admissible evidence standard required by [Frye] and its progeny in Missouri case law and are hereby found to be inadmissible at trial in this case.

Judge Messina, nonetheless, denied Mindrup’s motion for summary judgment.

The case was transferred to Judge Jon Gray, and Mindrup renewed his motion for summary judgment. On September 2, 1999, Judge Gray granted the motion and ordered that the McReynoldses’ malpractice claim be dismissed with prejudice. Remaining at issue in the case are the McReynoldses’ claims for assault and battery, loss of consortium, and punitive damages. Judge Gray certified the case for appeal of his ruling under Rule 74.01(b) and announced this rationale:

[T]he [e]ourt has considered the following factors. First, the “Partial Judgment” entered by Judge Edith Messina on January 27, 1999 prevents the plaintiffs from presenting testimony from any expert witness at trial. The inability of the plaintiffs to present this testimony (1) precludes ... Dixie McReynolds from presenting a prima facie case on her negligence claim; (2) may preclude ... William McReynolds from presenting a prima facie case on his loss of consortium claim; and (3) prevents ... Dixie McReynolds from recovering more than nominal (and perhaps punitive) damages on her battery claim. The likelihood of an appeal following the entry of this judgment (and the issues arising under Judge Messina’s “partial judgment”) will not be significantly affected by an immediate trial of the [McReynoldses’] battery claim, regardless of the outcome.
Second, the appeal may obviate the need for an unnecessary trial on [the McReynoldses’] battery claim in Count II. If this judgment is affirmed on appeal, [the McReynoldses] may determine that the cost and expense of trial is not justified in seeking the recovery of nominal damages on their battery claim. Conversely, if this judgment is reversed on appeal, all three of the [McReynolds-es’] claims may be tried in one trial. This will avoid a wasteful trial of the [McReynoldses’] battery claim and then a retrial of this claim (along with the [McReynoldses’] other claims) following the appellate court’s reversal of this judgment.

Although Mindrup does not question the propriety of the circuit court’s designating its judgment as appealable, we raise the issue sua sponte because a final judgment is a prerequisite for appellate review. Committee for Educational Equality v. State of Missouri, 878 S.W.2d 446, 450 (Mo. banc 1994).

Rule 74.01(b) expressly restricts its application to cases having “more than one claim” or having multiple parties against whom a judgment is entered. The McReynoldses do not present such a case. Their lawsuit presented several remedies against Mindrup, but only one claim. As the Supreme Court has instructed, “[A] judgment that disposes of only one of several remedies and leaves other remedies relating to the same legal rights open for future adjudication is not a final judgment under Rule 74.01(b).” Committee for Educational Equality v. State of Missouri, 878 S.W.2d at 451. In explaining how to distinguish between a claim and a remedy, the Supreme Court relied on this reasoning:

If a complaint seeks to enforce only one legal right, it states a single claim, regardless of the fact that it seeks multiple remedies.... A further refinement of what is meant by “one claim” is that a claim is “the aggregate of operative facts which give rise to a right enforceable in the courts.” ... Worded somewhat differently, claims are considered separate if they require proof of different facts and the application of distinguishable law, subject to the limitation that severing the claims does not run afoul of the doctrine forbidding the splitting of a cause of action.... The purpose and policy ... is to avoid redundant review of multiple appeals based on the same underlying facts and similar legal issues.

Id. at 451 (citations omitted).

In Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997) (citation omitted), the Supreme Court further explained, that to be ready for appeal under Rule 74.01(b), the circuit court’s order must dispose of “a distinct ‘judicial unit.’ ” It explained the meaning of “judicial unit for appeal:”

“An order dismissing some of several alternative counts, each stating only one legal theory to recover damages for the same wrong, is not considered an ap-pealable judgment while the other counts remain pending because the counts are concerned with a single fact situation.” Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597, 600 (1953). It is “differing,” “separate,” “distinct” transactions or occurrences that permit a separately appealable judgment, not differing legal theories or issues presented for recovery on the same claim. Id.

The circuit court improperly certified the case as proper for appeal under Rule 74.01(b). The circuit court’s granting summary judgment of the McReynoldses’ negligence action disposed of merely one remedy of the McReynoldses’ single claim against Mindrup. They had a single claim but multiple remedies, sounding in separate counts, against Mindrup. All of their remedies rested on proof of the same underlying facts — that Dixie McReynolds was injured by mercury intoxication as a result of Mindrup’s acts. The allegations in the multiple counts arose from the same occurrences. Hence, Rule 74.01(b) does not pertain to their lawsuit. Because it did not dispose of McReynolds’ battery action, the circuit court did not resolve a single judicial unit, and its judgment is neither final nor appealable. We, therefore, remand the case to the circuit court for further proceedings leading to a final judgment.

VICTOR C. HOWARD, Judge, and RONALD R. HOLLIGER, Judge, concur.

      . Kennedy formerly was president of the academy. Mindrup presented evidence that the academy opposed use of mercury in dentistry and that it accused the American Dental Association of providing misleading and scientifically inaccurate information about dental amalgams.

      . That rule says, “When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay.”