author: GARY M. GAERTNER, JR., Judge.

text:
    Leroy PALMER, Respondent, v. UNION PACIFIC RAILROAD COMPANY, Appellant.
    No. ED 92841.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 30, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 4, 2010.
    Application for Transfer Denied June 29, 2010.

      James W. Erwin, Nicholas J. Lamb, Booker T. Shaw, St. Louis, MO, for appellant.
    Daniel R. Francis, St. Louis, MO, for respondent.
   GARY M. GAERTNER, JR., Judge.

Introduction

Union Pacific Railroad Company (Union Pacific) appeals from the trial court’s judgment entered in accordance with a jury verdict in favor of Leroy Palmer (Palmer) and against Union Pacific in an action brought by Palmer under the Federal Employers’ Liability Act (FELA), 45 U.S.C. Section 51 et seq. We affirm.

Factual and Procedural Background

Palmer initiated this action under FELA. In his First Amended Petition, Palmer alleged that, while employed by Union Pacific, he was a passenger in a Union Pacific vehicle that was involved in a motor vehicle accident. Palmer further alleged that he was injured when a Union Pacific employee failed to keep a careful lookout and turned in front of a vehicle. Palmer claimed that his injuries and damages were due in whole or in part to Union Pacific’s negligence in one or more of the following respects: 1) it failed to provide him with reasonably safe conditions for work; 2) it failed to provide him with a reasonably safe place to work; 3) it failed to provide him with reasonably safe transportation; 4) it failed to maintain a careful lookout; or 5) it negligently and carelessly allowed unsafe practices to become common practice.

Palmer alleged that as a result of Union Pacific’s negligent conduct, he suffered serious, painful and permanent injuries to his head, back, neck, left shoulder and upper extremities, including but not limited to vessels, muscles, ligaments, nerves, intervertebral discs, and adjacent structures. Palmer also alleged emotional and psychological damages, including depression and dysthymic disorder.

Palmer filed a pre-trial motion in limine, asking the trial court, as relevant, to prohibit Union Pacific from stating that any other non-party driver had caused any portion or all of Palmer’s injuries and damages and from stating that Union Pacific was therefore not responsible for his injuries. The trial court granted this request in part and denied it in part.

Following trial, a jury returned a verdict in favor of Palmer and assessed damages at $1,600,000. Viewing the evidence and all reasonable inferences to be drawn therefrom most favorably to Palmer, the pertinent evidence adduced revealed the following.

Palmer, who worked as a trackman and machine operator for Union Pacific, testified that he drove from his home in Helena, Arkansas, to Rison, Arkansas, to report for work on July 28, 2005. He arrived at Rison around 6:30 a.m. and received his safety and job briefing from his supervisor, Stanley Adams (Adams). During this briefing, Adams told Palmer and the rest of the crew to travel to a location outside of Rison to install ties. The crew was told that they would be working on two crossings. The crew was not given a map of the area and was not told the name of the road leading to the job site. They were merely told to follow Adams.

Palmer rode to Rison in a company vehicle to the first job site with an employee named Bernard Simpson (Simpson). Palmer’s supervisor called a dispatcher for “track in time,” which is permission to get on the track to work; however, Palmer’s crew did not receive permission to install the ties at this job site. Because they did not receive track in time, Palmer and the rest of the crew were told to travel to another crossing outside of Rison. The crew was traveling in several trucks. Adams drove the lead truck. Simpson’s truck was the last in line.

The caravan of trucks proceeded north on Highway 79 towards Pine Bluff, Arkansas, but missed the turn to the job site. The trucks turned around in a field and proceeded to travel southbound on Highway 79, with Simpson’s truck in the lead. None of the workers knew where they were going because they had not worked in the area before, and the tracks could not be seen from the highway. Simpson slowed the truck he was driving as he tried to find the logging road that led to the job site. Traffic began to back up behind the trucks.

Palmer, who wore a seat belt, was sitting in the baek seat of the truck driven by Simpson and was looking forward. Palmer did not recall Simpson activating a turn signal. As Simpson started to turn onto the logging road, his truck was struck by a green ear. The impact knocked Palmer unconscious. When he regained consciousness, Palmer found himself lying across the back seat. Palmer was taken by ambulance to the Jefferson Regional Medical Center in Pine Bluff.

Two other Union Pacific employees who were members of the work crew that day, Simpson and Billy Smith (Smith), testified at trial. Both Simpson and Smith agreed that the crew was not provided clear instructions about where it was to travel and that the crew was not given mile marker information for the job location during the July 28 job briefing. Simpson and Smith both acknowledged that Adams was driving the lead truck when the crew missed the turn to the job site and that Simpson took the lead after the trucks turned around.

Simpson further testified that it was raining that day and the road was wet. After they missed their turn, the crew asked for more directions and was told to go back and look for a stop sign that had a bow on it.

When Simpson arrived at the stop sign, he was driving about 35 miles per hour, which was about 20 miles below the speed limit. He saw a northbound car rapidly approaching, so he stopped the truck at the intersection to let the car pass by. Simpson looked to ensure the way was clear. His turn signal was on. After the northbound car passed him, Simpson began his turn. About halfway through his turn, Simpson heard a car horn. He looked and saw a car approaching in the northbound lane, so he “goosed it.” The car struck the two back doors of Simpson’s truck. The truck spun around and went into a ditch.

During cross-examination, Palmer asked whether Simpson had ever been convicted of a misdemeanor. Simpson indicated that he had not. When Palmer then asked Simpson if he had pleaded guilty to first-degree family assault, Simpson admitted that he had. After Simpson indicated that he had forgotten the incident, Palmer stated, “Okay. So I just want to go over the details of how you can forget that incident.” Union Pacific objected, and the following bench discussion occurred, after Palmer indicated that Simpson had two convictions:

The Court: My ruling is you can ask him did he have another conviction, yes or no, and what was it for, this or that.
[Palmer]: There’s another issue. In opening statement he vouched this man was a family man, worried about his wife.
The Court: I think the prejudice outweighs the relevance. If you want to get into the details of the crime, I say no.
[Palmer]: I have the case law that says you are allowed to whenever the witness is lying.
[Union Pacific]: I think the judge can use discretion. So are you sustaining the objection about him getting into it?
The Court: I am sustaining the objection with respect to the details of the crime.

Subsequently, Palmer again asked Simpson if he had pleaded guilty to first-degree family assault and Simpson indicated he had. Palmer then asked Simpson if he had pleaded guilty to another offense of first-degree assault on a family member. When Simpson denied that he had, Palmer said, ‘You pled — well, let’s go over it then. You did one for your wife and one for your daughter; is that correct?” Simpson replied, “No.” After Simpson indicated that he did not think he had to tell about these incidents because they were personal, Palmer attempted to establish that Simpson “selectively [chose] what truth to tell.” Thereafter, the trial court sustained various objections and instructed Palmer to move on. During a recess, the trial court denied Union Pacific’s motion for mistrial based on the cross-examination of Simpson with respect to his misdemeanor conviction.

During his trial testimony, Smith further stated that he was driving the second truck, behind Simpson’s. The trucks were traveling below the speed limit so that they would not miss the turn-off again. Smith also testified that Simpson activated his left turn signal when he prepared to make his left turn on to the logging road. Simpson’s truck was at a dead stop. A big Aramark truck was behind the three Union Pacific trucks on the highway.

Before Simpson could turn, a car approached. After this vehicle passed, Simpson paused for a few seconds, and started to turn. Halfway through Simpson’s turn, a car “came up from nowhere,” passing the four vehicles. Smith could not see this car because it was behind the Aramark truck. Simpson’s truck was halfway into the lane when the car hit the truck. Prior to the collision, the Union Pacific trucks were traveling only two or three miles per hour.

Richard Moore (Moore), a witness to the collision, testified that on July 28, 2005, he was driving an Aramark delivery truck from Pine Bluff to Camden. As Moore traveled south on Highway 79, he came upon three Union Pacific trucks. He could tell the trucks were slowing because their brake lights were activated, so he slowed also, maintaining two — to three-car-lengths between him and the last truck. The Union Pacific trucks stopped.

When Moore approached the three trucks, he could not tell that they were preparing to make a left turn. As Moore slowed his vehicle, he noticed a car passing him at a speed Moore estimated to be in excess of 60 miles per hour. The lead Union Pacific truck then began to make a left-hand turn onto a gravel road. After this first truck began its turn, Moore saw for the first time that the truck’s left-hand turn signal was activated. He could not recall if the truck immediately in front of his had its turn signal activated, but remembered seeing the truck’s brake lights. The passing car attempted to brake. The turning Union Pacific truck accelerated in an attempt to avoid a collision, but did not succeed.

Portions of the videotaped deposition of Leon Warren (Warren), the driver of the car that struck the Union Pacific truck, were played for the jury. In this deposition, Warren testified that he was traveling northbound on Highway 79 on July 28, 2005. When he approached the Union Pacific trucks, he put on his turn signal to indicate he was going to pass. After he passed two of the vehicles, he started to return to his lane, but noticed another Union Pacific truck ahead of him. This truck got over to the right and appeared to be attempting a u-turn. Warren did not see an access road. Warren did not see a turn signal.

Alex Sylvester (Sylvester), a retired Arkansas State Police Officer, testified that he responded to the accident on July 28. Sylvester testified that the driver of the Union Pacific truck was required by law to use a turn signal. He further testified that drivers were required to travel at a speed that did not impede the flow of traffic on all state highways, unless otherwise posted. Passing on Highway 79 was not prohibited at the location of the accident.

The parties stipulated at trial that Palmer, due to his injuries sustained in the accident, is medically disabled from returning to work as a trackman or machine operator for Union Pacific.

At the rest of plaintiffs case, Union Pacific moved for a directed verdict, claiming Palmer failed to adduce any evidence that Union Pacific was negligent. Union Pacific argued that, rather, the evidence revealed that the negligence of a third party was the sole cause of Palmer’s injuries. The trial court denied the motion, ruling that Palmer had adduced sufficient evidence from which the jury could infer that Simpson failed to properly check for a car approaching in the lane into which he wished to turn, and concluding there was insufficient evidence of sole cause.

During closing argument, Union Pacific argued that Warren’s testimony that he did not see the access road, the third Union Pacific truck, or the Aramark truck, did not make sense. Palmer objected, “This is going outside the motion [in li-mine].” Union Pacific apologized and said it would “tone it down.” Later, Union Pacific argued, “Yeah, he was injured, but it wasn’t our fault.” Union Pacific further told the jury, “What it is to say is that we didn’t cause those accidents, Union Pacific — excuse me, those injuries. Union Pacific was not negligent.” After stating that Simpson’s truck was hit by a car trying to pass four trucks on a wet road, and reminding the jury of Warren’s testimony, Union Pacific argued, “And it does make sense that Mr. Warren wouldn’t be able to see the turn signal. His vision was impeded by a 10-foot high truck — ” The trial court sustained Palmer’s objection that this argument addressed nonrailroad conduct.

After the jury returned its verdict, Union Pacific filed several post-trial motions, including a Motion for Judgment Notwithstanding the Verdict (Motion for JNOV), a Motion for New Trial, and a Motion to Amend Judgment. In its Motion for JNOV, Union Pacific argued that the record lacked evidence showing Union Pacific breached its duty to provide a reasonably safe workplace, and that Palmer adduced no evidence of foreseeability. In its Motion for New Trial, Union Pacific asserted, among other things, that the trial court erred when it prohibited Union Pacific from arguing that the negligent conduct of a third party was the sole cause of Palmer’s injury. In its Motion to Amend, Union Pacific asked the court for an order amending the judgment to include an offset that reflected Palmer’s pretrial settlement with a third party’s insurance company for $25,000. The trial court denied Union Pacific’s post-trial motions. This appeal follows.

Points on Appeal

In its first point, Union Pacific claims the trial court erred in denying its Motion for JNOV because Palmer failed to make a submissible case on any of his liability theories, in that Simpson was not required to anticipate that Warren would violate Arkansas traffic laws, and there was no evidence that: 1) Simpson failed to signal a left turn, or that a failure to signal a left turn played any role in causing the accident; 2) Simpson lost control of the truck; 3) vehicle accidents were a reasonably foreseeable consequence of inadequate directions or a failure to supply a map; and 4) Simpson was an unqualified driver.

In its second point, Union Pacific claims the trial court erred in overruling its Motion for New Trial because Union Pacific had the right to discuss the evidence of Warren’s negligence and to argue that Warren’s negligence was the sole cause of the accident, in that: 1) evidence of Warren’s conduct was admitted into evidence; 2) a contention that negligence of a third party was the sole cause of the accident is a viable defense to an FELA claim; and 3) a party has the right to comment on any evidence admitted at trial and to argue its theory of defense.

In its third point, Union Pacific claims the trial court erred in denying its Motion for a Mistrial because Palmer’s cross-examination of Simpson exceeded the permissible scope of Section 491.050 RSMo 2000, in that Palmer asked Simpson about the details of his misdemeanor convictions after the trial court ruled Palmer could not ask such questions.

In its fourth point, Union Pacific claims the trial court erred in overruling Union Pacific’s Motion to Amend the Judgment because Union Pacific was entitled to a setoff of the amounts Warren paid to Palmer, in that a plaintiff is entitled to multiple judgments or settlements but only one satisfaction of his or her total damages to avoid a windfall.

Standard of Review

In reviewing a denial of a motion for judgment notwithstanding the verdict, we view the evidence and all reasonable inferences to be drawn therefrom most favorably to the plaintiff, disregarding any contrary evidence. Coggins v. Laclede Gas Co., 37 S.W.3d 335, 338 (Mo.App. E.D. 2000). Our review is to determine wheth er the plaintiff made a submissible case. Id.

We review for abuse of discretion a trial court’s denial of a motion for new trial. Burrows v. Union Pac. R.R. Co., 218 S.W.3d 527, 533 (Mo.App. E.D.2007). We will disturb a trial court’s ruling only if there is a substantial or glaring injustice. Id.

A denial of a motion for mistrial and a denial of a motion to amend judgment are also reviewed for abuse of discretion. Id. at 535 (standard of review for trial court’s denial of motion for mistrial); LaRose v. Washington Univ., 154 S.W.3d 365, 370 (Mo.App. E.D.2004) (standard of review for trial court’s denial of motion to amend judgment).

Discussion

Point I

Judgment notwithstanding the verdict is a drastic action, and “should be granted only when reasonable persons could not differ as to the correct disposition of the case.” Coggins, 37 S.W.3d at 339. “To make a submissible case, a plaintiff must present substantial evidence for every fact essential to liability.” Id. at 338. To recover under FELA, Palmer had to prove: 1) he was injured in the scope of his employment; 2) his employment was in furtherance of Union Pacific’s business; 3) Union Pacific was negligent; and 4) Union Pacific’s negligence played some part in causing his injury. Burrus v. Norfolk & W. Ry. Co., 977 S.W.2d 39, 43 (Mo.App. E.D.1998). Union Pacific does not dispute that Palmer was injured in the scope of his employment or that his employment was in furtherance of its business; rather, Union Pacific argues that Palmer failed to make a submissible case on any of the theories of negligence submitted to the jury.

The verdict director instructed the jury to find in favor of Palmer if it believed that Union Pacific or any of its employees had negligently caused Palmer’s injuries by: 1) failing to keep a careful lookout; 2) failing to properly signal the turn; 3) failing to maintain safe control of the vehicle; 4) failing to provide reasonably safe methods of work; or 5) failing to provide reasonably adequate help. The jury was further instructed that it had to find that Union Pacific or its employees were negligent in any one or more of these respects, and that such negligence resulted, in whole or in part, in injury to Palmer. Thus, our review is to determine whether Palmer presented substantial evidence of any of these submitted theories. Coggins, 37 S.W.3d at 338-39.

“An injured railroad employee can recover all of his or her damages from the employer if the employer’s negligence caused any part of the employee’s injury.” Ward v. Kansas City S. Ry., 157 S.W.3d 696, 698 (Mo.App. W.D.2004); see also 45 U.S.C. Section 51 (railroad employer liable to employee injured while working if injury resulted in whole or in part from negligence of employer or any of its officers, agents, or employees).

Under FELA, “the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). Our determination is “narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.” Id. at 506-07, 77 S.Ct. 443. The employee’s burden is met when he adduces proof, even though entirely circumstantial, from which a jury may reasonably make this inference. Id. at 508, 77 S.Ct. 443.

We conclude Palmer presented substantial evidence that Union Pacific’s employee Simpson was negligent in failing to keep a careful lookout and maintain safe control of the vehicle. Viewing the evidence and all reasonable inferences most favorably to Palmer, the evidence reveals that after the Union Pacific trucks missed their initial turn, they made a u-turn, and were impeding the flow of traffic on an interstate highway by traveling 20 miles per hour under the posted 55-miles-per-hour speed limit in their attempt to locate their turnoff a second time. Simpson then slowed his truck, with no left turn signal activated, to 2-3 miles per hour, which further backed up the vehicles following him. Simpson’s truck was at a dead stop prior to his attempt to turn, with three vehicles lined up behind him on the highway. After an oncoming car traveled past him in the northbound lane of Highway 79, Simpson paused, then began to turn left. Enough time had elapsed for this oncoming car to have traveled past all four vehicles before Warren began his attempt to pass. Prior to striking Simpson’s truck, Warren’s car traveled in the northbound lane past the Aramark truck and the two rear Union Pacific vehicles. Yet, Simpson testified that he was unaware of Warren’s car attempting to pass the Union Pacific vehicles until he heard its horn blowing.In light of the fact that Simpson had already been impeding traffic for a considerable distance on an interstate highway pri- or to attempting his unannounced left turn, he would be cognizant of the need to ensure no vehicle was attempting to pass. A jury could reasonably infer that had Simpson checked his rear view mirror pri- or to attempting the left turn, he would have seen Warren’s car passing the three vehicles, and could have remained stationary or braked, instead of accelerating after hearing the horn. Rogers, 352 U.S. at 506-08, 77 S.Ct. 443 (employer liable if employer negligence played even slightest part in producing injury; burden met, even if proof is entirely circumstantial, where jury can reasonably infer employer negligence played any part).

We also conclude Palmer presented substantial evidence that Union Pacific was negligent in failing to provide reasonably safe methods of work and in failing to provide reasonably adequate help. To make a submissible FELA case under this theory, Palmer had to show that 1) Union Pacific had a duty to provide a reasonably safe work place, 2) Union Pacific’s lack of care played some part, however small, in producing his injury, and 3) the injury was reasonably foreseeable. Ramsey v. Burlington N. and Santa Fe Ry. Co., 130 S.W.3d 646, 651 (Mo.App. E.D.2004). FELA places upon a railroad employer the duty to provide its employees with a reasonably safe place to work. Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). The evidence showed that Union Pacific failed to supply its employee drivers with directions to their assigned job location, and the conclusion reasonably may be drawn that this failure played a part in Palmer’s injury.

“The railroad’s knowledge or anticipation of the possibility that a general danger is present and that its standard of conduct is inadequate to protect its employees from that harm is all that is required to satisfy [the element of foreseeability].” Ramsey, 130 S.W.3d at 651. Here, there was sufficient evidence under FELA’s requirements to show Union Pacific knew or should have known that a failure to supply the caravan of Union Pacific drivers with directions to their assigned job location could adversely affect their ability to find their turn-off, causing the drivers to get lost, miss their turn, impede traffic, search for an unidentified road, and make sudden stops or turns. It is reasonable to infer that had Union Pacific provided its drivers with a map or directions to the job site during its safety and job briefings on the morning of July 28, Simpson would not have been impeding traffic by traveling 20 miles per hour below the posted speed limit before identifying the road where he attempted his turn. We conclude Union Pacific had knowledge that a general danger of a vehicle accident was present and that its standard of conduct in failing to provide directions was inadequate to protect its employees from that harm. Id. It is the possibility of injury from a work place condition that must be reasonably foreseeable, not knowledge of the precise injury and location. Id. at 652.

“Only where there is a complete absence of probative facts to support the jury’s verdict does reversible error result.” Stewart v. Alton & S. Ry. Co., 849 S.W.2d 119, 124 (Mo.App. E.D.1993). The case was submissible and Union Pacific’s Motion for JNOV was properly denied. Cog-gins, 37 S.W.3d at 338-39.

Point denied.

Point II

Union Pacific claims the trial court abused its discretion in denying the railroad’s Motion for New Trial because Union Pacific had the right to discuss the evidence of Warren’s negligence and to argue that Warren’s negligence was the sole cause of the accident. We disagree.

In a FELA action, an injured railroad employee can recover all of his damages from his employer if the employer’s negligence caused any part of the employee’s injury, regardless of whether the injury was also caused “in part” by the actions of a third party. Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 165-66, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003); Ward, 157 S.W.3d at 698. Given our determination in Point I that the jury could reasonably conclude that Union Pacific’s negligence played a part in Palmer’s injury, it does not matter that, from the evidence, the jury could reasonably attribute the result to negligence on behalf of Warren also. Rogers, 352 U.S. at 506-07, 77 S.Ct. 443 (if conclusion may be drawn that negligence of employer played “any part at all” in injury, case is made for jury even if evidence allows jury choice of other probabilities). Although the permissible scope of argument is broad, parties cannot urge a claim or defense not justified by the evidence adduced at trial. Hoehn v. Hampton, 483 S.W.2d 403, 408 (Mo.App.1972).

When Union Pacific moved for a directed verdict at the close of plaintiffs evidence, the trial court ruled that Palmer had adduced sufficient evidence from which the jury could infer negligence on the behalf of Union Pacific, thus precluding a sole cause defense. Because the evidence adduced at trial established Union Pacific was negligent, and that its negligence was a cause in Palmer’s injury, Union Pacific did not have the right to discuss Warren’s negligence or to argue that Warren’s negligence was the sole cause of the accident. Ayers, 538 U.S. at 161, 123 S.Ct. 1210 (because statute does not authorize apportionment of responsibility between railroad and potentially liable tortfeasors, whether railroad’s negligence was immediate reason for employee’s injury is irrelevant); Ward, 157 S.W.3d at 698; Hoehn, 483 S.W.2d at 408. Regardless, in closing, Union Pacific was able to argue, albeit unconvincingly in light of the jury’s verdict, that Union Pacific was not negligent and did not cause Palmer’s injuries. The trial court did not abuse its discretion in overruling Union Pacific’s Motion for New Trial. Burrows, 218 S.W.3d at 533 (standard of review).

Point denied.

Point III

Union Pacific claims the trial court erred in denying its Motion for Mistrial because Palmer’s cross-examination of Simpson regarding the details of his misdemeanor convictions exceeded the permissible scope of Section 491.050 RSMo 2000. “A mistrial is a drastic remedy.” Burrows, 218 S.W.3d at 535 (internal quotation and citation omitted). We review a trial court’s ruling on a motion for mistrial for abuse of discretion, and will reverse only where its ruling shocks the sense of justice, shows a lack of consideration, and is against the logic of the circumstances. Id. at 534-35.

Section 491.050 provides that prior convictions may be proven to affect a witness’s credibility in civil cases. Section 491.050 RSMo 2000. The statute further provides that proof of such convictions may be made by cross-examining the witness, and states that the witness must answer any question relevant to the conviction. Id.

Although generally, witnesses cannot be examined about details of prior crimes, cross-examination about details is permitted if the witness fails to disclose prior convictions and the inquiry is designed to elicit proof of an additional conviction. State v. Skelton, 887 S.W.2d 699, 703-04 (Mo.App. S.D.1994). The trial court has discretion to control the scope of this cross-examination and we will not interfere absent abuse. State v. Simmons, 825 S.W.2d 361, 364 (Mo.App. E.D.1992).

Here, Palmer was attempting to impeach Simpson’s credibility as a witness with his prior convictions by demonstrating that Simpson “selectively [chose] what truth to tell.” Simpson initially denied having been convicted of a misdemeanor, but when asked if he had pleaded guilty to first-degree family assault, Simpson indicated that he had forgotten the incident. When Palmer then tried to elicit how Simpson could have forgotten the incident, Union Pacific objected.

During a subsequent bench discussion, Palmer indicated that he wanted to elicit proof of an additional conviction. The trial court sustained Union Pacific’s objection, with respect to eliciting details of the crime. When Palmer resumed his cross-examination by asking Simpson if he had pleaded guilty to another offense of first-degree assault on a family member, Simpson denied that he had. After Simpson made this denial, it was within the trial court’s discretion to permit Palmer to test and challenge this statement. Simmons, 825 S.W.2d at 364. We find no abuse of discretion in the limited inquiry allowed by the trial court before it instructed Palmer to move on. Id. Likewise, we find the trial court’s denial of Union Pacific’s Motion for Mistrial was within its discretion. Burrows, 218 S.W.3d at 534-35.

Point denied.

Point TV

In its fourth point, Union Pacific claims it was entitled to a setoff of $25,000 allegedly paid to Palmer by a non-party to the action below. We disagree, and conclude that the trial court did not abuse its discretion in denying Union Pacific’s motion for an order amending the judgment to include a setoff reflecting Palmer’s pretrial settlement with a third party. La-Rose, 154 S.W.3d at 370 (standard of review).

In support of its claim that it was entitled to a setoff for an alleged $25,000 settlement Palmer received from a non-party, Union Pacific directs us to four cases from other jurisdictions, in which the railroad employers were allowed a setoff, or “pro tanto credit” for settlements received by the plaintiffs from other parties. Schadel v. Iowa Interstate R.R. Ltd., 381 F.3d 671 (7th Cir.2004); Benson v. CSX Transp., Inc., 274 Fed.Appx. 273 (4th Cir. 2008) (unpublished opinion); Hess v. Norfolk S. Ry. Co., 106 Ohio St.3d 389, 835 N.E.2d 679 (2005); and Downer v. CSX Transp., Inc.,256 Va. 590, 507 S.E.2d 612 (1998). Three of these cases, Schadel, Downer, and Benson, are immediately distinguishable from the case before us, because the setoff sought by the railroad employers was in connection to settlement recoveries from defendants who were actually named parties in the employees’ actions. Schadel, 381 F.3d at 673-74; Downer, 507 S.E.2d at 613; Benson, 274 Fed.Appx. at 274. Accordingly, they are inapposite to our analysis, even if we were to find their reasoning persuasive, which we do not.

Hess, the remaining case, involved settlement recoveries obtained from third parties — asbestos manufacturers that the injured employees had sued separately for injuries. Hess, 835 N.E.2d at 682. In Hess, an action alleging negligent exposure to asbestos, the railroad sought a setoff of damages the employees had recovered in their claims against the asbestos manufacturers. Id. at 681-82. Although it determined that the railroad employer was not entitled to a proportionate-share reduction of the judgment, the Court’s majority opinion held that neither 45 U.S.C. Section 55 nor the common law collateral-source rule prohibited the employer credit for amounts paid in settlement by a fellow tortfeasor and allowed the railroad a pro tanto credit for the settlements. Id. at 686-87, 689.

The flaw we perceive in Hess’s determination of the setoff issue is that the Court premised its analysis on the common law rule of apportionment, where a partial satisfaction received from one of multiple joint tortfeasors serves to diminish the liability of the nonsettling tortfeasor. Id. at 686. This premise, however, overlooks the U.S. Supreme Court’s rejection of the suggestion that FELA would permit damages to be apportioned among joint tort-feasors according to the degree of fault attributable to each. Ayers, 538 U.S. at 161-65, 123 S.Ct. 1210. We And significant, as did the Court in Ayers, that Congress, while expressly directing in FELA the apportionment of responsibility between employer and employee based on comparative fault, did not provide for such apportionment among potentially hable tortfeasors. Id. at 161, 123 S.Ct. 1210.

We find the dissent in Hess to be more persuasive in its analysis and application of federal law to the question presented. The Hess dissent would have affirmed the disallowance of the setoff, stating: “Recognition of a credit would exempt Norfolk from a portion of its liability to the appel-lees, in contradiction of the express language of the FELA.” Hess, 835 N.E.2d at 690.

Our independent analysis of Ayers leads us to the same conclusion reached by the dissent in Hess. In considering the railroad employer’s contention that the trial court erred in instructing the jury not to make a deduction from its damages awards for the contribution of non-railroad causes of the employees’ injuries, the U.S. Supreme Court held that FELA did not authorize apportionment of damages between railroad and nonrailroad causes. Ayers, 538 U.S. at 159-60, 123 S.Ct. 1210. “Nothing in the statutory text [of FELA] instructs that the amount of damages payable by a liable employer bears reduction when the negligence of a third party also contributed in part to the injury-in-suit.” Id. at 160, 123 S.Ct. 1210. Declining to create new law by requiring apportionment among potential tortfeasors, the U.S. Supreme Court determined that FELA’s express terms placed on the railroad employer the burden of seeking contribution from other tortfeasors. Id. at 141, 123 S.Ct. 1210.

We find no abuse of discretion in the trial court’s denial of Union Pacific’s Motion to Amend. LaRose, 154 S.W.3d at 370. Given that an injured railroad employee can recover all of his damages from his railroad employer if his employer’s negligence caused any part of the employee’s injury, we find that an allowance of setoff for settlement recoveries received on behalf of a nonrailroad tortfeasor is inconsistent with FELA’s intent, contradictory to the act’s statutory language, and not in accordance with U.S. Supreme Court precedent. Ayers, 538 U.S. at 159-60, 123 S.Ct. 1210; Ward, 157 S.W.3d at 697.

Point denied.

Conclusion

The judgment of the trial court is affirmed.

KURT S. ODENWALD, P.J., and GEORGE W. DRAPER, III, J., concur.

      . The federal common law collateral source rule permits a plaintiff to seek full recovery from a tortfeasor even if the plaintiff has received compensation for his loss, in whole or in part, from an independent source. Green v. Denver & Rio Grande W. R.R. Co., 59 F.3d 1029, 1032 (10th Cir.1995); CSX Transp., Inc. v. Gardner, 874 N.E.2d 357, 365 (Ind.Ct.App.2007). 45 U.S.C. Section 55 basically codifies the collateral source rule, while simultaneously broadening it to allow setoff for sums the railroad tortfeasor contributed or paid to “any insurance, relief benefit, or indemnity'’ that may have been paid to the injured employee on account of his injury. 45 U.S.C. Section 55; Gardner, 874 N.E.2d at 366. “Thus, the [collateral source] rule focuses not on the aggregate amount the plaintiff receives, but on the amount the tortfeasor pays.” Id. at 365.


source: Caselaw Access Project

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    FIRST NATIONAL BANK OF ST. LOUIS, Appellant, v. RICON, INC., Richard A. Davis, and Connie Davis, Respondents.
    No. ED 92562.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 30, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 4, 2010.
    Application for Transfer Denied June 29, 2010.

      Elizabeth C. Carver, St. Louis, MO, for appellant.
    Paul N. Rechenberg, Chesterfield, MO, for respondents.
   GARY M. GAERTNER, JR., Judge.

Introduction

First National Bank of St. Louis (First National) appeals from trial court’s entry of judgment in favor of Richard A. Davis (Davis) on Davis’s counterclaim for slander of title; from the trial court’s denial of First National’s Renewed Motion of Plaintiff/Counterclaim Defendant First National Bank of St. Louis for Judgment Notwithstanding the Verdict on the Counterclaim, or in the Alternative, for a New Trial, or in the Alternative, for Remittitur (Post-trial Motion); and from the trial court’s award of attorney’s fees to Davis. We reverse the trial court’s entry of judgment as to Davis’s slander-of-title counterclaim because we conclude that the trial court erred in granting partial summary judgment to Davis as to liability only on his slander-of-title counterclaim, and we remand for further proceedings consistent with this opinion.

Factual and Procedural Background

On August 29, 2006, First National initiated an action against Davis, Ricon, Inc. (Ricon), and Connie Davis (Davis, Ricon, and Connie Davis collectively referred to as Defendants). First National’s Amended Petition, filed September 18, 2006, contained three counts: 1) breach of contract; 2) replevin; and 3) unjust enrichment.

As pertinent, First National alleged in its breach-of-contract count that on January 24, 2000, Ricon executed, and First National accepted, a promissory note (First Promissory Note) whereby Ricon promised to pay First National the principal sum of $315,000. This First Promissory Note was secured by a Security Agreement, dated August 24, 1995, as amended on December 15, 1999 (Security Agreement) and a personal guaranty (Personal Guaranty), dated December 15, 1999, signed by Davis and Connie Davis. The Personal Guaranty guaranteed prompt payment of any and all indebtedness or other obligations, gave to First National “a general lien and right of setoff upon and to every deposit account with [First National],” and pledged to First National “all moneys, notes, bonds, stocks or other securities, of every kind, as well as any other property, now or hereafter delivered to or in the possession of [First National][.]” First National also alleged that on September 15, 2005, Ricon executed, and First National accepted, a promissory note for a revolving line of credit with a principal amount of $500,000, secured by a Commercial Security Agreement dated December 15, 2000, a Life Insurance Assignment dated August 15, 2001, and Commercial Guaranties dated August 16, 2005.

First National asserted that Defendants breached the terms of the loan documents for these two loans by moving their deposit accounts from First National. First National further asserted that “[u]pon information and belief, Defendants have used proceeds from the sale of First National’s collateral to purchase and/or finance other assets. First National believes that said assets include real property held by Richard A. Davis and Connie F. Davis.” In its prayer for relief for this count, First National asked “for a judgment against Defendants ‘in the amount of $343,878.73, plus interest at the highest contract rate allowed by law, for its attorney fees, legal costs and repossession costs, for the costs of court, and for such further relief as the Court deems just and proper.’ ”

In its replevin count, First National realleged and incorporated the allegations contained in its breach-of-eontract count, and asserted that the Defendants had obtained and remained the current holders of legal title of the collateral pledged as security for the two loans. In its prayer for this count, First National asked for immediate possession of the collateral or an order allowing the collateral to be secured, the value of the collateral if not delivered, damages for retention of the collateral, and such other and further relief as deemed just and proper.

In its unjust-enrichment count, First National realleged and incorporated the allegations contained in its. first two counts, and asserted that Defendants had been unjustly enriched at First National’s expense. First National requested a judgment in the principal amount of $343,878.73 plus accrued interest, attorney’s fees, costs, and such other and further relief as deemed just and proper.

On September 18, 2006, First National recorded two separate Notices of Lis Pen-dens (Notices) with the St. Louis County Recorder of Deeds, one containing the legal description of a personal residence titled in Davis’s name and the other containing the legal description of a personal residence titled jointly in Davis’s and Connie Davis’s names.

Thereafter, Davis filed his First Amended Counterclaim (Counterclaim) against First National, containing three counts: 1) negligence; 2) slander of title; and 3) abuse of process. In his Counterclaim, Davis alleged, among other things, that First National filed Notices on personal residences belonging to him and Connie Davis, that neither of these personal residences had been pledged to First National as collateral for any loans, and that First National’s cause of action had nothing to do with the personal residences and did not affect or impact the title to the residences. Davis further alleged that in August 2007, he applied to refinance mortgages on both personal residences, and he claimed the refinancing would save him thousands of dollars over the term of the new loans. Davis also alleged that he received a conditional commitment to refinance the loans on the residences, but that his application was rejected by the lender when it discovered the two Notices recorded by First National. He alleged that First National refused his demand to release the Notices and that he was consequently unable to refinance his mortgages.

Davis moved for summary judgment (Motion for Summary Judgment), submitting his Statement of Uncontroverted Material Facts in Support of Motion for Judgment (Statement of Uncontroverted Material Facts) with exhibits and a Memorandum of Law in Support of Motion for Summary Judgment. In his Motion for Summary Judgment, Davis argued that First National’s filing of the two Notices on the personal residences constituted actionable slander of title because First National’s action was an attempt to collect money damages for an alleged breach of the two promissory notes, and the two personal residences were never pledged as security to First National as collateral for any First National loan. Davis argued that he suffered pecuniary loss as a direct result of First National’s improper filing of these Notices because another lender refused his application to refinance the mortgage loans on the personal residences due to the pending Notices.

First National filed its responses to Davis’s Motion for Summary Judgment (Response). In its Response, First National admitted the following facts, as pertinent to the issues on appeal. Davis and Connie Davis own the house and real property located at 2232 Edge Wood Man- or Lane in Ballwin, Missouri, a property that is Connie Davis’s personal residence (the Ballwin residence). Davis and Connie Davis purchased the Ballwin residence in 1996. Davis purchased his personal residence (the Chesterfield residence) on or about August 31, 2005. When Davis purchased the Chesterfield residence, he borrowed 100% of the purchase price from a secured lender that was different from First National. The first loan issued by First National to Ricon that is the subject of the underlying litigation was made on or about January 24, 2000. The second loan issued by First National to Ricon that is the subject of the underlying litigation was made on or about September 15, 2005. Neither the Chesterfield residence nor the Ballwin residence was ever pledged as collateral to First National for either of these two loans. First National filed and/or recorded a Notice of Lis Pen-dens with respect to both residences on or about September 18, 2006. Davis initiated an attempt to refinance the mortgage loans on both residences in August of 2007.

In his Statement of Uncontroverted Material Facts, Davis alleged in Paragraph 15 that one of the reasons First National filed the Notices was “to preserve an asset to be available in the event [First National] wins this litigation.” In support of this fact, Davis submitted a letter, dated August 24, 2007, his counsel received from First National’s counsel, which stated, in relevant part:

We are in receipt of your correspondence dated August 17, 2007, and in response regretfully advise you that the Bank declines your request to release the notice lis pendens filed against your clients’ property.
As you know, we recorded the notice lis pendens with the reasonable belief that the collateral securing the loans in issue were used by the Davises to make payments on, purchase and/or finance other assets such as the real property against which the notices were recorded. This obviously encompasses the Davises’ residences to the extent that any of the Bank’s collateral were used by them to make payments toward,- or on, their real property. To that end, your statement that our notice lis pendens was filed to the Davises’ real property to preserve the Bank’s right to dispose of or have a lien against the same is quite correct, but clearly was not the only reason the notice was filed. Aside from the foregoing, I would respectfully remind you that the Davises are being sued in their individual capacities as well on the basis of the personal guarantees they executed in connection with their loans with the Bank.

In his Memorandum of Law in Support of Motion for Summary Judgment, Davis argued that the Notices:

were maliciously published as the Bank knew the underlying lawsuit had nothing to do with the real estate. Bank specifically plead[ed] that the collateral pledged by the defendants was personal property, not real property. Also Bank’s counsel admitted by letter that the purpose of filing the notice of lis pendens was to ensure there would be an asset available for collection in the event Bank w[as] successful at litigating this case.

In its Response, First National responded to Paragraph 15 by stating that the paragraph alleged a written document and by objecting that Davis mischaracterized the writing’s contents. First National further objected that Paragraph 15 contained inadmissible hearsay and was not properly tendered. First National then denied the facts alleged in Paragraph 15, stating that preservation of the asset was only one among several reasons given for the recording of the Notices. In support of this response, First National cited the August 24, 2007 letter, and quoted the language contained in the second paragraph set out above.

Also in its Response, First National alleged the following pertinent facts in its Statement of Undisputed Material Facts on its Cross-Motion for Summary Judgment on the Amended Petition. Defendants maintained at least one company account with U.S. Bank from which payroll transactions were made. Funds were disbursed and withdrawn from the U.S. Bank payroll account to Davis’s personal checking accounts at U.S. Bank. Mortgage payments were made from Davis’s personal account to two separate financial companies nearly every month after the personal accounts were opened.

The cause was called for hearing on May 19, 2008, on Davis’s Motion for Summary Judgment, and on First National’s motions for summary judgment and for sanctions. The motions were heard and submitted.

On June 17, 2008, the trial court entered its Order and Interlocutory Judgment Granting Partial Summary Judgment as to Defendant’s Richard Davis’s Counterclaim (June 17 Judgment). In its June 17 Judgment, the trial court denied First National’s motions and entered interlocutory judgment in favor of Davis and against First National on Davis’s counterclaim as to liability only, leaving damages to be determined at trial. The trial court specifically found the filing of the Notices by First National bore no reasonable relation to its action for breach of contract, replev-in, and unjust enrichment, noting that the Amended Petition alleged Davis breached the terms of the two promissory notes that were not secured by either of the residences and stating that such real estate bore “no relation to the action, other than it is an asset owned by [Davis] which may be subject to attachment should [First National] obtain judgment against [Davis].”

The trial court later entered an order amending the June 17 Judgment to clarify that the interlocutory judgment was entered for Davis and against First National on the slander-of-title count of Davis’s counterclaim. The cause thereafter proceeded to a jury trial. At the close of all the evidence, only two claims were submitted to the jury: First National’s breach-of-contract claim, and damages on Davis’s slander-of-title claim.

Following trial, the jury found in favor of First National on its breach-of-contract claim and assessed damages at $376,856.67. The jury specified that First National not be allowed to recover attorney’s fees. The jury returned a verdict on Davis’s slander-of-title claim against First National, awarding $252,000 in compensatory damages and finding that First National was liable for punitive damages. In determining that First National was liable for punitive damages, the jury was instructed that it could award Davis an additional amount as punitive damages if it believed First National’s conduct was outrageous because of First National’s evil motive or reckless indifference to the rights of others. After the verdicts were returned, the punitive damages phase of the trial commenced to assess punitive damages against First National on Davis’s slander-of-title claim. The jury awarded Davis $500,000 in punitive damages. On January 16, 2009, the trial court entered an Order and Judgment that, inter aha, awarded attorney’s fees in the amount of $31,035.97 to Davis.

Thereafter, First National filed its Post-trial Motion. As relevant to the issues on appeal, First National argued that the trial court erred in its grant of summary judgment in favor of Davis as to liability because Davis failed to demonstrate that no genuine issue existed as to whether the Notices made a false statement, whether First National acted with malice, whether Davis suffered a pecuniary loss or injury from the publication of the Notices, and whether the Notices had a reasonable relation to First National’s legal action against Davis. First National also argued that the trial court erred in submitting Davis’s punitive-damage claim because he did not introduce clear and convincing evidence for the jury to reasonably find that First National’s conduct was outrageous due to evil motive or reckless indifference to the rights of others.

On February 17, 2009, First National filed its Motion of Plaintifi/Counterclaim Defendant First National Bank of St. Louis to Alter, Amend, or Modify the Judgment (Motion to Amend), requesting the court to amend the trial court’s January 16, 2009 Judgment to, among other things, deny the award of attorney’s fees to Davis. On April 16, 2009, the trial court denied First National’s Post-trial Motion and Motion to Amend. This appeal follows.

Standard of Review

We review a grant of summary judgment de novo. Bechtle v. Adbar Co., L.C., 14 S.W.3d 725, 728 (Mo.App. E.D.2000). We affirm where the moving party establishes the absence of any genuine issue of material fact and its right to judgment as a matter of law. Id.

Points on Appeal

In its first point, First National claims the trial court erred in granting summary judgment to Richard Davis as to liability on his slander-of-title claim and in subsequently entering judgment in his favor because: a) the recording of the Notices was absolutely privileged in that a reasonable relation existed between the notices and the bank’s lawsuit; and b) even if no reasonable relation existed as a matter of law, the court applied the wrong legal standard in that it implicitly held the lack of a reasonable relation rendered the bank liable per se for slander of title.

In its second point, First National claims the trial court erred in granting summary judgment to Davis as to liability on his counterclaim and in subsequently entering judgment in his favor because Davis did not establish the absence of a genuine issue of material fact or the right to judgment as a matter of law in that: a) he offered no evidence that the notices contained false words; b) even if his evidence would support a reasonable inference that the notices were published with malice, that issue is one of fact for the jury; and c) the only evidence he presented of pecuniary loss resulting from the publication was inadmissible because it was unauthenticated and/or contained hearsay.

In its third point, First National claims the trial court plainly and clearly erred in submitting Davis’s claim for punitive damages and in entering judgment on the jury’s verdict, because he did not show by clear and convincing evidence that First National acted out of an evil motive or ■with reckless indifference to his rights in connection with the recording of the notices; further, the submission affected First National’s substantive rights and resulted in a miscarriage of justice.

In its fourth point, First National claims the trial court erred in awarding Richard Davis attorney’s fees incurred in the prosecution of his counterclaim because the “balancing the benefits” exception to the American Rule with respect to attorney’s fees did not apply in that: a) Davis’s counterclaim was in law, not in equity; b) no “very unusual circumstances” were present in this case; c) Davis’s pursuit of his counterclaim benefited only himself; and d) he was more than adequately compensated by the damage awards.

Discussion

To support an action for slander of title, there must be false words that are maliciously published, causing the plaintiff to suffer a pecuniary loss or injury. V.J.M. Assoc., Inc. v. Gilmore, 44 S.W.3d 440, 441 (Mo.App. E.D.2001). Because our determination as to the second premise of Point I requires us to undertake the analysis necessary to determine First National’s claim in Point II, we shall address both of these points together.

Section 527.260 RSMo 2000 provides for the filing of lis pendens “[i]n any civil action, based on any equitable right, claim or lien, affecting or designed to affect real estatef.]” Filing a lis pendens “provides a record notice to potential purchasers of a pending suit which may affect title to property and its purpose is to preserve rights pending the outcome of litigation.” Kopp v. Franks, 792 S.W.2d 413, 424 (Mo.App. S.D.1990).

Where lis pendens notices have a reasonable relation to the action filed, absolute privilege attaches to their recordation. Houska v. Frederick, 447 S.W.2d 514, 519 (Mo.1969). Parties have an absolute privilege to disparage another’s property interest when participating in a judicial proceeding if the disparagement has some relation to the judicial proceeding. Id. at 518. However, the filing of such notices can constitute slander of title where the filings are instituted for a purpose other than securing adjudication of a plaintiffs claim and without reasonable belief in a valid claim. Id.

In the breach-of-eontract count of its Amended Petition, First National alleged that Davis breached the terms of two promissory notes held by First National by moving deposit accounts from First National. The Amended Petition’s only allegation that could be viewed as addressing the personal residences was its averment that “[ujpon information and belief, Defendants have used proceeds from the sale of First National’s collateral to purchase and/or finance other assets. First National believes said assets include real property held by Richard A. Davis and Connie F. Davis.” The Amended Petition failed to identify this “real property” by any more definite description, legal or otherwise.

As previously stated, the following facts were undisputed. After it initiated this action for breach of contract, replevin, and unjust enrichment, First National filed and/or recorded Notices of Lis Pendens with respect to both residences owned by Davis. Neither of these residences was pledged as collateral to First National for either of the two loans that were the subject of the underlying litigation. The Notices stated that First National had filed “a suit alleging as a basis in part for the suit, the Defendants’ improper use of proceeds from the sale of First National’s collateral to purchase and/or finance other assets. First National contends such assets include the [described real property.]”

Significantly, First National initiated its legal action seeking to recover monies due under certain promissory notes executed by Davis and others. All three of First National’s counts were based on legal rights granted to it by the terms of the loan documents executed by the parties and all three counts prayed for a money judgment based on Defendants’ alleged breach of those terms. The various guaranty documents signed by Defendants enumerated the collateral pledged to First National; significantly, the two residences were not among the collateral pledged as security for either of the loans. Any judgment obtained by First National in the proceeding it filed against Davis would have had no more effect upon the two residences than upon any other real property owned by Davis. Consequently, at the time of the filing, there existed no equitable right, claim or lien affecting or designed to affect the real estate described in the Notices filed by First National, and therefore, the Notices were not authorized by Section 527.260. The Notices had no reasonable relation to the action filed; thus, absolute privilege did not attach to their recordation. Houska, 447 S.W.2d at 519.

Moreover, because the use of lis pendens in this case was not authorized by Section 527.260, we determine that the wrongful filing of the invalid Notices is sufficient to meet the “false words” requirement. V.J.M. Assoc., Inc., 44 S.W.3d at 441. First National’s Notices falsely informed potential purchasers that its pending suit would affect title to the residences when the bank had no basis for an equitable right, claim or lien. “It is essential that the litigation to which the lis pendens refers shall result in a judgment or decree affecting the property described therein, and within the issues made.” Space Plan. Arch., Inc. v. Frontier Town-Mo., 107 S.W.3d 398, 407 (Mo.App. S.D. 2003) (emphasis in original, internal quotations and citation omitted).

Having concluded that First National had no equitable right, claim or lien affecting or designed to affect the two residences, that no reasonable relation existed as a matter of law, and that the wrongful filing met the necessary falsity element, we now address First National’s argument that the court applied the wrong legal standard in that it “implicitly held that the lack of a reasonable relation rendered the bank liable per se for slander of title.”

Accordingly, we must determine whether Davis established the absence of any genuine issue of material fact as to whether the Notices were maliciously published and whether their filing caused pecuniary loss or injury to Davis. Tongay v. Franklin County Mercantile Bank, 735 S.W.2d 766, 770 (Mo.App. E.D.1987). We consider first the issue of whether Davis met his burden of persuasion as to the pecuniary loss or injury element.

To prevail on his slander of title action, Davis is required to demonstrate he suffered pecuniary loss or injury due to First National’s false statement. Bechtle, 14 S.W.3d at 728. In his Motion for Summary Judgment, Davis alleged that he sought to refinance mortgage loans on the two residences, but that his proposed lender refused to refinance the loans due to the pending Notices affecting the properties. Davis further alleged that, as a direct result of First National’s filing of the Notices, he suffered “pecuniary loss by not being able to lower his monthly mortgage payments and by incurring attorney’s fees to remove the cloud on his title.”

In his Statement of Uncontroverted Material Facts, Davis stated, among other things, that he attempted to refinance these loans sometime in August 2007; his proposed lender approved his loan applications pending a title check on the properties; his proposed lender thereafter discovered the Notices and denied his applications; and Davis was unable to refinance the mortgage loans on the properties. In support of his Statement of Uncontroverted Material Facts, Davis submitted his affidavit, stating that he had personal knowledge of these facts and additionally stating that had his refinancing been approved, he “would have been able to save hundreds of dollars each month based on a lower home mortgage interest rate on [the residences’ loans] and would have been able to save thousands of dollars over the course of the loans.” Davis also submitted a letter received from the loan consultant of his proposed lender, which indicated that the refinance originally approved would have reduced his monthly payment by approximately $700, but that the refinance could not proceed until the Notices were satisfied.

In response to Davis’s Statement of Uncontroverted Facts, First National admitted that Davis attempted to refinance the mortgage loans on the residences sometime in August of 2007. First National denied, and objected to as inadmissible hearsay, Davis’s statements that his proposed lender approved his loan applications pending a title check on the properties; his proposed lender thereafter discovered the Notices and denied his applications; and Davis was unable to refinance the mortgage loans on the properties. However, First National did not submit evidentiary support for these denials.

The filing of a lis pendens constitutes a cloud on title. Don Roth Dev. Co., Inc. v. Mo. Hwy. & Transp. Comm’n, 668 S.W.2d 177, 179 (Mo.App. E.D.1984). In his Motion for Summary Judgment and Statement of Uncontroverted Material Facts, Davis claimed he suffered pecuniary loss as a result of First National’s filing of the Notices concerning his residences by not being able to lower his monthly mortgage payments and by incurring attorney’s fees to remove the cloud on his titles. Davis submitted his affidavit to support his claim of pecuniary loss. Facts that are set forth by affidavit in support of a party’s motion for summary judgment are taken as true unless contradicted by the non-moving party’s response to the motion. Pipefitters Health & Welfare Trust v. Waldo R. Inc., 760 S.W.2d 196, 198 (Mo.App. E.D.1988).

Although First National denied Davis’s statements and objected to them on hearsay grounds, it failed to counter Davis’s statements with evidence demonstrating a genuine issue of material fact as to Davis’s claim of pecuniary loss. “When a motion for summary judgment is supported by affidavit, a party resisting the motion cannot rely solely upon his pleadings or argue that evidence presented at trial will disclose material issues of fact. Rather the resisting party must come forward with affidavits, depositions or other evidence demonstrating a genuine issue of material fact.” Id. Even if we were to conclude that Davis’s affidavit contained some statements of fact not based on personal knowledge, the affidavit contained certain uncontradicted statements concerning his pecuniary loss that were based on his personal knowledge, including his incurring attorney’s fees to remove the cloud on his titles, which are admissible. These admissible statements constitute a sufficient basis to establish pecuniary loss or injury. Scott v. Ranch Roy-L, Inc., 182 S.W.3d 627, 635-36 (Mo.App. E.D.2005).

Having concluded that Davis established his right to judgment as to the false words and pecuniary loss or injury elements, we now turn our attention to the malicious publication prong of a slander-of-title claim. Proof of falsity, alone, is not proof of malice. Bechtle, 14 S.W.3d at 728. To infer the existence of malice, Davis’s evidence must support a reasonable inference that First National’s Notices were filed not only without legal justification or excuse, but also were not innocently or ignorantly made. Id. at 729. “Such inference may rest on a foundation of circumstantial evidence and proof of a lack of probable cause would support an inference that the representation was not innocently made out of stupidity or ignorance but was known to be false.” Id.

However, whether a defendant’s actions were actuated by malice is a jury question “[w]here there is sufficient evidence or where there may be a fair difference of opinion on the issue of malicef.]” Id. Consequently, we must determine if, viewing the record most favorably to First National, Davis established the absence of any genuine issue of material fact as to whether the bank instituted the filings for a purpose other than securing adjudication of its claim and without a reasonable belief in a valid claim. Bechtle, 14 S.W.3d at 728-29; Jones, 690 S.W.2d at 167; Houska, 447 S.W.2d at 519.

Davis’s Statement of Uncontroverted Material Facts asserted that “One of the reasons Bank filed the notices of lis pen-dens was to preserve an asset to be available in the event bank wins this litigation.” In Davis’s Memorandum of Law in Support of Motion for Summary Judgment, Davis, citing First National’s letter, dated August 24, 2007, maintained that “Given the motivation of the Bank in filing the two notices of lis pendens, the Court should find the malice necessary for a cause of action for slander of title.”

First National, also citing to their August 24, 2007 letter, responded to this assertion by stating that “the preservation of the asset was only one among several reasons given for the recording of the notice of lis pendens, stating:

As you know, we recorded the notice lis pendens with the reasonable belief that the collateral securing the loans in issue were used by the Davises to make payments on, purchase and/or finance other assets such as the real property against which the notices were recorded. This obviously encompasses the Davises’ residence to the extent that any of the Bank’s collateral were used by them to make payments toward, or on, their real property.”

Our determination here is guided by Bechtle, a case procedurally on point with the instant case. As here, the defendant in Bechtle appealed the trial court’s entry of summary judgment as to liability only on Bechtle’s claim for slander of title. Bechtle, 14 S.W.3d at 726. Bechtle and the defendant had executed a written agreement for the purchase of an office building. Id. at 727. The agreement provided that Bechtle could terminate the contract if, among other things, he was unable to acquire what he considered to be a satisfactory replacement property. Id. Bechtle exercised his termination right, timely notifying the defendant in writing. Id.

Thereafter, one of the defendant’s managing partners recorded a notice concerning the real property that stated the defendant had the right to acquire the property. Id. When the defendant refused Bechtle’s subsequent request to withdraw and release this notice, Bechtle filed a petition alleging that the filing slandered his title. Id.

In support of his motion for summary judgment, Bechtle attached a portion of a deposition of the managing partner who filed the notice. Id. at 728. In this excerpt, the managing partner stated that the defendant recorded the notice, even though Bechtle had previously notified it that he was terminating the purchase contract, because “if we can’t get the property then no one is going to get it for now.” Id. In response to Bechtle’s argument that this statement proved malice, the defendant stated that it had a reasonable belief that it had a right to protect its interest in the property based on its belief that Bech-tle had breached the contract’s implied covenant of good faith. Id. at 728-29. This Court reversed the trial court’s grant of summary judgment, concluding that the trial court erred because a jury was entitled to make a determination as to whether the defendant’s recorded notice was filed maliciously. Id. at 728.

We likewise conclude in this case whether First National acted with malice is a jury question because, albeit a very close question, a fair difference of opinion can exist on the issue of malice before us. Id. at 729. Even though the lis pendens notice was false at the time of filing, a jury could find that First National did not act with malicious intent. Viewing the record in a light most favorably to First National, we conclude the contents of the August 24 letter could support a finding that First National believed, until a legal determination could be made, it had a reasonable right to protect its collateral, which Davis had used to make mortgage payments on the residences. Id. at 728-29. Although the evidence herein supports with certainty a contrary finding as to this belief, the evidence does not establish that First National acted with malice as a matter of law.

Accordingly, we conclude the trial court erred in entering summary judgment as to liability in favor of Davis on his slander-of-title claim, and thus we remand that claim for further proceedings to determine the issues of liability, actual and punitive damages, and attorney’s fees. In light of our disposition of First National’s first two points, we need not address First National’s other allegations.

Conclusion

The trial court’s entry of judgment in favor of Davis on his slander-of-title counterclaim is reversed. We remand that claim for further proceedings in aecor-dance with this opinion. In all other respects, the judgment is affirmed.

KURT S. ODENWALD, P.J. and GEORGE W. DRAPER III, J., concur.

      . Defendants Ricon, Inc. and Connie Davis are not parties to this appeal.

      . Moreover, replevin is an action to recover specific personal property and does not apply to real property. See Section 533.010. Although First National argues that its prayer for "such other and further relief” in its unjust enrichment claim would reasonably include an equitable lien on the residences, we disagree. The doctrine of equitable lien requires an express agreement, or conduct or dealings of the parties from which an intention may be implied, that the property concerned would be appropriated as security for a debt. See Wilkinson v. Tarwater, 393 S.W.2d 538, 542 (Mo. 1965). The doctrine applies only where there is no remedy provided by law and justice would suffer absent the equitable remedy. Id.

      . Malice in law imputes malice from "the mere intentional doing of a wrongful act to the injury of another without legal justification or excuse.” Proctor v. Stevens Employment Servs., Inc., 712 S.W.2d 684, 686 (Mo. banc 1986). MAI 16.01(1) defines malice in law as "intentionally doing a wrongful act without just cause or excuse.”