author: CLEMENS, Presiding Judge.

text:
    Arley Edward HULSEY, Appellant, v. Lois HULSEY, Respondent.
    No. 37579.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 26, 1977.

      Shaw, Howlett & Schwartz, Joseph How-lett, Clayton, for appellant.
    James F. Koester, Shifrin, Treiman, Bam-burg & Dempsey, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Dissolution of marriage.

The trial court decreed the parties’ marriage dissolved and neither appeals from that portion of the decree. The trial court awarded the wife monthly maintenance, granted her a $500 attorney fee, and awarded her certain real estate. The husband has appealed from these allowances and the order respecting only part of the marital property.

The husband first challenges the court’s granting the wife title to real estate. This property is what was left of ten acres acquired by the wife in 1964 before marriage by trading her inherited property. Under Section 452.330-2(2), RSMo.Supp. 1975, property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by bequest or devise is not marital property but separate property. Cain v. Cain, 536 S.W.2d 866[l-3] (Mo.App.1976). The trial court did not err in this ruling.

The husband also challenges the court’s allowing the wife $150 monthly maintenance. The wife’s income was $125 a week and her monthly expenses were $606 a month. Her physical condition made it impossible to get better paying employment and this evidence shows her need for maintenance. This court has held it is proper to consider the standard of living to which the spouse is accustomed and the probability of achieving the same through employment. In re Marriage of Powers, 527 S.W.2d 949[11] (Mo.App.1975). The husband’s point is denied.

The dispositive issue on appeal is the husband’s third Point Relied On: “The court erred in failing to distribute certain marital property and in failing to set aside to each party their personal property as required by statute.” The wife counters by contending neither the husband’s petition nor her crossbill sought a division of marital property. True, but Rule 55.33(b) declares: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” At trial the parties testified in detail, without objection, to numerous items of property each had brought into the marriage and what each party wanted the court to distribute. The court did award real estate to the wife but distributed no other property to either party.

Following Rule 55.33(b) we consider the parties’ pleading amended by consent, and rule that the issue of dividing all the parties’ property was before the trial court and the issue of its failure to do so is now properly before us on the husband’s appeal.

Section 452.330, YAMS, declares that in a dissolution of marriage: “ . . . the court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors . .” We hold the trial court erred by not so dividing all the parties’ property.

We affirm the trial court’s judgment on all issues therein ruled, but remand the cause to the trial court for an entry of a supplemental judgment dividing the parties’ property not divided by the original judgment.

DOWD and WEIER, JJ., concur.


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    Paul BROTHERTON, Plaintiff-Respondent, v. A. L. KISSINGER, Defendant-Appellant, and Bob Joyce, Bill Joyce and Nona Kissinger, Defendants.
    No. 10003.
    Missouri Court of Appeals, Springfield District.
    May 2, 1977.

      R. Jack Garrett, Clyde A. Butts, Garrett & Butts, West Plains, for plaintiff-respondent.
    Rich D. Moore, Moore & Brill, West Plains, for defendant-appellant.
    Before STONE, P. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Count I of plaintiff’s 4-count amended petition, prayed for dissolution of his alleged separate partnerships with defendants Joyce and defendant Kissinger, an accounting and judgment in a sum equal to his interests in the partnerships. Following a bench trial, where no opinion containing a statement of the grounds for the court’s decision was asked or given (Rule 73.01-1(b), V.A.M.R.), the court rendered judgment completely exonerating defendants Joyce and declaring defendant Kissinger liable to plaintiff for $3,833, plus 6% interest thereon from August 17, 1970. After one unsuccessful attempt at appealing, defendant Kissinger has again appealed.

In May 1968 the Joyces and plaintiff commenced a retail propane gas business at West Plains under the name of Crown Gas Company (hereinafter “old Crown”). Plaintiff’s most unsatisfactory testimony regarding his association with the Joyces was that “We didn’t have a contract or nothing,” or we “never did have a clear cut agreement.” Plaintiff’s “understanding” about the matter, which ordinarily is not competent evidence [Dill v. Poindexter Tile Company, 451 S.W.2d 365, 372 (Mo.App.1970)], was “that if the business paid for itself or something like that,” he would become a partner with a one-third interest in old Crown. In reality, the Joyces put up all the money, bought all the supplies and equipment, and plaintiff commenced selling and delivering gas for which he was paid $65 a week. Partnership income tax returns were filed for old Crown for 1968 and 1969 (final). These showed a percentage of partnership or beneficial interest of two-thirds in the Joyces and one-third in plaintiff. The undertaking lasted only until January 6, 1969, at which time, via various bills of sale, the Joyces without objection of plaintiff, sold all the assets of old Crown to defendant Kissinger. Plaintiff’s name did not appear on the bills of sale as either seller or buyer. Old Crown suffered an operating loss in 1968 and at the end of that period plaintiff’s capital account was reported to be “minus $295.85.” Briefly and in passing, the only Joyce to testify referred to the venture as a “partnership agreement” with “a third interest for each one of us.”

The final partnership return (1969) filed by old Crown reported, the “Total Sale Price” to be $43,000. Kissinger asserted this was the actual sale and purchase price agreed to by him and the Joyces. Joyce conceded that in computing the $43,000 sale price, no reduction was made in the value of accounts receivable, in the price of propane tanks, vehicles, inventory, equipment or “anything.” Documentary evidence (with the exception of only $503.71 in untraceable cash) evidenced that Kissinger paid $41,-848.59 in checks and cash directly to the Joyces. The balance of the $43,000 sale price, or $1,151.41, was paid by Kissinger by check to satisfy an outstanding account owed by old Crown. Plaintiff did not receive, either from the Joyces or from Kissinger, any of the money involved in the sale of old Crown.

Plaintiff and Joyce, in effect, agreed the $43,000 paid by Kissinger for old Crown represented a profit of $12,000 to $13,000 or a net of $4,000-plus to each of the three “partners.” However, since plaintiff got no money, explaining what became of plaintiff’s supposed profit posed somewhat of a problem. Predicated on Joyce’s and plaintiff’s additional asseveration that Kissinger said he would buy old Crown only if plaintiff continued in new Crown on the same basis he had shared with the Joyces, plaintiff and Joyce undertook to answer the question in the following fashions.

In his pretrial deposition, plaintiff testified that Kissinger actually paid only “something like” $38,000 of the agreed $43,-000 total sale price because his (plaintiff’s) $4,000-plus portion of the total profit was deducted from the $43,000 sale price so it could go into new Crown as his contributive share of a new partnership with Kissinger. However, when it became obvious that Kissinger had indeed paid $43,000 in checks and cash, and resorting to the plea that “they had me so tangled up” when his deposition was taken, the gist of plaintiff’s trial-testimony was that the $43,000 represented only the value of old Crown’s assets and the Joyces’ share of the profit, but did not include his individual share of the profits that was to be a credit to him on new Crown. In fine, plaintiff’s attempted explanation suggests a total agreed-to selling price approximating $47,000. When reminded of his testimony that the total $43,-000 sale price placed on old Crown did not include any discount of the assets, Joyce quixotically answered (in an effort to lend viability to plaintiff’s claim to a share of the profits) that plaintiff’s “interest had already been figured out of it.” Should this pronouncement somehow be credited with logic, it would amount to an agreement with plaintiff’s trial-testimony that the total sale price agreed to between the Joyces and Kissinger was really about $47,000— not $43,000 — and that the $4,000-plus not paid by Kissinger would somehow find its way into new Crown as an individual credit to plaintiff. Nevertheless, whatever amount of payment or credit it was that plaintiff claimed, that figure never found its way into the accounts or tax returns of either old Crown or new Crown; neither did the alleged payment or credit ever find a place in the individual tax returns filed by plaintiff.

As shown by old Crown’s final return, Kissinger insisted the actual sale price of that concern was $43,000 and that there was no agreement plaintiff was to have a starting credit of any amount in new Crown. While acknowledging plaintiff was to work in the new business and denying that this was a condition attached to the purchase, Kissinger stated that “our agreement was that I would furnish the capital to operate the business, to buy the business, and [plaintiff] was to draw a drawing out of the business for his work in the business. If and when the business ever paid for itself, then [plaintiff] would draw a third of the profits, and he would own a third of the business, and that was our agreement.” The new business never paid for itself and 16 months after its purchase, Kissinger was casting about for a buyer “Because the business wasn’t making a profit.” Kissinger offered to sell new Crown to plaintiff for “just what I’ve got invested in it,” but plaintiff declined because he had no money.

During new Crown’s existence (January 6, 1969, to August 17, 1970), plaintiff was paid a weekly salary of $75 which was increased to $100 “for about the last month or so.” To purchase old Crown and commence operating new Crown, Kissinger put up $26,500 of his own funds and $20,000 borrowed from the West Plains Bank, for which he pledged all the physical assets of new Crown as collateral. Sometime after this note was also signed by Kissinger et uxor, it was also signed by plaintiff and his wife. After paying $43,000 for old Crown and giving plaintiff a $500 “draw on future profits,” $3,000 remained in new Crown’s checking account for operating capital. Kissinger did not draw a salary from new Crown during its lifetime. Some attestation of the financial difficulties encountered by new Crown lies in the fact it borrowed from AMF Beaird, Inc., $1,050 in December 1969, and $2,491.50 in March 1970. The first note was signed “Crown Gas Company By A. L. Kissinger, Owner”; the second note was signed “Crown Gas Company By [plaintiff] Partner.” Plaintiff made no cash contribution to new Crown at any time. Kissinger made a sale of new Crown to Ozark Gas Company on August 17, 1970, for $49,663. The bill of sale to Ozark and the depreciation schedule contained in new Crown’s 1970 (final) partnership tax return, reveal that $10,057 in purchases of new equipment had been made by new Crown after it bought the business from old Crown in January 1969. This new equipment was contained in the sale to Ozark. The tax accountant who prepared the returns for both old and new Crown, stated that new Crown had experienced a 1969 operating loss of $2,780.88, a 1970 operating gain of $3,950.07, and a loss on the sale to Ozark in the sum of $1,672.87, making a net overall loss of $503.68. Plaintiff did not assume and did not pay any losses experienced by new Crown.

Upon receipt of $49,663 from Ozark, Kissinger paid the balance due on the promissory notes, supra, and discharged all obligations owed by new Crown to its outside creditors. Thereupon, Kissinger wrote a $26,000 check to himself which left new Crown with a bank balance of 47 cents. A further contribution by Kissinger to pay bank charges was necessary to close new Crown’s bank account.

,[1] The question at issue, as pleaded, tried and presented on appeal, is whether a partnership in praesenti existed between plaintiff and Kissinger which should be dissolved and an accounting ordered. The burden of proving the existence of the partnership rested with plaintiff and if he failed to satisfy this requirement he would not be entitled to the other relief sought. Bates v. Morris, 467 S.W.2d 286, 290[1] (Mo.App. 1971).

The Uniform Partnership Law defines partnership as “an association of two or more persons to carry on as co-owners a business for profit.” § 358.060-1, V.A.M.S. Judicially, the term is defined as “‘a contract of two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business and to divide the profits and bear the loss in certain proportions.’ . . . The contract creating the partnership need not be written, but may be expressed orally or implied from the acts and conduct of the parties. . . The primary consideration in determining the existence of a partnership is whether the parties intended to carry on as co-owners a business for profit.” Stuart v. Overland Medical Center, 510 S.W.2d 494, 497[l-3] (Mo.App.1974).

Other general principles to bear in mind are that merely “helping out” in a business is not sufficient proof of a partnership; that receipt by a person of a share of the profits does not raise an inference of partnership if the profits were received in payment as wages (§ 358.070(4)(b), V.A.M. S.); that the purported partners must have made a definite and specific agreement proved by cogent, clear and convincing evidence, or at least by a preponderance of the credible evidence; that an agreement to share the profits and the losses may be implied, but the sharing of profits is not conclusive of the existence of a partnership unless there be a corresponding right of management in each partner. Grissum v. Reesman, 505 S.W.2d 81, 85-86 (Mo.1974). The fact a business files or doesn’t file a partnership income tax return is not sufficient alone to prove or disprove the existence of a partnership. Grundel v. Bank of Craig, 515 S.W.2d 177, 180 (Mo.App.1974); Bates v. Morris, supra, 467 S.W.2d at 290[6]. Unlike statutory and judicial definitions, the tax definition of “partnership” includes any pool, group, syndicate, joint adventure or other unincorporated organization by means of or through which any financial operation or business is carried on and which, for income tax purposes, is not a corporation, trust or estate. 1 Tax Coordinator, Tax Research Institute of America, Inc., ¶ B-1001, p. 14,051.

On this appeal we are not concerned with plaintiff’s relationship to the Joyces during the existence of old Crown except as it may bear on his relationship with Kissinger. The best that can be said for plaintiff’s equivocal testimony was that he had an “understanding” that at some time in futu-ro he would become a partner with the Joyces when “the business paid for itself or something like that,” and that he would continue in new Crown with Kissinger under the same “understanding” or basis he had with the Joyces. In other words and in substance, plaintiff’s “understanding” with both the Joyces and with Kissinger was that he would become a partner in either old Crown or new Crown upon the happening of some future contingency, i. e., when the business paid for itself. It is undisputed that neither operating business paid for itself or had produced net profits sufficient to reimburse either the Joyces or Kissinger for their capital contributions.

There is a vast difference between a partnership in praesenti and a partnership to be formed in futuro. Persons who agree to become partners at some future time or upon the happening of some future contingency have only an executory contract, and they do not become partners until the condition precedent is met. Goodwin v. Winston, 241 Mo.App. 357, 363-365, 230 S.W.2d 793, 796 — 798[1—3] (1950); Thompson v. Thompson, 500 S.W.2d 203, 209[10] (Tex.Civ.App.1973); Arnold v. Caprielian, 437 S.W.2d 620, 625[3] (Tex.Civ.App.1969); Willis v. Harvey, 349 S.W.2d 323, 326[2] (Tex.Civ.App.1961); Higgins v. Higgins, 266 Ala. 514, 97 So.2d 812, 815 (1957); Southard v. Oil Equipment Corporation, 296 P.2d 780, 785[19] (Okl.1956); 68 C.J.S. Partnership § 11 a., pp. 418-419; 59 Am.Jur.2d, Partnership, § 29, at p. 953.

Not unlike the case at bar was Cearley v. Cearley, 331 S.W.2d 510, 512[1] (Tex.Civ. App.1960). In Cearley the agreement was that A would lease the store, buy all the necessary fixtures and equipment, and that when he recovered his costs, B would then become a partner and half owner of the business. The court there held the parties had only an executory contract to form a partnership in futuro and that B would not become a partner until A was paid in full for his expenditures. That contingency, as in the instant situation, never occurred and the formation of a partnership was never accomplished.

As once noted, the trial court gave no reason for the judgment rendered. Consequently, we do not know if the judgment was based, in part, upon a belief that a partnership in praesenti existed between plaintiff and Kissinger. Furthermore, if this was the case, we do not see how the court could have arrived at any sum of a money judgment without an accounting procedure which was not afforded by and cannot be gleaned from the superficial evidence produced at trial. In any event, if the judgment was predicated on a finding of the existence of a partnership, the judgment was in error and was for the wrong party. Plaintiff suggests in his brief that the court’s decision could be based on a finding of an individual obligation owed by Kissinger to plaintiff irrespective of the existence of a partnership. But this was not the theory pleaded nor on which the case was tried, and for plaintiff now to raise an entirely new theory supporting af-firmance of his own favorable judgment below is contrary to the established practice of appellate procedure. Wantuck v. United Savings & Loan Ass’n, 461 S.W.2d 692, 697[7] (Mo. banc 1971); Huter v. Birk, 439 S.W.2d 741, 745[9] (Mo.1969); MFA Mutual Ins. Co. v. Southwest Baptist College, Inc., 381 S.W.2d 797, 802-803[6] (Mo.1964); Stevens v. Missouri Pacific R. R. Co., 355 S.W.2d 122, 127[1] (Mo.1962); Shelton v. M & A Electric Power Cooperative, 451 S.W.2d 375, 380[8] (Mo.App.1970). Plaintiff’s new theory is not before us and we decline to consider it sua sponte. Nevertheless, if the enigmatic $4,000-plus profit plaintiff allegedly realized from the sale of old Crown was ceded, arguendo, to be a reality, there is not one jot of evidence (except through an excessive stretch of a biased imagination) that Kissinger acknowledged its existence or agreed to its placement in new Crown as any benefit for plaintiff. At most under the proof, plaintiff’s averred profit from the sale of old Crown and its alleged accommodation into the operations of new Crown was a unilateral declarative of plaintiff and the Joyces which perished from lack of mutuality or assent on the part of defendant Kissinger.

With caution and a firm belief that the judgment nisi was wrong, we hold the trial court’s judgment was against the weight of the evidence and that there was no substantial evidence to support it. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Being of that mind, the judgment is reversed.

All concur.

      . The judgment was also in favor of defendants Joyce on Kissinger’s cross-claim against them. In Kissinger’s appellant’s brief he observes that “For the purpose of this appeal, we are concerned only with Count I” of plaintiff’s petition. This manifests an abandonment of any complaint Kissinger could have asserted on appeal anent denial of his cross-claim. Burger King of St. Louis, Inc. v. Weisz, 444 S.W.2d 517[1] (Mo.App.1969). Ergo, we sustain Joyces’ motion to dismiss the appeal as it may have affected them. However, plaintiff’s motions to dismiss defendant’s appeal are overruled.

      . Of course, $4000-plus would not equal anything like a contribution towards one-third interest in new Crown.

      . It is suggested the $3,833 judgment was calculated by subtracting from $4,333 the $500 “draw on future profits” given to plaintiff by Kissinger at the inception of new Crown. However, there was no factual foundation for concluding that plaintiff’s interest in new Crown was, in fact, $4,333. Such a figure could be arrived at only by guess, speculation and conjecture and shielding plaintiff’s alleged interest from participation in purchases, expenses and losses experienced by new Crown.


author: PER CURIAM:

text:
    STATE of Missouri ex rel. CRAWFORD COUNTY R-II SCHOOL DISTRICT, Plaintiff-Appellant, and Consolidated District Number 2 of Franklin County, Intervenor-Appellant, v. William H. BOUSE, Defendant-Respondent. Roy EARLS, Charles Sutter, R. E. Kehr, Robert F. Bass, Arthur Howald, Joseph W. Cushing, Thomas S. Halbert, Everett L. Breuer, John J. Bouse, and Jerry A. Bouse, Defendants, and William H. Bouse, Third-Party Plaintiff, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a corporation, Third-Party Defendant.
    No. 10598.
    Missouri Court of Appeals, Springfield District.
    May 2, 1977.

      Walter D. McQuie, Jr., McQuie & Deiter, Montgomery City, for plaintiff and interve-nor-appellants.
    Morton K. Lange, Cuba, for defendant-respondent and third-party plaintiff.
    J. Kent Howald, Beckham, Hale & How-aid, Steelville, for defendants.
    David Donnelly, Donnelly, Baldwin & Wilhite, Lebanon, for third-party defendant.
   PER CURIAM:

Plaintiff school district sued 11 defendants (the county collector of revenue and his sureties) to recover its proportionate share of $4,106.70 in protested taxes paid by the St. Louis-San Francisco Railway Company (Frisco). The petition alleged that Frisco had neglected to commence an action in the circuit court against the collector to recover the protested taxes within the time required by § 139.031, V.A.M.S.

Averring he had previously repaid the protested taxes to Frisco as ordered by the county court, defendant collector filed a third-party petition against Frisco to recover all sums he might be required to pay plaintiff. Frisco responded to this action with a motion to dismiss (Rule 55.27(a)(6), V.A.M.R.) which was never ruled.

A second school district’s motion to intervene was sustained, and it filed a petition against the 11 defendants praying for its share of the protested taxes paid by Frisco. The 11 defendants filed motions to dismiss intervenor’s petition because of, inter alia, the failure to join as defendants seven other school districts in the county which would be entitled to share in the protested taxes if defendants were held liable for their distribution. These motions were not ruled. Also the 10 defendant sureties moved for leave to file a third-party petition against Frisco, but no disposition was made of this motion.

Defendant collector filed a motion for summary judgment directed to plaintiff and intervenor. The motion was sustained and the court nisi entered judgment “in favor of defendant [collector] and against the plaintiff, and against the intervenor.” Plaintiff and intervenor appealed.

Rule 81.01, V.A.M.R., states: “The right of appeal shall be as provided by law.” As germane here, § 512.020, V.A.M.S., authorizes an appeal only “from any final judgment in the case,” and to be final and appealable, the judgment must dispose of all parties and issues in the cause and leave nothing for further determination. Continent Foods Gorp. v. National-Northwood, Inc., 470 S.W.2d 315, 317[1] (Mo.App.1971). The judgment here, while purporting to dispose of the issues relating to plaintiff, intervenor and defendant collector, made no disposition as to the other defendants and contained no decision on the issues affecting the third parties in the cause. Since the judgment appealed from did not dispose of all the parties and issues, it is not a final judgment for purposes of appeal. Lewis v. Esselman, 512 S.W.2d 423, 424 (Mo.App. 1974).

Our decision herein renders moot Frisco’s motion to dismiss the appeal for other reasons and it is, therefore, denied.

Appeal dismissed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    Reva S. McCULLY, Respondent, v. Richard L. McCULLY, Appellant.
    No. KCD 27798.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.

      Thomas R. Linhoff, Kansas City, for appellant.
    Willaim T. Bernard, Kansas City, for respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

This is an appeal from a judgment and decree in an action brought by the wife (Respondent) against her husband (Appellant), tried below under the Dissolution of Marriage Act, Sections 452.300-452.415 RSMo, 1973 Supp. The decree dissolved the marriage, set over the parties’ home and a piece of property in Arkansas to the Respondent, awarded her a lump sum judgment of $9,694.00, ordered the Appellant to pay the sum of $100.00 per week as maintenance, and awarded the wife the sum of $1,500.00 attorney’s fee.

The Appellant raises two points or assignments of error, which may be thus summarized: First, that the court erred in awarding Respondent a lump sum money judgment of $9,694.00 because (a) the trial court had no authority to enter such an order since debts owed others are not “marital property” within the meaning of the Dissolution of Marriage Act, and (b) such award was an abuse of discretion as there was no evidence of marital property in addition to that awarded Respondent from which such money judgment could be satisfied. Second, the award of maintenance was inequitable and excessive and exceeded the Respondent’s needs and the Appellant’s ability to pay.

At the outset, it should be noted that the scope of appellate review of actions under the Dissolution of Marriage Act has never been clearly and positively articulated under the present state of the law. Under the former Rule 73, before amendment, the scope of appellate review in divorce actions were treated as any other court-tried case and were reviewed as suits in equity and the judgment was not to be set aside unless “clearly erroneous”. Page v. Page, 516 S.W.2d 537, 540[3] (Mo.App.1974); Boyd v. Boyd, 459 S.W.2d 8, 11[3] (Mo.App.1970); Rule 73.01(1)(3), V.A.M.R., Footnotes 536, 569 and 602.

Present Rule 73.01, adopted March 29, 1974, effective January 1, 1975, deleted the provision “the judgment shall not be set aside unless clearly erroneous” as contained in the former rule. The present Rule 73.-01(3)(a) provides that the appellate court shall review a court-tried case “upon both the law and the evidence as in suits of an equitable nature.”

In the case of Murphy v. Carron, 536 S.W.2d 30, 31 (Mo. banc 1976), the court commented that the law in Missouri “as to the scope of appellate review of suits of an equitable nature is in a state of confusion, largely as a result of an attempted use of de novo and clearly erroneous in the same standard of review.” Under the case law in Missouri decrees in equity actions are left undisturbed on appeal unless “clearly erroneous”. The court in Murphy pointed out the essential need that the “Bench and Bar of Missouri be given some sense of direction on the question” and then stated, l.c. 32[1-3]:

“Accordingly, appellate ‘review * * * as in suits of an equitable nature’, as found in Rule 73.01, is construed to mean that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong. The use of the words de novo and clearly erroneous is no longer appropriate in appellate review of cases under Rule 73.01.”

The clear guidance of the formula for appellate review as declared in Murphy v. Carrón should be and is hereby applied to this appeal under the Dissolution of Marriage Act.

The transcript of the evidence in this case and the numerous documentary exhibits have been carefully and fully reviewed and it would serve no useful or precedential purpose to recount the tragic details here, except those facts directly bearing on the points necessary for decision.

At the time the parties separated and this action was commenced, the Appellant was 64 years of age and his wife, the Respondent, was 61; they had been married 25 years and had one grown daughter, who was emancipated. He was employed in the insurance business and his net earnings were approximately $1,000.00 per month. She was also employed in the garment business and earned approximately $325.00 to $350.00 per month. Her physical condition was such that she was in the need of surgery. Prior to the difficulties leading to this suit they lived comfortably, with no showing of any great financial stress.

They owned and occupied a home in the south part of Kansas City, which was held in tenancy by the entirety and which was subject to a first and second mortgage and a home improvement loan. They were also purchasing a piece of resort property in Arkansas, apparently on a contract for a deed.

About three years before this action was filed, the Appellant became attached to another woman, and although he denied any improper relations with her, she testified that they were sexually intimate and that she had accompanied him on trips; and, that he had helped her and her two children financially. There was substantial evidence that at least part of this period the Appellant maintained her in an apartment, helped her with her rent and utilities, bought gifts for her and her children, and in part at least, was maintaining two households.

During this time he borrowed money at banks and finance companies and many of the notes representing such loans were signed by the Respondent at Appellant’s request, some of which were signed by her in blank.

After the filing of this action the Appellant filed his petition in bankruptcy in which he listed all of the parties’ joint debts and obligations, leaving the Respondent solely responsible for those debts. Upon his adjudication as a bankrupt, she was immediately called upon by the creditors to satisfy the obligations, foreclosure was threatened on the home, and a judgment was taken against her on at least one of the other obligations. It was to cover these debts (other than the mortgages on the home) from which the Appellant had been relieved by his bankruptcy that the court below awarded the Respondent the lump sum of $9,694.00.

The Appellant’s position as to his first assignment of error is based upon the specious reasoning that the debts for which the trial court rendered the lump sum judgment were not “marital property” within the meaning of the Dissolution of Marriage Act and therefore not subject to division under Section 452.330(1), Laws 1973, p. 470, Sec. 7, and the fact of such debts, the present sole obligation of the Respondent to pay them and the reasons for such debts and their increase during the appellant’s extra-marital affair should, therefore, be completely disregarded by the trial court in his effort to fairly adjust the economic position of the parties. This position completely overlooks the inherent nature of the proceedings. The present proceedings decided under the Dissolution of Marriage Act, are no less charged with the principles of equity than the old divorce actions.

While sui generis and an action at law, this proceeding, nonetheless, partakes of the nature of a suit in equity and the trial court is clothed with broad equitable powers. The adjustment of financial equities as between the parties was and is an inherent power of the trial court. In this connection, this court has recently ruled that the power of the trial court under the Dissolution of Marriage Act with reference thereto is intended “to accommodate consideration of manifest justness and fairness” and such cannot be accomplished by mathematical formula. Corder v. Corder, 546 S.W.2d 798, 804[9] (Mo.App.1977).

The fact that there was no evidence of the Appellant’s present ability to pay this judgment and thus relieve the Respondent of her sole burden of these debts does not render nugatory this power of the trial court. Claunch v. Claunch, 525 S.W.2d 788, 792[4,5] (Mo.App.1975).

One further observation is appropriate in this area. There was direct conflict in the testimony of the Appellant and of the Respondent as to the purpose of these loans, in that the Appellant claimed that over $6,000.00 of the proceeds were used for the college education of the daughter of the parties, and the Respondent denied this fact. Under these circumstances, it is obvious that the trial court chose to believe the Respondent and this court must in this respect, as in all others touching the credibility of the witnesses, give deference to the trial court’s superior opportunity to judge such credibility. Rule 73.01(3)(b), Rules of Civil Procedure. The Appellant’s first point is ruled against him.

The trial judge is given broad discretion under Section 452.335 of the Dissolution of Marriage Act, Laws 1973, p. 470, Section 8, in awarding maintenance. There was substantial evidence in this case that the respondent earned from $325.00 to $350.00 per month and that her monthly expenses, including payments on the home mortgages and home improvement loans, were $975.00 per month. The evidence further showed that the Appellant had a net monthly income of $1,000.00 per month, after deduction of business expense and taxes.

The trial court made detailed findings showing that in making this maintenance award it took into consideration the length of the marriage (25 years), the health and age of the Respondent, the ability of the Appellant to meet his needs and provide maintenance and the statutory admonitions in arriving at its judgment as to maintenance. Even with the maintenance, the Respondent’s resources will fall short of her established needs. Her entire property, aside from earnings, consists of the heavily mortgaged home, the furniture, and a piece of property of doubtful value in Arkansas under contract for a deed. No question is raised as to her good conduct during the marriage. An abuse of discretion does not appear. If circumstances change, relief can be granted under Section 452.370, of the Dissolution of Marriage Act, Laws 1973, p. 189, Sec. 15. The Appellant’s second point is ruled against him.

There was substantial evidence to support the decree, it was not against the weight of the evidence, it did not erroneously declare the law, and it did not erroneously apply the law. Murphy v. Carrón, supra.

The judgment is affirmed.

All concur.

      . The Missouri Court of Appeals, St. Louis District, has recently applied the Murphy v. Carron rule in an appeal involving a motion to change an order relative to child custody. Edward Newton Randle, Jr., Respondent v. Beverly Ann Randle, Appellant, No. 37,490, decided April 19, 1977, Clemens, J., - S. W.2d-.


author: PER CURIAM.

text:
    Evelyn COFFER, Appellant, v. Lula Mae PARIS, Respondent.
    No. KCD 27989.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Vanet & Reardon, Michael E. Reardon, North Kansas City, for appellant.
    Max Von Erdmannsdorff, Von Erd-mannsdorff, Zimmerman, Gunn & Trimble, Kansas City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   PER CURIAM.

Plaintiff, a passenger in an automobile which was struck from the rear by an automobile operated by defendant, filed suit to recover damages for personal injuries. Plaintiff’s case was submitted to a jury under the “rear-end doctrine”. The jury found in plaintiff’s favor and awarded her damages in the sum and amount of $15,-000.00. Defendant filed a motion for new trial, alleging twenty-four instances of error, which was sustained by the trial court on the sole ground that plaintiff’s verdict directing instruction deviated from the applicable instruction prescribed by MAI. Plaintiff appeals from the order of the trial court granting a new trial.

The accident occurred June 4, 1971, on Vivion Road near Penguin Park, Kansas City, Missouri. After the automobile in which plaintiff was riding had come to a complete stop to permit two automobiles ahead of it to turn off of Vivion Road, it was struck from behind by defendant’s automobile. Approximately one-half of the transcript deals exclusively with the testimony of opposing medical experts as to the nature, extent and cause of the personal injuries for which plaintiff sought money damages. Although plaintiff, following the accident and of her own volition, visited and sought professional treatment from four different doctors with reference to neck and back complaints, her own medical expert at the trial was a doctor to whom she was referred by her attorney. This doctor saw her on one occasion, some three years after the accident, for the purpose of appearing as a medical expert on her behalf. Defendant’s only medical expert was one of the four doctors whom plaintiff voluntarily went to on frequent occasions following the accident.

At plaintiff’s request the trial court gave the following verdict directing instruction:

“Your verdict must be for plaintiff if you believe:
First, defendant permitted her automobile to come into collision with the rear of the automobile in which plaintiff was a passenger, and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence, the plaintiff sustained damage.” (Emphasis added.)

This instruction, appropriately modified, conformed to MAI No. 17.16 as originally promulgated. MAI No. 17.16 as originally promulgated was revised effective July 1, 1973. Trial of this case commenced on January 6, 1975. MAI No. 17.16, as revised, reads:

“Your verdict must be for plaintiff if you believe:
First, defendant’s automobile came into collision with the rear of plaintiff’s automobile, and
Second, defendant was thereby negligent, and
Third, as a direct result of such collision plaintiff sustained damage.” (Emphasis added.)

Plaintiff candidly admits on appeal that she requested and the trial court gave the original rather than the revised version of MAI No. 17.16, and, in that sense, doing so constituted a deviation from the appropriate MAI instruction. She seeks to obviate this error by arguing that giving the original version of MAI No. 17.16 was not prejudicial to defendant as it placed a greater burden on plaintiff than would the revised version.

Rule 70.01(c) provides that when an applicable MAI instruction is not used, failure to do so constitutes error, “its prejudicial effect to be judicially determined.” Plaintiff, as proponent of the verdict directing instruction which was given, bears the burden of demonstrating that it was nonprejudicial. Murphy v. Land, 420 S.W.2d 505, 507 (Mo.1967). See also: Ogle v. Terminal Railroad Association of St. Louis, 534 S.W.2d 809, 812 (Mo.App.1976) and Watterson v. Portas, 466 S.W.2d 129, 132 (Mo.App.1971). Whether a deviant MAI instruction, which is not otherwise unfavorable to the opposing party, places a greater burden on the party submitting it than would the appropriate instruction is one test for judicially determining its prejudicial effect. Burrell v. Mayfair-Lennox Hotels, Inc., 442 S.W.2d 47, 53-54 (Mo.1969); and Griggs v. Riley, 489 S.W.2d 469, 474 (Mo.App.1972).

The “Committee Comments [Supplemental]” in conjunction with MAI No. 17.16, as revised, fail to shed any light on the reasons underlying its revision. Aware of the Committee on Instructions’ dedication to conforming all pattern instructions to the prevailing law, it must be assumed that substantive rather than mere semantic reasons prompted the revision of MAI No. 17.16.

Submission under the “rear-end doctrine” is a submission of specific negligence. Witherspoon v. Guttierez, 327 S.W.2d 874, 880 (Mo.1959). The “rear-end doctrine” is clearly expounded in Hughes v. St. Louis Public Service Go., 251 S.W.2d 360, 362 (Mo.App.1952), as “the doctrine or rule of law which recognizes that if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a pri-ma facie case of specific negligence against such other person in charge of the overtaking vehicle.” Evidence to this effect, if believed by a jury, supports a finding of negligence against the driver of the overtaking vehicle. Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914 (1942).

Thus, specificity as to antecedent conduct which caused the collision, for example failure to keep a proper lookout or excessive speed, is not required. Use of the following language in the first paragraph of MAI No. 17.16 as originally promulgated, “defendant permitted his automobile to come into collision with the rear of plaintiff’s automobile” (emphasis added), intones a requirement of specificity. Use of the following language in the third paragraph of MAI No. 17.16 as originally promulgated, “as a direct result of such negligence ” (emphasis added), likewise intones a requirement of specificity. This court, hazardous though it may be, opines that the Committee on Instructions deleted “permitted” from the first paragraph of the revised version of MAI No. 17.16 and substituted “collision” in place of “negligence” in the third paragraph thereof to eliminate any overtones of specificity as to antecedent conduct. So viewed, the original version of MAI No. 17.16 given by the trial court at plaintiff’s request imposed a greater burden on plaintiff than would the revised version of MAI No. 17.16 and was not unfavorable to the defendant. For this reason, the verdict directing instruction given by the trial court may be and is judicially determined not to have been prejudicial to defendant and therefore fails to support the order entered by the trial court granting a new trial. However, this does not terminate appellate review of the matter.

Defendant takes the position, and correctly so, that seven other instances of trial error cited in her motion for new trial and mentioned as points in her brief on appeal, demand appellate review and, if sustained, justify affirmance of the order of the trial court granting a new trial. Support for her position is found in Overton v. Tesson, 355 S.W.2d 909, 913 (Mo.1962): “On appeal from an order granting a new trial for a specific reason the burden is on appellant to show that the court erred in sustaining the motion upon the ground specified, . and appellant assumes no other burden. . . . Respondent, in defending the action of the court in sustaining the motion, is not confined solely to the ground specified by the court, . . . but may show that notwithstanding the motion is not sustainable on the ground specified, there are other grounds alleged in the motion for new trial under which the motion should have been sustained. ‘[RJespondent is entitled to have the other assignments of error in his motion reviewed,’ . . . and ‘if other assignments in the motion for a new trial will support the order granting the new trial, then such order should be affirmed, * * *See also: Silvey v. Missouri Pacific Railroad Company, 445 S.W.2d 354, 361 (Mo.1969); Cantwell v. Zook, 250 S.W.2d 980, 981 (Mo.1952): Higgins v. Higgins, 243 Mo. 164, 147 S.W. 962, 963 (1912); and Hunt v. Hunt, 387 S.W.2d 234, 238 (Mo.App.1965).

It is unnecessary to address all seven assignments of trial error relied upon by defendant as one in particular stands out to justify the granting of a new trial. Defendant submits that the trial court clearly erred in permitting plaintiff’s expert medical witness to testify generally as to symptoms, pain and disabilities ordinarily associated with a condition of cervical instability which progressively becomes worse. The alleged error relied upon by defendant appears in the following context. Plaintiff’s expert medical witness on direct examination testified that he diagnosed plaintiff’s condition as one of instability of the cervical spine. Immediately thereafter, the following testimonial dialogue occurred on direct examination of said witness:

“Q What is the prognosis for Mrs. Coffer’s injury with regard to cervical instability?
A I don’t believe I can say. I’ve only examined her the one time; and sometimes they get better, and sometimes they get progressively worse.
Q If it were to get worse, what problems could arise?
A Well, if it gets worse, if it continued,—
[DEFENSE COUNSEL]: Excuse me just a moment. I want to object to that question because it calls for speculation and conjecture.
THE COURT: Sustained.
Q [PLAINTIFF’S COUNSEL] Doctor, in your experience, what problems ordinarily arise if the cervical instability were—
[DEFENSE COUNSEL]: Excuse me. Object to the question for the same reason.
THE COURT: I’m sorry; I didn’t hear your question, counsel.
[PLAINTIFF’S COUNSEL]: I was asking the Doctor what difficulties ordinarily arise in his experience as a result of cerfical [sic] instability, if it continued to become worse.
THE COURT: Overruled. He may answer.”

Plaintiff’s expert medical witness then proceeded to describe in considerable detail symptoms, pain and disabilities attendant upon a condition of cervical instability which has become worse.

The trial court erred in admitting, over defendant’s objection, the above testimony by plaintiff’s expert medical witness. This conclusion is firmly buttressed by Hahn v. McDowell, 349 S.W.2d 479, 482 (Mo.App.1961), involving analogous medical testimony objected to by the defendant therein, which this court takes the liberty of quoting from at some length: “Neither doctor gave it as his opinion that such development was reasonably certain to result, nor even that it would probably result from the injury. We think the evidence was clearly incompetent and prejudicial. It is undoubtedly true that in an action to recover damages for personal injuries testimony of experts as to the future consequences which are expected to follow the injury are competent, but to authorize such evidence, however, the apprehended consequences must be such as in the ordinary course of nature, are reasonably certain to ensue. It is not enough for the doctor to testify to the possibility of a certain result; his testimony should show that it is reasonably certain to follow the injury. Consequences which are contingent, speculative, or merely possible are not proper to be considered by the jury in ascertaining the damages, for it would be plainly unjust to compel one to pay damages for results that may or may not ensue and which are merely problematical. We are supported in this view by ample authority. See Mahany v. Kansas City R. Co., 286 Mo. 601, 228 S.W. 821; Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Clark v. Mississippi River & B. T. Ry. Co., 324 Mo. 406, 28 S.W.2d 174; Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969; Boss v. Ill. Cent. R. Co., 221 Ill.App. 504; Toledo Rys. & Light Co. v. Poland, 7 Ohio App. 397; Haase v. Ryan, 100 Ohio App. 285, 136 N.E.2d 406; Lorch v. Eglin, 369 Pa. 314, 85 A.2d 841; Collins v. City of Janesville, 99 Wis. 464, 75 N.W. 88; Lauth v. Chicago Union Traction Co., 244 Ill. 244, 91 N.E. 431; Strohm v. New York L. E. & W. R. Co., 96 N.Y. 305; Turner v. Lovington Coal Mining Co., 156 Ill.App. 60; Rice v. Hill et aL, 315 Pa. 166, 172 A. 289. The court erred in admitting the evidence complained of, and for that reason defendant is entitled to a new trial.”

It is unnecessary to rule on the six remaining assignments of error raised by defendant in order to dispose of this appeal, and this court expressly refrains from doing so since they may not reoccur on retrial of this case, or, if they do, they may not arise in the same context.

The trial court’s order granting a new trial is affirmed and said cause is remanded for a new trial.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Marie CACIOPPO, Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant.
    No. 28034.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.

      James E. Taylor, J. Curtis Nettels, Kansas City, Jack C. Lorenze, William C. Sullivan, James A. Daugherty, St. Louis, for appellant.
    Marie Cannon, Allan R. Browne, Ennis, Browne, Martin & Tapp, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special JJ.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from verdict and judgment for plaintiff in action for actual and punitive damages for continuing trespass to real estate. The dispositive question is whether the court erred in permitting recovery for damages which arose prior to five years immediately preceding institution of the action. Reversed and remanded.

Respondent has moved to dismiss this appeal for the reasons: (1) The notice of appeal is insufficient to confer jurisdiction because it states that defendant “appeals from the judgment entered * * * on the ninth day of May, 1975”; the judgment was entered April 3, 1975; defendant’s motion for new trial was overruled May 9, 1975, but this was not an appealable order under Rule 81. (2) Appellant’s statement of facts is partisan, inadequate, and unfair, in violation of Rule 84.04(c), and its points are general and do not state wherein or why the court erred in violation of Rule 84.04(d).

The motion to dismiss the appeal is overruled: (1) Although defendant should have expressed its appeal as taken from the judgment entered April 3, 1975, and not from the “judgment” entered May 9, 1975, the record demonstrates that defendant’s reference to May 9, 1975, was inadvertent, and that it made a good faith effort to appeal from the judgment. Its notice of appeal is so treated. Rule 84104, V.A.M.R.; Dors v. Wulff, 522 S.W.2d 325, 326[1] (Mo. App.1975); Matter of Estate of Langford, 529 S.W.2d 31, 32[2] (Mo.App.1975). (2) Appellant’s brief demonstrates a good faith compliance with the rule governing contents of briefs, and it complies with the policy of the supreme court in that it is “reasonably possible” to decide the points raised on their merits. Wykle v. Colombo, 457 S.W.2d 695, 698[1] (Mo.1970).

On May 2, 1972, plaintiff filed her petition for damages alleging: that for approximately 15 years defendant wrongfully and without just cause or excuse maintained a junction box for electrical (telephone) equipment in her apartment building; that the junction box required frequent inspection, servicing, and repair; that defendant’s employees frequently and continuously entered the area of the box without permission and against her will, causing disturbance of (herself) her tenants and prospective tenants, and loss during said period of approximately $60 per month; that during the period 1954 to 1972, defendant, pursuant to the foregoing entries, continually littered the floor of the area of the box with wires, trimmings, scraps of materials, and other debris, “all as a matter of trespass and against the will of” plaintiff, creating a nuisance and necessitating repair and cleaning at her expense resulting in damage of $6,240; that by reason of defendant’s wrongful, illegal, and willful placing of said junction box without authority from plaintiff and as a direct result of “the trespass and nuisance created as herein set forth,” plaintiff’s privacy was invaded, she suffered harassment, she was disturbed during an illness in 1961, her beauty salon business was damaged during 1964, 1965, and 1966, she lost tenants, she was unable to remodel her building, and it was rendered unsightly; that such acts resulted from legal malice, all to her actual and punitive damages in like sums of $50,000.

Defendant’s answer, among other things, pleaded the bar of the 5-year statute of limitations, Section 516.120, RSMo 1969.

Appellant tacitly concedes that plaintiff made a case, and the evidence need be stated only to the extent necessary to an understanding of the case and resolution of the dispositive question.

In 1952, Marie Cacioppo purchased a 6-unit, 3-story apartment building at 1815 Brownell, Kansas City, Missouri. The building was one of a group of seven apartment buildings on Brownell and Woodland. She and her family occupied one apartment in her building, and she rented the remaining apartments to various tenants. One such apartment was made available for lease after her acquisition of the building by remodeling an area in the basement.

At the time of plaintiff’s purchase, there was located in the basement of the building certain telephone equipment owned and maintained by Southwestern Bell Telephone Company. The equipment consisted of cables leading into, and a number of wires leading out of, a junction box or cross-box. The box and equipment had been installed by Kansas City Telephone Company in 1923 or 1924, and Bell acquired it in 1927.

Mrs. Cacioppo knew of the existence of the telephone equipment in the basement before she purchased the building, but did not know the extent of service it provided. She thought it was “all just part of the basement.” A junction box serves as an access to line pairs leading to many telephones. The box in question served not only the telephones in plaintiff’s building, but also the telephones of defendant’s subscribers in the buildings clustered near 1815 Brownell. A junction box requires periodic service, and when trouble involves a telephone served by the box, it is necessary that repairmen have access to the box. The box in question, located as it was in plaintiff’s private premises, necessitated arrangements between plaintiff and defendant’s repairmen for purposes of entry into plaintiff’s basement.

Shortly after, plaintiff learned that the junction box served buildings other than her own, and she began to complain of the presence of the box in her basement. She complained of it as an eyesore, and of consistent calls at her house by repairmen wanting access to her basement. She called the Bell office, and sought and gained an appointment with a Bell “district manager.” When they met, she told the company’s representative, “You are going to have to do something about this box,” and she was assured by him that “they would send somebody out.”

In June, 1952, plaintiff had a baby. During the baby’s infancy, she was constantly bothered in her daily routine by arrangements to meet telephone people to let them into her basement or to “leave the key with a neighbor or somebody to let the telephone people come in.” During this period, the telephone people would come “two or three times a day, sometimes. I have had them as high as five times a day, with trouble for somebody in the box.” She continually protested such interruptions by calling the telephone company and asking that the junction box be removed. She received repeated assurances that someone from the company would come to her place; but when only servicemen came they would laugh at her and tell her, “You’re not going to get the telephone company to do anything.”

In 1964 plaintiff returned to her work as a beautician, first at a shop in the Hilton Inn, later for a year at a shop on West 12th Street, and still later at a shop in one of her apartments. During the operation at the Hilton and on 12th Street, she often had to leave her customers at the shop and drive to 1815 Brownell to admit defendant’s repairmen. On one occasion she was called by a telephone customer serviced through the junction box and was chided for not remaining at home to admit repairmen. On another occasion, a “district manager” of defendant called on plaintiff at her shop and, in the presence of customers, told her a man, seriously ill, whose telephone connected to the junction box, had reported telephone trouble and stated he might die and “it would be my fault if the man passed away because I was not home to let the telephone man in.” He also told plaintiff that unless she arranged to have a basement key available to servicemen at all times the company would “get to me by taking both my personal phone out and my beauty shop phone, which would completely put me out of business, then.”

As a result of the last incident, plaintiff called the Missouri Public Service Commission in Jefferson City, and talked to Mr. “Perkinger” (Gordon Persinger) of the commission’s Department of Rates and Services. Mr. Persinger transferred her call to a 3-party call with an unidentified “representative” of the telephone company as a third party. Mrs. Cacioppo detailed her complaints with respect to the company and its junction box, after which Mr. Persinger told the representative, “I can’t understand why you would want to bother this lady all of this time, when it isn’t necessary. * * You should have had that [junction box] taken out a long time ago. * * * Do something about it. And if she can’t afford a lawyer, I am going to get her mine.”

After her call to Mr. Persinger, plaintiff consulted a lawyer and decided to deny further access to the junction box to telephone company personnel. She was advised by defendant, by letter of December 20, 1971, from Robert Pfeneger, that her denial of access to the junction box was jeopardizing telephone service to other customers and if access was not given by December 27, 1971, her own service would be terminated. On January 13, 1972, plaintiff’s attorney sent a letter to defendant demanding removal of the box. The parties subsequently reached agreement with respect to access and correction of problems. In March, 1972, defendant completed work in plaintiff’s basement so that the junction box no longer served any telephone outside plaintiff’s building and it was no longer necessary for defendant’s personnel to gain access to her basement for trouble calls other than her own.

Throughout the period 1952-1972, in addition to the foregoing complaints of nuisance and annoyance arising from the access problem, plaintiff continually complained of untidiness of defendant’s workmen when working at the junction box. On such occasions, litter, debris, pieces of wire, and other junk would be left by defendant’s workmen and plaintiff had to clean the area at her expense. Plaintiff also claimed a loss of rentals which, in absence of the junction box, would have been derived from her basement apartment. She placed the rentals at $45 per month for part of the period and at $60 per month for the remainder. She estimated the loss in rentals over the 15 to 20-year period at $10,000. Plaintiff paid her son and neighborhood “kids” to do the cleaning work at the rate of one or two dollars a time, and her brief accepts defendant’s statement in argument to the jury that this amounted to $2,000.

At the outset of trial, defendant moved unsuccessfully (in writing) to suppress all evidence or reference to “any damages allegedly sustained by plaintiff prior to May 2, 1967,” and (orally) “to also suppress any evidence of any occurrences or any facts relating to incidents which occurred prior to May 2nd of 1967.”

Plaintiff made no effort in offering her proof to separate evidence of events taking place prior to May 2, 1967, and those occurring after that date. There is no question of the timeliness and sufficiency of defendant’s objections to plaintiff’s evidence relating to events occurring prior to May 2,1967, and defendant offered an instruction, refused by the court, which would have withdrawn from the case the evidence of any damage plaintiff may have sustained prior to May 2, 1967.

Appellant charges the court erred (I) in allowing plaintiff to recover damages which occurred prior to May 2,1967, and in admitting evidence relating to the facts and occurrences taking place prior to May 2,1967, on the ground the applicable statute of limitations, Section 516.120, supra, was a bar to the admission of any evidence relating to plaintiff’s claim arising before the five years immediately preceding the filing of her petition. Appellant charges a related error (III) in refusing to give defendant’s requested withdrawal instruction.

Respondent asserts (I) that under Section 516.100, RSMo 1969, limitations did not commence to run until the damage resulting from defendant’s conduct was sustained and was capable of ascertainment as to the last item of damages; that the matters involving plaintiff and defendant were “continuing transactions” or a “running transaction” so that the statute did not commence to run until their termination; and that the combination of promises to remedy the wrong and threats of reprisal if plaintiff pursued her remedies created an estoppel which prevents defendant from urging the statute of limitations. On the related charge (III) respondent supports the court’s refusal to give the withdrawal instruction, asserting that its .offer ignored the question of estoppel; that there was evidence of “continuous transactions” between the parties concerning the complaints of plaintiff as submitted in her verdict-directing instruction which revealed that the last item of damage occurred shortly before the petition was filed and within the 5-year period; that there was evidence to justify invoking the doctrine of estoppel in that defendant in a “continuing transaction” promised to correct matters complained of, and salted these promises with threats of removing plaintiff’s personal and business telephones unless she desisted from her efforts to obtain redress.

Section 516.100, supra, provides:

“Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; provided, that for the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.”

Section 516.120(3), supra, provides that “an action for trespass on real estate” shall be commenced within five years.

Plaintiff’s petition states an action for damages for trespass on her real estate covering a period alleged as approximately fifteen years, enlarged by her evidence to twenty years, i. e., from 1952, when she acquired the real estate in question and asked that the junction box be removed, to March, 1972, when the box was removed.

The evidence shows that plaintiff made a case against defendant of trespass on her real estate over the period 1952 to 1972. Such evidence also shows that the trespass was of a continuing character in that numerous acts were committed, their continuance was likely, and there was injury or damage as a result of each act. Plaintiff refers to such series of acts as a “running transaction” or “continuing transactions.” The appropriate description of such acts is “continuing trespasses.” 75 Am.Jur.2d Trespass § 16.

As the foregoing authority suggests, where acts constitute a continuing trespass, and the injury from each act is, or would be, trifling, the owner may resort, in the first instance, to a court of equity for appropriate relief. The owner may proceed by way of injunction to restrain continuation of the trespass, or sue in ejectment, or maintain a common-law action on the theory of trespass for actual damages, and when the facts warrant it also recover punitive damages. Keeven v. St. Charles County Utilities Co., Inc., 542 S.W.2d 349, 352-35S[1] (Mo.App.1976).

Plaintiff chose to proceed on the theory of trespass for actual and punitive damages, and she was required by Section 516.120[4], supra, to bring her action (or actions) within five years of accrual, Young v. Southwestern Bell Telephone Co., 318 Mo. 1214, 3 S.W.2d 381, 384[1] (1928); Person v. City of Independence, 114 S.W.2d 175 (Mo.App.1938). The statute of limitations began to run against plaintiff at such time as her suit could be maintained. Baron v. Kurn, 349 Mo. 1202, 164 S.W.2d 310, 316 (1942); State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141, 148 (Mo.App.1974).

“A continuing trespass upon real property creates separate causes of action, which are barred only by the running of the statute against the successive trespasses, and not by the running of the statute from the time of the original trespass. So, also, if a trespass is followed by injury constituting a continuing nuisance, the damages for the original trespass must all be recovered in one action, but successive actions may be brought to recover damages for the continuation of the wrongful conditions, and in these the damages are estimated only to the date of the bringing of each suit, and the statute of limitations does not begin to run from the date of the original trespass.” 75 Am.Jur.2d Trespass § 65. “In the case of a continuing trespass the statute does not begin to run from the date of the original entry, but recovery may be had for a period of time not exceeding the statutory period immediately preceding the institution of the action.” 87 C.J.S. Trespass § 71. Thus, “in ease of a continuous trespass for a series of years, the action is barred as to so much only of the wrong as was committed prior to the term of limitation.” Graf v. City of St. Louis (Memorandum Opinion), 8 Mo. App. 562 (1880). Accordingly, the court erred in permitting Mrs. Cacioppo to recover damages for any acts of trespass occurring prior to May 2, 1967, and the cause must be reversed for trial in which the issue of damages would be limited to damages sustained by plaintiff after May 2, 1967. See Lindberg v. Linder, 133 Cal.App. 213, 23 P.2d 842 (1933).

Farrar v. St. Louis-San Francisco By. Co., 361 Mo. 408, 235 S.W.2d 391 (1950) and Urie v. Thompson, 357 Mo. 738, 210 S.W.2d 98 (banc 1948), cited by respondent, are silicosis cases and do not support her theory that she had to wait to seek relief from defendant’s near 20-year pattern of misconduct until the source of her troubles, defendant’s junction box, was removed in order to have her damages ascertained. If such were the case, it would seem that if defendant never removed the junction box, plaintiff’s cause of action would never accrue. See also De Paul Hospital v. Southwestern Bell Tel., 539 S.W.2d 542 (Mo.App.1976), where plaintiff could not institute suit for overcharge in a period 1953 to 1972 until after the Public Service Commission determined that plaintiff was entitled to a rate lower than that charged.

Nor was defendant estopped to assert the bar of the statute of limitations. Statutes of limitations are favored in the law, and cannot be avoided unless the party seeking to do so brings himself within some exception. To constitute such an exception by way of an estoppel, proof asserted to support it must be absolute and unequivocal. Neal v. Laclede Gas Co., 517 S.W.2d 716, 719[3], [6] (Mo.App.1974). There is no evidence that defendant agreed not to assert the statute of limitations in consideration of plaintiff’s forebearance to sue upon which to found an estoppel against defendant, Branner v. Klaber, 330 Mo. 306, 49 S.W.2d 169, 178 (1932); or that defendant, by any act or in any way, prevented plaintiff from commencing her cause of action, Rogers v. Brown, 61 Mo. 187, 193 (1875); or that defendant induced plaintiff to refrain from instituting her suit before it was barred by the statute of limitations, Martin v. Potashnick, 358 Mo. 833, 217 S.W.2d 379, 382[7] (1949). The evidence shows only that she failed to sue until May 2, 1972.

Appellant charges also that the court abused its discretion in permitting plaintiff to amend her petition and in denying defendant’s retaliatory motion for continuance (II); that the court erroneously admitted evidence on damages that was speculative and without foundation (IV); that the court erroneously admitted the 3-party telephone conversation in evidence (V); that plaintiff’s verdict-directing instruction (3) and her instructions on actual and punitive damages (5, 6, 7) were erroneous (VI, VII, VIII); and that the court erred in failing to order a remittitur of both actual and punitive damages (IX).

Charges II and IX are moot. The remaining charges suggest trial errors that may not again arise, or may be corrected in line with considerations suggested by the appellate briefs.

Judgment reversed and cause remanded.

All concur.


author: SHANGLER, Presiding Judge.

text:
    John DICKEY, Plaintiff, v. THIRTY-THREE VENTURERS et al., Appellants, Cecil Van Tuyl, Respondent.
    No. KCD 28127.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.

      George T. O’Laughlin, Miller & O’Laugh-lin, P. C., Kansas City, for intervenors Citizens Bank of Hopkins and Rudy Johnson; Larry E. Butcher, Kansas City, of counsel,
    Harry A. Morris, Donald H. Loudon, Kansas Qfty, for respondent; Morris, Larson, King, Stamper & Bold, Kansas City, of counsel.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

This case involves an attempt by two banks, Citizens Bank of Hopkins and Citizens Bank of Brookfield [through Rudy Johnson, successor in interest and substitute party for Bank of Brookfield] to enforce guarantor liability assumed by appellant Cecil Van Tuyl by contract and his effort to avoid liability based on a later settlement agreement.

This appeal presents one aspect of a transaction by shareholders Van Tuyl, Dickey and others for the sale of five rural banks to Rudy Johnson and his five wholly-owned Venturers corporations. The terms of the sale agreement, concluded separately on October 16,1970, by each bank, rendered the sellers jointly and severally liable for these undertakings. The basic sales agreements were amended to require the sellers [in accordance with conditions set by the Federal Deposit Insurance Corporation] to collect certain specified loans owed the banks within 180 days after the closing of the agreements. In this manner Van Tuyl became the guarantor of a promissory note for $80,000 owed by seller Dickey to the Citizens Bank of Brookfield. It is this liability which is in contest on this appeal.

It became apparent to Johnson soon after the sales agreement that the bank loans would not be paid on time, so for himself and the Venturers corporations he notified the sellers of intention to exercise certain charge-back procedures allowed him by the sales agreement on such eventuality.

There followed a declaratory judgment action by seller Dickey against the five Venturers corporations for declaration of the obligations of the parties — as to payment of interest, charge-backs and other matters — under the terms of the October 16, 1971, sales agreements. Two of the Venturers corporations [Thirty-Three Ven-turers, purchaser of the Hopkins Bank, and Thirty-Seven Venturers, purchaser of the Brookfield Bank] counterclaimed against seller Dickey and joined Van Tuyl and the other sellers to enforce their guaranty liability for loans owed the banks. Rudy Johnson [as successor in interest of the Brookfield Bank] brought a petition in intervention against all the sellers, including Van Tuyl, to enforce their guaranty of the $80,000 promissory note owed by seller Dickey to the Brookfield Bank.

These disputes brought all the principals [the sellers, Venturers corporations, Johnson and the banks] to conclude a settlement agreement on December 15, 1971, designed to allow completion of the sales transactions. The agreement provided for Van Tuyl to release any claim of lien to Brook-field Bank stock so that it might be sold to a third party, for the mutual release of claims among all the principals, the payment of certain obligations [which included the $80,000 Dickey note to the Brookfield Bank] and the dismissal with prejudice of all pending actions.

On the basis of these recitals, Van Tuyl moved dismissal with prejudice of the Ven-turers counterclaims and the Brookfield Bank intervention against him. The dismissal motion was sustained on May 8,1972, by Judge J. D. Murphy before whom the declaratory judgment action then pended. That judgment became final for appeal on June 27, 1975, after the other claims of the declaratory judgment action were determined. It is this May 8, 1972, judgment of dismissal for Van Tuyl which intervenor Brookfield Bank now appeals to us.

After the Van Tuyl motion to dismiss was filed, but before the order of dismissal was entered, Van Tuyl and the other sellers sued for specific performance of the settlement agreement. The defendants Johnson and his Venturers corporations counterclaimed for a declaration that the settlement agreement was void and unenforceable on grounds that the compromise was the result of economic duress practiced upon them by the sellers and was on matters not in good faith dispute. The trial court declared the settlement agreement void and unenforceable and the sales agreements in full force and effect, denied specific performance of the settlement agreement and awarded defendants actual and punitive damages on their counterclaims.

The judgment which denied specific performance and assessed damages was appealed by the sellers in March of 1974. While that appeal pended, the separate declaratory judgment which sought the definition of the sales agreements went to suit and [along with the dismissal of the Brook-field Bank-Johnson counterclaim against Van Tuyl entered in May of 1972] became final for purposes of review in June of 1975.

We have described the anomaly of these two parallel litigations — one for declaratory judgment and the other for specific performance — which spring from a common transaction among the same parties but brought separately, because the focus of both actions converges on the validity of the settlement agreement.

This uncommon procedure has brought for our appellate review first, although filed last, the specific performance litigation. That appeal was decided in Dickey v. Johnson, 532 S.W.2d 487 (Mo.App.1976). The dismissal of the Brookfield Bank-Johnson counterclaim against Van Tuyl in the declaratory judgment action, brought and determined first, finally comes for our appellate determination. The essential unity of both litigations is recognized in Dickey, and it is within that matrix we consider and decide this appeal. That is because the settlement agreement Van Tuyl and the other sellers sought to specifically enforce recited as one consideration the dismissal of the declaratory judgment action counterclaims then pending against them.

Dickey found [l.c. 498 and 501] that the declaratory judgment action on the sales agreements was a sham because there was no good faith dispute among the parties as to those undertakings, so that the settlement agreement was without consideration on that ground. Dickey found also [l.c. 499] the other recited support for the settlement agreement — that Van Tuyl and other sellers released their claims of lien to the Brookfield Bank shares to allow sale to a third party — was neither loss to the sellers nor consideration to the buyers to forbear from their declaratory judgment action counterclaims, simply because the sellers then had no liens to relinquish. In these express terms, Dickey decided there was no good faith dispute as to any matter between the parties and refused to order specific performance of a settlement agreement not grounded on consideration. That is to say, the sellers without legitimate reason simply failed to perform the clear obligations of the sales agreements.

We now must determine how the Dickey denial of specific performance bears on the issue on this appeal: the validity of the judgment entered by Judge Murphy in May of 1972 which dismissed the Brookfield-Johnson declaratory judgment action counterclaim against Van Tuyl and so gave effect to the settlement agreement.

The parties agree that Dickey finds no good faith dispute in the allegations of the declaratory judgment action and so refuses specific performance of the settlement agreement on that recited consideration. The parties disagree, however, as to the legal effect to be accorded this rationale. Brookfield Bank-Johnson argues that Dickey conclusively determines the invalidity of the settlement agreement and so invalidates the Judge Murphy order of dismissal on principles of res judicata and es-toppel. Van Tuyl does not challenge that Dickey was a final judgment between the same parties on a different cause of action, but argues that the decision to withhold specific performance of the settlement agreement was not also a determination that the compromise was of no effect. Van Tuyl argues thereby that the denial of specific performance did not rescind the settlement contract but was merely expression that the contract should not be enforced at equity. It does not follow, he continues that the contract has no validity at law: only the enforceability, not the legal validity, of the contract was concluded against Van Tuyl by Dickey, so the settlement agreement to discontinue the counterclaims remains effective against Brookfield Bank-Johnson and the dismissal entered by Judge Murphy was a proper judgment.

This argument springs from a faulty premise. The logic of Dickey which predetermines this appeal is not the refusal to specifically enforce the settlement agreement, but that the absence of a good faith dispute deprived the compromise of any validity. The opinion denies specific performance not only because the sellers [but not Van Tuyl] conspired to work a financial hardship on Brookfield Bank-Johnson, but also because there was no colorable controversy among them [including Van Tuyl] and so no agreement subject to specific enforcement.

A compromise or settlement agreement is a distinctive species of contract, distinguished in each case by a forbearance to press a claim or the promise of such a forbearance. Corbin on Contracts, Vol. 1, § 140, p. 605. The existence of a bona fide dispute is an essential element of all valid compromise agreements. Holladay-Klotz Land and Lumber Co. v. Beekman Lumber Co., 136 Mo.App. 176, 116 S.W. 436, 437 (Mo.App.1909); 15A C.J.S. Compromise and Settlement § 2, p. 173. As in all contracts, consideration is the quiddity which binds the parties, and may take the form of a relinquishment of the right to sue on a disputed or doubtful claim. Landers v. Fox, 209 S.W. 287, 288 (Mo.App.1919); 15A C.J.S. Compromise and Settlement § 9, p. 197. Dickey has determined that the declaratory judgment action was not on a good faith dispute so the sellers [including Van Tuyl] gave up no claim by the dismissal of that action. Consequently, there was no consideration for the settlement agreement on that ground.

That ruling binds the question here on principles of estoppel by verdict whereby a judgment between the same parties in different causes of actions concludes them as to facts — ultimate or supportive — necessarily determined in the rendition of judgment. Abeles v. Wurdack, 285 S.W.2d 544, 546-547[l-3] (Mo.1955); Smith v. Preis, 396 S.W.2d 636, 640[4—7] (Mo.1965). Here there is a judgment — the denial of specific performance — between Van Tuyl and Brook-field Bank-Johnson, the same parties as on this appeal. And there is a fact — the absence of good faith dispute — an express ground for denial of specific performance of the settlement agreement. That finding of fact binds the parties here and the judgment which rests on that fact estops Van Tuyl from assertion of the contrary fact— the existence of a good faith dispute as consideration for the settlement agreement. Stickle v. Link, 511 S.W.2d 848, 855[4] (Mo.1974).

The parties are also bound on the more general principle of issue preclusion. The judgment of dismissal of the counterclaim, on appeal here, assumes the settlement agreement was a valid compromise of the sales agreements; that is, that there was consideration. That issue of mixed fact and law is also precluded by the specific performance judgment on the general rule of Restatement of the Law, Second, Judgments, Tentative Draft No. 1 (1973), § 68 Issue Preclusion:

When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or different claim. (Emphasis supplied.)

See, particularly, Comment and Illustration 1 to § 68.

A compromise agreement without consideration becomes a nullity. Tegethoff v. Sidmon, 158 S.W.2d 224, 228 (Mo.App.1942); 15 Am.Jur.2d Compromise and Settlement, § 37, p. 800. The effect of the invalidation is to restore the parties to their antecedent positions. The nullification of the settlement agreement by Dickey placed the parties in statu quo, that is, in the posture of the sales agreements. Accordingly, the Brookfield Bank-Johnson intervention petition to enforce an $80,000 note obligation from Dickey to Brookfield Bank against Van Tuyl as guarantor of that liability under the sales agreement remains alive.

Accordingly, the cause is reversed and remanded to the trial court with directions to set aside the order of dismissal and to determine the intervention petition of Johnson as successor in interest to the Brook-field Bank.

All concur.

      . Citizens Bank of Hopkins was sold to Thirty-Three Venturers, Inc. Bank of Craig was sold to Thirty-Four Venturers, Inc. Harris Banking Company was sold to Thirty-Five Venturers, Inc. Bank of Otterville was sold to Thirty-Six Venturers, Inc. Citizens Bank of Brookfield was sold to Thirty-Seven Venturers, Inc.

      . The intervention pleading was actually a joint petition by the Brookfield Bank and the Hopkins Bank. The latter intervenor sought to enforce the $100,000 promissory note liability of seller Dickey against all the other sellers, except — for some reason — Van Tuyl. That action does not bear on this appeal.

      . This opinion will use the term counterclaims to include the petitions for intervention by Hopkins Bank and Brookfield Bank-Johnson dismissed by the order of Judge Murphy. Only the dismissal of the intervention petition by Brookfield Bank-Johnson remains in issue on this appeal.

      .The petition for specific performance was commenced and tolerated as a proceeding independent of the declaratory judgment action although both proceedings arise from the same transaction, affect the same parties and involve common questions of fact and law. Counterclaim Rule 55.32 and consolidation of civil actions Rule 66.01 were designed to reduce such litigations to a single procedure.

      . The court denied specific performance of the settlement agreement against some of the sellers [but not Van Tuyl] for the additional reason that they conspired to hinder Johnson and his Venturers corporations by economic duress from performance under the sales agreements. This evidence was also the basis for the return of actual and punitive damages against the culpable sellers.

      . Van Tuyl points to the recitation of his testimony. in the Dickey opinion [l.c. 503] — “[Van Tuyl] thought that Johnson signed the December 15, 1971, [settlement] agreement because he was paying less money for the banks than he was obligated to do under the original sales agreements” — to establish consideration and his good faith for the settlement agreement. That recital merely describes his evidence and not the evaluation of the court as to its verity. The opinion clearly shows, however, that because Van Tuyl was not proved to be a conspirator against Brookfield Bank-Johnson, he was relieved of the damage award against him on that theory. The opinion shows just as clearly, however, that [l.c. 498[5]]: “Assuming for the purpose of their [including Van Tuyl] attempting to show that real disputes existed, the declaratory judgment suit . . . avails them nothing to aid their plea for specific performance of the December 15, 1971, agreement. All that appears with respect to the time of filing of the declaratory judgment suit under the evidence and a fair construction of the bank sales, is that appellants [including Van Tuyl], without any legitimate reason failed to perform their clear contractual obligations. There is lacking a bona fide dispute, and in that aspect there is no consideration for the December 15, 1971, agreement.”


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas KAMMERICH, Defendant-Appellant.
    No. KCD28159.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.

      James F. Crews, Kibbe, Crews & Gaw, Tipton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SWOFFORD, P. J., and PRITCH-ARD, C. J., and DIXON, J.
   DIXON, Judge.

Defendant appeals a conviction of statutory rape of his step-daughter found by a jury which fixed his punishment at two years imprisonment. Defendant claims error in the denial of a motion for acquittal at the close of the State’s evidence and that the State’s proof was at variance with the charge filed. The State offered the victim, P__ S-_ B-_, as a witness, and she was approximately eight months pregnant at the time she testified. During the month of September, 1974, approximately eight months prior to the trial, she had been living with her mother and step-father and siblings. She was 13 years old. She indicated she understood the meaning of sexual intercourse and testified to three or four occasions of sexual intercourse with the defendant, both at Tipton, Missouri, and at Fortuna, Missouri. On the night of September 28, 1974, she testified to being in bed with the defendant and her step-brother called the police. The State offered the testimony of a Deputy Sheriff concerning the giving of so-called Miranda warnings to the defendant; and, thereafter, the defendant’s statement was offered in evidence in which the defendant admitted to having had intercourse with the 13 year old “three or four times during the past year.” After the State rested, the defense called two witnesses, and the jury returned a verdict of guilty. Upon the filing of the appellant’s motion for new trial, allocution was granted, and defendant was sentenced to two years in the Department of Corrections.

The defendant’s first claim of error that the trial court erred in failing to direct a verdict at the close of the State’s evidence is not properly before this court. When a defendant has offered evidence in his own behalf after the court has denied his motion for judgment of acquittal at the close of the State’s case, any claim of error attaching to the motion is waived. State v. Plant, 532 S.W.2d 900, 901 (Mo.App.1976); State v. Lewis, 526 S.W.2d 49, 52 (Mo.App.1975).

Without transcript reference, the defendant asserts in his brief that the motion was renewed at the close of the evidence. The State contests this, and the State’s position is sustained by the transcript which reflects no such renewal of the motion. The main thrust of defendant’s first point is that the State failed to show he engaged in sexual relations with his step-daughter on the specific date of September 28, 1974, as alleged in the information. This is, in effect, the same basic argument that defendant makes with respect to the failure of the State to make a submissible ease which, as indicated, is not properly raised. The second point is not adequate under Rule 84.04(d), and the defendant’s reliance on § 546.080, RSMo 1969, is misplaced. As to matters covered by the statute, the statute permits a discretionary ruling of the court with respect to whether or not the variance is material. State v. Arenz, 340 Mo. 160, 100 S.W.2d 264, 266 (1936). But whether that statute covers the question of a variance in date is immaterial because it is clear that the rule in Missouri is that time is not of the essence in the offense of statutory rape. State v. Palmer, 306 S.W.2d 441, 444 (Mo.1957); State v. Belknap, 221 S.W. 39, 44 (Mo.1920). Proof that the crime was committed on some day other than that alleged, if it is within the period of limitations and before the charge, is sufficient. State v. Cook, 318 Mo. 1233, 3 S.W.2d 365, 368 (1928). The statute of limitations for statutory rape is three years. Section 541.200, RSMo 1969. Proof in this case is clear that both the victim and the defendant testified to three or four acts of intercourse prior to the filing of the information and within three years of its filing. The specific language of the defendant’s statement was three or four times during the past year and the prosecuting witness, in response to a question directed to the year period prior to September 28, 1974, said that such acts had occurred three or four times. She specifically stated penetration had occurred. Her competency was not in question, and her testimony alone was sufficient to sustain a conviction for statutory rape. State v. Neal, 484 S.W.2d 270, 272 (Mo.1972).

The judgment of conviction is affirmed.

All concur.


author: TURNAGE, Judge.

text:
    Fred A. BURKI, on behalf of United Retail Workers Union, himself and persons similarly situated, Respondent, v. William WIGGS, Appellant.
    No. KCD 28245.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.

      Charles W. Spooner, North Kansas City, for appellant.
    Terry Satterlee Watt, Law Offices of Arthur A. Benson, II, Kansas City, C. Anthony Packard, Chicago, Ill., for respondent.
    Before SOMERVILLE, P. J., and WAS-SERSTROM and TURNAGE, JJ.
   TURNAGE, Judge.

Fred Burki filed a petition for the registration of a foreign judgment against William Wiggs. Burki alleged he was filing the petition as the designated agent of United Retail Workers Union, an unincorporated association. The judgment was registered and on motion for summary judgment filed on behalf of Burki, the court entered a final judgment sustaining the registration.

On this appeal Wiggs raises a number of objections to the propriety of the court’s action in entering summary judgment. Affirmed.

The petition by which the Illinois judgment was sought to be registered in Missouri contained three counts. The first two counts contained allegations designed to show Wiggs was indebted to the Union and praying judgment against him. The third count alleged the existence of a judgment against Wiggs in Illinois upon the same indebtedness as set out in the first two counts.

The court entered its order registering the foreign judgment and thereafter Wiggs filed his answer. The court entered a summary judgment sustaining the registration of the foreign judgment but within thirty days after the entry of this judgment the court set the same aside. Thereafter Wiggs filed an amended answer. Burki filed a pleading denominated a “motion for reconsideration of plaintiff’s motion for summary judgment.” In support of this motion Burki filed affidavits signed by him and Anthony Packard, an attorney of Chicago who represented Burki in obtaining the Illinois judgment. Wiggs did not file any counter affidavits or any other matter showing the existence of any genuine issue for trial as provided in Rule 74.04(c). The court thereupon entered a summary judgment in which it found Burki was proceeding on Count III of his petition and by so doing had elected to abandon Counts I and II. The court sustained the registration of the Illinois judgment pursuant to Rule 74.-79.

Wiggs first challenges the propriety of the summary judgment by stating the rules of civil procedure make no provision for a “motion for reconsideration of a motion for summary judgment.” While Burki’s second motion for summary judgment did bear the appellation “motion for reconsideration” such language may be disregarded as surplusage. The court set aside the original summary judgment within the thirty days as allowed by Rule 75.01. Thereafter the situation was the same as if a motion for summary judgment had never been entered. When Burki filed his second motion for summary judgment, it was a new motion and was to be considered the same as if none had previously been filed.

Wiggs next raises the propriety of the affidavits filed in support of the second motion for summary judgment. He contends these affidavits were improperly filed because they were original affidavits and not the supplementary affidavits referred to in Rule 74.04(e). In urging this point, Wiggs relies upon the impropriety of the motion to reconsider which has already been answered. The affidavits filed in support of the second motion stand as original affidavits as provided in Rule 74.04(a).

Wiggs next urges the affidavits were improper because Burki failed to produce all of the books and records of the Union to support his affidavit. Wiggs filed nothing to raise any issue with reference to the facts stated in the affidavits of Burki and Packard. In the absence of any verified denial of the facts set forth in the affidavits, those facts are deemed admitted for the purpose of summary judgment. Waltz v. Cameron Mutual Insurance Company, 526 S.W.2d 340, 343[4, 5], (Mo.App.1975). Therefore, there was no necessity for Burki to file any records to prove the facts stated in his affidavit.

Wiggs next contends he set forth sufficient facts in his amended answer to exhibit the existence of a genuine issue of fact as to the validity of the Illinois judgment. As heretofore stated, Burki and Packard filed affidavits which showed the existence of a debt from Wiggs to the Union and which showed that a judgment was obtained against Wiggs upon this indebtedness in Illinois. As stated in Waltz, supra, the failure of Wiggs to file a verified denial of the facts stated in those affidavits results in those facts being taken as true.

Wiggs next contends the petition for the registration of a foreign judgment was improperly joined with Counts I and II in the petition. Counts I and II prayed for judgment against Wiggs in the same amount and upon the same cause of action which formed the basis of the Illinois judgment against Wiggs. The trial court found that Burki, by proceeding in summary judgment to have the registration of the Illinois judgment sustained, abandoned Counts I and II. In his brief Burki concedes this to be the case. In that situation an election of remedies was made and by filing a motion for summary judgment to sustain the registration of the foreign judgment, Burki elected to proceed on this remedy to the exclusion of his right to seek a judgment in Missouri upon the same obligation. Dombroski v. Cox, 431 S.W.2d 680, 682[3, 4] (Mo.App.1968). Having elected to procure the registration of the Illinois judgment in Missouri, Burki and the Union have now precluded themselves from proceeding on Counts I and II to seek an additional judgment against Wiggs upon the same cause of action.

Wiggs next contends this case was in fact a class action and the notice required by Rule 52.08(c)(2) was not given. Burki filed his affidavit in support of his motion in which he stated he was the agent for the Union and was authorized to file the petition for the registration of the foreign judgment. In the absence of any denial by Wiggs such fact is taken as true. The Union is an unincorporated association and under Rule 52.10 the court had the discretion to order notice be given to each member of the association. The court did not order any notice to be given, therefore, none was required.

Wiggs next contends there is a genuine issue of fact as to whether or not the Illinois court lacked jurisdiction over the person of Wiggs at the time the judgment was entered because in his brief Wiggs states he was a minor at that time. Again, Wiggs failed to file any verified denial of any facts presented to the court and there is nothing in the record before this court to indicate Wiggs was a minor at the time the Illinois judgment was entered. For that reason there is nothing presented for this court to consider on this point.

Wiggs lastly raises a question as to the validity of the Illinois judgment sought to be registered because of the existence at the time that judgment was entered of a previous judgment in Illinois by the same plaintiff against Wiggs. Again there is nothing in this record to indicate the existence of more than one judgment against Wiggs in Illinois. Absent such evidence, there is no basis upon which this court could review this contention.

The judgment is affirmed.

All concur.