text:
    Edward R. KOHN, Plaintiff-Appellant, v. Kimble A. COHN, and the Old Spaghetti Factory International, Inc., Defendants-Respondents.
    No. 39065.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 16, 1978.

      Morton R. Bearman and Sylvan Agat-stein, St. Louis, for plaintiff-appellant.
    Schmitz & Fischer, J. Peter Schmitz, Terry E. Brummer, Mary Stake Hawker, St. Louis, for defendants-respondents.
   GUNN, Presiding Judge.

Plaintiff, Edward R. Kohn, brought suit against defendant, Kimble A. Cohn (defendant) to collect real estate commissions allegedly due for services in procuring Old Spaghetti Factory International, Inc. (Spaghetti Factory) as a tenant in defendant’s building. A second count alleged a civil conspiracy between defendant and Spaghetti Factory to deprive plaintiff of his commissions. The trial court granted summary judgment in favor of defendant on the count seeking the real estate commissions. On Spaghetti Factory’s motion, the trial court dismissed the conspiracy count for failure to state a claim upon which relief could be granted. We affirm the trial court’s action.

Plaintiff concedes that if the summary judgment finding for defendant is upheld on the claim for real estate commissions, then the count alleging conspiracy to deprive him of his real estate commissions must necessarily fail. Therefore, we first consider the summary judgment ruling, and in so doing we indite some fundamental legal precepts relating to summary judgment.

We must accept as true all facts in evidence favorable to plaintiff’s right of recovery and resolve all reasonable doubts in his favor. Stanturf v. Sipes, 447 S.W.2d 558 (Mo.1969); Allen v. St. Luke’s Hosp., 532 S.W.2d 505 (Mo.App.1975); Hurwitz v. Rohm, 516 S.W.2d 33 (Mo.App.1974.); Pagan v. City of Kennett, 427 S.W.2d 251 (Mo.App.1968). If the evidence, when viewed in such light, presents no genuine issue as to any material fact and if the movant has carried his burden to show by unassailable evidence that he is entitled to judgment as a matter of' law, then the summary judgment must be sustained. Rule 74.04(c) VAMR; Allen v. St. Luke’s Hosp., supra; Pagan v. City of Kennett, supra; Brown v. Prudential Ins. Co., 375 S.W.2d 623 (Mo.App.1964). The existence of minor factual disputes does not bar summary judgment. To have such an effect the disputed issues must involve material facts, i. e., those which have legal probative force as to a controlling issue. Ware v. St. Louis Car Co., 384 S.W.2d 287 (Mo.App.1964).

The evidence before the trial court consisted of the pleadings, depositions from both plaintiff and defendant, documentary evidence consisting primarily of correspondence between the three parties, and affidavits from two local realtors which purported to set forth the custom in the real estate industry in the St. Louis area relating to liability for commissions.

The evidence viewed in the light most favorable to plaintiff established that plaintiff is a licensed real estate broker associated with his father’s firm, Louis T. Kohn Realty Co. In the spring of 1975 he was the managing agent for the Levee Building, located at Second and Delmar Streets, in the Laclede’s Landing area of St. Louis. As managing agent he actively sought potential tenants for that particular building. Plaintiff, though he had no formal agency agreement with any parties other than the owners of the Levee Building, also attempted to secure, buyers or lessees for the other property in the vicinity.

In early 1975, one of the owners of the Levee Building suggested that plaintiff inquire if Spaghetti Factory would be interested in locating one of its restaurants in his building. Following the suggestion, in early April, 1975, plaintiff visited the Denver, Colorado Spaghetti Factory and concluded that it was an operation suitable for the Laclede’s Landing area in St. Louis. On May 1, 1975, plaintiff telephoned an executive of Spaghetti Factory at its home office in Portland, Oregon to discuss the possibility of locating one of its restaurants in the Laclede’s Landing area. He then followed with a letter which briefly described the history, location and redevelopment plans for Laclede’s Landing and invited a representative of Spaghetti Factory to visit St. Louis.

Thereafter, Spaghetti Factory contacted plaintiff and arranged for a meeting in St. Louis. On May 22,1975, plaintiff met with three representatives of Spaghetti Factory in St. Louis at the Levee Building. After a brief inspection of the premises, the Spaghetti Factory representatives told plaintiff that the Levee Building would not suit their needs as they required a minimum of 10,000 square feet on a single floor for their restaurant facility. Plaintiff and his father then took the Spaghetti Factory representatives for a walking tour of the Laclede’s Landing area to look for suitable buildings. Upon seeing defendant’s building they concluded it would be a good prospect for the restaurant. Accordingly, the peripatetic fivesome — plaintiff, his father and the three executives from the Spaghetti Factory — went to defendant’s office without an appointment, introduced themselves and exchanged business cards. At this time defendant had no acquaintance with any of the parties. A tour of defendant’s building followed with the Spaghetti Factory representatives making a sales presentation of their organization as a suitable tenant for defendant’s building. At the close of the meeting plaintiff asked defendant to send him a copy of the building’s floor plan. Defendant then asked how he could contact the Spaghetti Factory, to which plaintiff responded, “I [plaintiff] said you contact me, I’ll get ahold of Spaghetti Factory.” Plaintiff ultimately sent the Spaghetti Factory the copy of defendant’s building floor plan which had been supplied by defendant, along with a copy of the Levee Building floor plan, in spite of the fact that use of the latter by the Spaghetti Factory had already been rejected.

Plaintiff and defendant had no further contact until June 26, 1975 when the two met with a Mr. Ed Fisher. A general discussion was held regarding possible use of the defendant’s building in connection with the overall redevelopment of the Laclede’s Landing area. The record is recondite as to the identity of Mr. Fisher. He apparently had no association with either defendant or plaintiff, but according to plaintiff, “Mr. Fisher completely took over the conversation.” Plaintiff testified that at the June 26 meeting he informed defendant that he was attempting to secure a tenant for defendant’s building and that he would contact defendant if he found such a tenant. There is nothing in the record to indicate acceptance by defendant of plaintiff’s voluntary offer. At the close of the June 26 meeting, defendant mentioned to plaintiff that he would be making a trip to Portland, Oregon and inquired whether plaintiff would object to defendant’s speaking directly with Spaghetti Factory officials. Plaintiff stated he had no objection, but defendant did not go to Portland or initiate further contact with Spaghetti Factory officials. After the June 26 meeting, plaintiff and defendant had no further contact.

In October, 1975 plaintiff and Spaghetti Factory officials met once more to discuss locating in the Laclede’s Landing area, but during the week following the October meeting, plaintiff received a letter dated October 29, 1975 from Spaghetti Factory advising that the Levee Building would not be satisfactory for their needs and that plaintiff should expend no more time on their behalf. Plaintiff had no further communication with the Spaghetti Factory.

After the May 22, 1975 meeting, when defendant first met plaintiff and Spaghetti Factory officials, he had no further contact with the latter until October 23, 1975 when Spaghetti Factory representatives unexpectedly appeared at his office to discuss rental of facilities. Defendant quoted a rental price’which he considered to be unreasonably excessive. The next contact by the defendant and Spaghetti Factory was December, 1975 when defendant, who was an architect, made a proposal of a restaurant design which would meet Spaghetti Factory needs. A refined plan was presented in Portland, Oregon on January 27,1976, and on September 16,1976, a five-plus year lease with gross rentals at $370,500 was signed by defendant and Spaghetti Factory. Although defendant had had no contact with plaintiff from the June 26, 1975 meeting, plaintiff filed this suit for commissions on August 23,1976 after reading in a newspaper that a lease of defendant’s property to Spaghetti Factory was imminent.

Count one of plaintiff’s petition charges that on May 22, 1975, defendant “orally employed and retained plaintiff as the agent of . [defendant] to procure and negotiate on its behalf, a lease of its aforesaid land and improvements.” Plaintiff sought commissions under the alleged agreement. But in his deposition, plaintiff patently conveys that he never discussed any commission at any time with anyone. Plaintiff bases his claim on his past experiences with property he has managed.

Defendant filed a motion for summary judgment, and Spaghetti Factory filed a motion to dismiss the conspiracy count against it for failure to state a claim. The trial court granted both motions.

Plaintiff’s primary argument on appeal is that when the evidence is viewed in the light most favorable to his position, there exists sufficient evidence to create a genuine issue as to whether he and defendant entered into an implied contract of agency. We hold that as a matter of law there was no evidence of an agreement by defendant to employ plaintiff as his agent. Therefore, the summary judgment entered was proper. In so holding we are mindful that summary judgment is a drastic remedy which should be exercised with great caution. We believe, however, that this was a proper case to grant a judgment for defendant thereby relieving all parties of the delay and expense of a formal trial in which the court would ultimately be compelled to render its judgment in defendant’s favor as a matter of law.

The law in this state regarding the liability of an owner of real estate to pay commission to a real estate broker for services rendered in connection with the sale or lease of his property is well established. The broker has the burden to prove that an employment relationship existed between the owner and himself and that he was the efficient or procuring cause of the sale. If both the contract and the causation are established, the broker is entitled to reasonable compensation for his services. Smith v. Piper, 423 S.W.2d 22 (Mo.App. 1967); Balientine v. Mercer, 130 Mo.App. 605, 109 S.W. 1037 (1908). In the absence of a contract of employment between the broker and the owner, the owner is not obligated to pay a commission even if the broker was the efficient cause of a sale which is later consummated. Windsor v. Internationa] Life Ins. Co., 325 Mo. 772, 29 S.W.2d 1112 (1930); Longmire v. Diagraph-Bradley Stencil Mach. Corp., 176 S.W.2d 635 (Mo.App.1944); Balientine v. Mercer, supra. See also Restatement (2d) of Agency § 441, comment (a). A broker who is a mere volunteer is entitled to no compensation for services gratuitously rendered. A contract of employment is the essential element for recovery. Hoover v. Whisner, 373 S.W.2d 176 (Mo.App.1963). “The mere fact that a broker without request, but of his own volition, brings a customer to a vendor, will not of itself imply an agreement on the part of the vendor to pay for services thus thrust upon him. Officious intermeddling in the business affairs of others, though it may produce valuable results to the interested parties, should go unrewarded.” Balientine v. Mercer, supra 109 S.W. at 1040. See also Restatement (2d) of Agency § 441, comment (c). Thus any information or leads furnished by a volunteer broker, not employed by the owner, may be utilized by the owner without incurring liability for commission. Windsor v. International Life Ins. Co., supra.

To establish the agency contract, it must appear that the owner authorized the broker to produce a buyer or lessee and that the broker agreed to do so under such circumstances that the owner had reason to know that the broker’s services were not offered gratuitously but were undertaken with an expectation of compensation. Smith v. Piper, supra. The contract of employment may be express or implied, but its existence must be established before a broker may enforce his claim for compensation. Windsor v. International Life Ins. Co., supra; Hoover v. Whisner, supra; A. J. Meyer & Co. v. Schulte, 189 S.W.2d 183 (Mo. App.1945). It is essential that there be an actual meeting of the minds of the parties involved that they knowingly and understandingly enter into mutually enforceable obligations. Windsor v. International Life Ins. Co., supra. Whether the agreement reached is termed express or implied has no substantive effect but merely refers to the evidence by which the agreement is shown. Where the direct words of the parties — either oral or written — acknowledge their agreement, the contract is express. Where, however, the contract is inferred from the acts and conduct of the parties, in light of the subject matter and surrounding circumstances, it is implied. Kosher Zion Sausage Co. v. Roodman’s Inc., 442 S.W.2d 543 (Mo. App.1969).

Although plaintiff has pleaded an express contract the record is destitute of evidence of an oral or written agency agreement between him and defendant. Nor is there evidence of an implied agency contract—the theory plaintiff adopts in his brief on appeal. In order to raise an implied contract, the services rendered by the broker must have been performed under such circumstances that the recipient had reason to know that they were not offered gratuitously nor performed for some other person but with the expectation of compensation from the recipient. Further, the services rendered must have been beneficial to the person sought to be held liable. Hoover v. Whisner, supra; Bennett v. Adams, 362 S.W.2d 277 (Mo.App.1962). Where a broker approaches an owner and negotiates for the sale or lease of his property, no promise to pay for the broker’s voluntary services will be implied if the owner is justified under the circumstances in presuming that the broker represents the prospective purchaser or lessee. Windsor v. International Life Ins. Co., supra.

Under the circumstances of this case there is no showing that defendant did or reasonably could have anticipated that plaintiff was performing services exclusively for him with the expectation of compensation therefor. Plaintiff accompanied representatives of Spaghetti Factory into defendant’s office voluntarily and without invitation. Although plaintiff introduced himself as a real estate broker, he and defendant had not previously met, and there was no prior arrangement by which plaintiff, or his real estate firm, had authority to solicit potential tenants on defendant’s behalf. A formal listing agreement was never discussed nor did plaintiff ever broach the subject of commissions for his services. Plaintiff was without investiture to serve defendant in any capacity. He is fain to collect a substantial commission solely on the basis that he, without request, introduced defendant to parties with whom defendant subsequently negotiated a lease—an insuperable challenge. To recover, a broker must do more. “It is important, of course, that an owner of property be not permitted to profit by the labors of others in procuring, at the owner’s request, a purchaser for his property, but it is equally important that such others be not permitted to make themselves agents by volunteering to act for the owner without procuring authority, either express or implied, from the owner for that purpose.” A. J. Meyer & Co. v. Schulte, supra at 190.

Plaintiff’s theory of recovery based on the affidavits of his fellow real estate brokers—to the effect that the custom in the real estate industry in the St. Louis area is that when a real estate broker is “involved” in the sale or lease of property, the vendor is the party responsible for all real estate commissions—is unavailing to him and is dissonant with the prevailing law. A custom which is contrary to established principles of law will not be given recognition. The effect of a custom upon contractual obligations is dependent upon the existence of an actual contract between the parties. A custom is not a substitute for a contract; thus, it may not be invoked to create a contract where none exists. Leonard v. Dougherty, 221 Mo.App. 1056, 296 S.W. 263 (1927); Piper v. Allen, 219 S.W. 98 (Mo.App.1920). Unless a valid contract is first shown, any evidence relating to custom or usage is immaterial and irrelevant to establish contract liability. 21 Am. Jur.2d Customs and Usages § 21 (1965). We have previously held that no contract of agency existed between plaintiff and defendant. The evidence of custom cannot counteract this fatal defect.

Holding as we do on the issue of the propriety of the summary judgment, we must also sustain the judgment of the court dismissing plaintiff’s count against the Spaghetti Factory.

The judgment is affirmed.

WEIER and KELLY, JJ., concur.

      . While visiting in Denver, Colorado in late September or early October, 1975, defendant ate dinner at a Spaghetti Factory restaurant, primarily out of curiosity as to the type of operation that was conducted, and concluded that it was not what he wanted in the Laclede’s Landing area; that he preferred a more sophisticated type of culinary establishment for his building.

      . “Q. Did you have any understanding about a commission, I mean was there any conversation about a commission between you and any representative of Old Spaghetti?
      A. [Plaintiff] No.
      Q. When they came to town, what do you think their understanding was about commission?
      A. We never discussed commission and i feel quite confident they felt the commission would be paid by the lessor.
      Q. Did you have any discussion with Kim-ble Cohn [defendant] about a commission?
      A. I did not discuss commission at that point because we had nothing to discuss. We had no lease to work with.
      Q. Did you ever discuss a commission with him at any time?
      A. The situation never arose where we had it to discuss. We had no, we had a beginning and the ingredients of a deal but we did not have a deal.
      Q. All right, how much commission are you, do you feel you’re entitled to on this transaction with Old Spaghetti Factory?
      A. Based on prior experience with lease commissions and with like, for instance the shopping centers that I manage, I receive five per cent of the gross rental of the term of the lease and on most occasions on any extensions thereof, but I do not receive commission on percentage rental.
      Q. Is that what you’re claiming in this case?
      A. Have to start somewhere.”

      .In count 1, *! 5 of his first amended petition plaintiff alleges that, “[o]n or about May 22, 1975, Defendant Cohn orally employed and retained Plaintiff as the agent of the aforesaid limited partnership to procure and negotiate on its behalf, a lease of its aforesaid land and improvements.” As such, he pleads an express contract. In his brief, however, plaintiff argues that there was an implied rather than express contract of employment. This variance is not fatal to plaintiff’s case. Summary judgment may not be entered if there is any theory within the scope of the pleadings or within the broad scope of the provable evidence as revealed by the affidavits, depositions and admissions which, if believed, would support recovery for the nonmoving party. Stanturf v. Sipes, supra.

      . A volunteer has been defined as one who proceeds without an express or implied contract. Smith v. Piper, supra.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Willis Louis RODGERS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39319.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 23, 1978.
    Neal P. Murphy, Clayton, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Cletus E. Rudolph, Asst. Circuit Atty., St. Louis, for respondent.
   PER CURIAM.

This is an appeal from an order of the circuit court of the City of St. Louis denying petitioner’s motion for a writ of error coram nobis without an evidentiary hearing and without the appointment of counsel. We affirm.

Appellant’s motion for a writ of error coram nobis sought to vacate judgments of conviction entered on guilty pleas to the offenses of assault with intent to maim without malice, § 559.190, RSMo. and stealing from a person, § 560.156, RSMo. Both charges arose out of the same set of circumstances involving the theft of a coat from a boy on the way home from a party.

The state had originally filed two infor-mations charging appellant with assault with intent to maim with malice, § 559.180, RSMo. and robbery in the first degree, § 560.120, RSMo. Following arraignment and pleas of not guilty to these charges, the causes proceeded to trial, a jury panel was sworn and the state produced evidence. Appellant was represented by retained counsel. Before completion of the state’s evidence, both parties came before the court and the state announced its election to proceed on lesser included offenses of assault with intent to maim without malice and stealing from a person, and appellant stated his desire to enter guilty pleas to the lesser charges.

Before permitting appellant to withdraw his pleas of not guilty, the court satisfied itself as to the voluntary and understanding nature of the pleas. The pleas were accepted by the court on May 27, 1971. On August 6, 1971, appellant was sentenced to two concurrent terms of three years in the custody of the Department of Corrections, execution of which was suspended, and the court placed appellant on probation for a period of four years.

In a court order filed November 16,1973, the court acknowledged that it had been notified by the Missouri Board of Probation and Parole that appellant had violated the terms and conditions of his probation by committing the offense of first degree robbery by means of a dangerous and deadly weapon. Appellant admitted his conviction for that offense and the court found he had violated a condition of his probation. Appellant’s probation was revoked and he was ordered to begin serving his concurrent three-year sentences.

On December 3,1976, after appellant had served the three-year sentences imposed upon his guilty pleas, appellant filed his motion for a writ of error coram nobis to vacate the judgments and sentences entered on the guilty pleas. The motion claims that the convictions were used “against petitioner to enhance the punishment” he subsequently received on his robbery conviction.

Three grounds for attacking the convictions were set forth in his motion for error coram nobis. He claimed his due process rights under the United States and Missouri constitutions were violated when the infor-mations against him were amended to different charges and distinct offenses from those charged in the original information. The second ground was that the trial court had no subject matter jurisdiction over the charge. The third ground alleged that appellant’s Fifth Amendment rights were violated in that he was subjected to double jeopardy when the state charged him with two separate crimes resulting from the same “act of force” even though the crimes had no “distinct” elements. In support of these grounds appellant indicated he would introduce into evidence records of the court and the Missouri Highway Patrol as well as his own testimony that he had no knowledge of the law and did not knowingly and intelligently waive his right to an appeal.

The trial court filed findings of fact and conclusions of law and entered an order denying the petition without an evidentiary hearing and without appointment of counsel. The court found that the allegations contained in the petition were either refuted by the record or would not entitle him to relief even if true, and further found that (1) he had not established sufficient detriment to support the writ and (2) he had waited too long a time to bring the allegations.

On this appeal, through appellate counsel, he makes one point. Appellant contends that the trial court erred in not appointing counsel to assist him in drafting his petition for writ of error coram nobis filed in the trial court. While admitting that the petition does not show such facts which would give a basis for granting the writ of error coram nobis, the thrust of his contention is that he is entitled to have counsel appointed in a writ of error coram nobis as in cases under Rule 27.26. He contends that under Rule 27.26 “the Supreme Court has afforded to an indigent movant the RIGHT to counsel when the movant seeks to have judgment and sentence vacated under Supreme Court Rule 27.26,” but a petitioner who files a writ of error coram nobis is not entitled to the same right. Thus, he argues, such a situation violates equal protection. And he urges that “a new rule” should be adopted to appoint counsel whenever a petitioner or movant indicates an “intention” to file a motion or petition. Such a rule, he argues, would reduce the number of petitions or motions because “[i]f the petitioner or movant could not relate to his attorney facts which, if true, would entitle him to relief the petition or motion would not be filed.”

Petitioner is in error when he contends that a movant who files a 27.26 motion is entitled to counsel as of right. There is no such constitutional mandate. Rule 27.26 is conditional. There is no constitutional, per se, right to counsel in every 27.26 proceeding. Winston v. State, 533 S.W.2d 709, 714-715 (Mo.App.1976). Neither is there a per se constitutional right .to counsel in every case where a petition for writ of error coram nobis is filed on the grounds of indigency. Powell v. State, 495 S.W.2d 633, 635 (Mo. banc 1973). A petitioner in coram nobis is treated the same as a movant in a 27.26 proceeding. There is no violation of equal protection. The right to relief in coram nobis is not absolute and is not allowed as a matter of right or routine. The writ will issue if it is made to appear with reasonable certainty that some error of fact not apparent on the record was unknown to the applicant and that he will receive some benefit from the relief sought. Arnold v. State, 552 S.W.2d 286, 291 (Mo.App.1977); Cook v. State, 543 S.W.2d 309, 311 (Mo.App.1976). Appellant admits in his brief that “[a] brief look at the appellant’s petition shows that such facts were not plead and gave the Court no basis for a granting of relief.”

Appellant’s plea that a new rule be adopted to require appointment of counsel is misdirected. The Supreme Court of Missouri has rule-making power. Article V, Section 5, Mo.Const.

The judgment is affirmed.

All the Judges concur.


author: STEPHAN, Judge.

text:
    STATE of Missouri ex rel. CITY OF CAPE GIRARDEAU, Plaintiff-Appellant, v. PUBLIC SERVICE COMMISSION of Missouri, Defendant-Respondent, Missouri Utilities Company, Intervenor-Appellant.
    No. 38950.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 30, 1978.

      Thomas M. Utterback, Robert C. Fick, Cape Girardeau, for plaintiff-appellant.
    Thomas A. Hughes, Missouri Public Service Comm., W. R. England, III, Jefferson City, for defendant-respondent.
    Jack L. Oliver, Cape Girardeau, for inter-venor-appellant.
   STEPHAN, Judge.

This appeal arises from an order of the Public Service Commission of December 2, 1975, granting a new electrical rate schedule for the Missouri Utilities Company’s Southeast Missouri Division, in which the relator City of Cape Girardeau is located. The city intervened early in the hearings of the case, filing a complaint with the commission that substantial discrimination existed in the electrical rates paid by users in the city compared with those paid by other users in the southeast division. The complaint was treated as one of the issues in the rate-setting hearings. When the commission entered its order granting the rate increases requested by the company, it specifically found that “the evidence adduced at the hearing was not sufficient to merit a rate design change as proposed by the City .” The Cape Girardeau Court of Common Pleas affirmed the commission’s order and appeal to this court followed. Although the city presented some testimony at the hearings in opposition to the amount of the proposed rate increase, the thrust of its argument there, and the only issue pursued on appeal, concerned the rate design, the allocation of the total charge among the different areas in the division. The city bases its claim of discrimination on § 393.130(3), RSMo 1969:

“No . . . electrical corporation . shall make or grant any undue or unreasonable preference or advantage to any person, corporation or locality, or to any particular description of service in any respect whatsoever . . . ”

The city contends that the only relevant factor in determining a fair utility rate is the cost of the service to the user. When that is determined, the utility company may charge all users a uniform fair rate of return. The city argues that it is possible to provide electricity in Cape Girardeau at a lower cost per customer than in the rest of the southeast division and that under § 393.130(3) this lower cost of service must therefore be reflected by lower rates within the city.

In support of this position, the city introduced the testimony of a consulting engineer, Mr. William A. Ford, at the hearings. Ford testified that the division encompasses eight counties in southeast Missouri, in which are located eight communities with a population over 2,500 and thirty-three with a population under 2,500. Of these, Cape Girardeau is by far the largest with a population of over 31,000. There are currently three residential and three commercial rate schedules available in the division (in addition to some special-use rates, not challenged in the hearings). Rates R1 and Cl are available in communities with a population greater than 2,500; R2 and C2 in communities under 2,500; and R3 and C3 in rural areas. Ford further testified that in servicing a large, compact area relatively dense with customers, it is possible to achieve an “economy of size”, which results in a disparity in the cost of service even among the communities serviced under the R1 and Cl schedules.

In support of that argument, Ford further testified, inter alia, that:

(1) The city area provided a rate of return of 5.97% in 1974 compared to 3.44% for the rest of the division. The overall rate of return for the division was 4.35%. Charges to city area customers could have been reduced by $372,588 to produce a return of 4.35%, while the charges to the rest of the division would have had to be increased by $326,495 to provide such return;
(2) Under the proposed new rates, the city as a whole would pay an additional $1,801,318 per year for a rate of return of 9.37%. The rest of the division would pay an additional $2,151,047 which would provide the company with a return of 8.18%. If the city returned a similar rate, charges to city area customers would increase only $1,396,217 per year;
(3) The city produced only 45.6% of the company’s electric revenues in the division in 1974, yet accounted for 64.3% of the net income before taxes;
(4) The city used 49.5% of the electricity sold in the division, yet incurred only 43.7% of the demand charge due to the lower wholesale power cost.

In short, Ford contended that these figures show that the city, with approximately four times as many customers as any other division community, is in fact subsidizing the company’s operations in the division’s more diffused areas, and he therefore advocated a new rate classification for the city. As noted, the commission did not believe that the evidence justified such a change.

On appeal our review of the order of the commission is restricted to a determination of whether such order was lawful and reasonable. Art. V, § 22, Constitution of Mo.; § 386.510, RSMo Supp. 1973; State ex rel. Beaufort Transfer Co. v. Clark, 504 S.W.2d 216, 217 (Mo.App.1973); State ex rel. Hotel Continental v. Burton, 334 S.W.2d 75, 78 (Mo.1960). “The question of the order’s ‘lawfulness’ turns on whether the commission had statutory authority to issue it. The question of the order’s ‘reasonableness’ turns on whether it is supported by the competent and substantial evidence on the whole record.” State ex rel. Ozark Electric Cooperative v. Public Service Commission, 527 S.W.2d 390, 392 (Mo.App.1975).

The city here challenges the commission’s order on both grounds. It first contends that the commission violated the statutory duty imposed on it by § 393.130(3), RSMo 1969, to establish equitable rates in that it shifted the burden of designing those rates to the city and it based its decision in part on certain “social factors” which were irrelevant to a consideration of the equity of the division’s rate schedules.

The city maintains that although its evidence proved a lower cost of service for the city area, the commission refused to alter the existing rate design because it found it “impossible to determine which customer’s rates might be excessive”; and that under § 393.130(3) the burden of this determination, no matter how onerous, rests with the commission not the city, once the city proved rate discrimination. However, what the city has seemingly chosen ' to ignore throughout these proceedings is that § 393.-130(3) forbids discrimination against persons as well as locations. The commission’s order and report make it clear that it was aware of this dual obligation and in this case chose to emphasize equity to the individual user by maintaining a rate system designed on the basis of cost to a class of customer rather than to area. For this reason we view the issue as a question of reasonableness, and will treat it with more detail infra. We cannot hold as a matter of law that the city was entitled to the relief it sought merely by showing a lower cost of service to the city area as a whole.

The city further contends that the commission’s order is unlawful because the commission admitted and considered evidence that a large percentage of customers in the division’s rural areas were elderly people living on low fixed incomes and that such customers would suffer greatly should their rates be raised due to a decrease in the city’s rates. This, the city argues, was improper because the only relevant factor in determining fair rates is cost of service. The question, however, is merely one of competency of the evidence and does not involve the issue of the commission’s statutory authority to issue its order. If that order is supported by competent and substantial evidence on the whole record, it will not be invalidated by the admission of immaterial evidence, particularly where, as here, such evidence is not treated by the commission as the foundation for its ruling.

Upon reviewing the transcript, we hold that the record does so support the commission’s order even if we accept witness Ford’s testimony as conclusive evidence of a lower cost of service for the Cape Girardeau area. Subsequent to Ford’s testimony, a company spokesman, Mr. Stanley C. Whiteaker, testified that the difference in cost between the city and the rest of the division was to a great extent due to the fact that a large industrial customer within the city, the Marquette Cement Company, was reducing its purchase of energy during peak periods through prior agreement with the appellant. This reduction resulted in a lower cost of service allocated to Marquette and, of course, to the city as a whole. Whiteaker estimated that some $150,000 to $200,000 of the cost difference between the city and the rest of the division was attributable to this reduction by one industrial user. Therefore, if the commission believed the testimony of both Ford and Whiteaker, as it reasonably could have, it would have found itself in a situation in which it was impossible not to discriminate either by class of customer or by location. If the commission implemented the city’s proposed rate design it would be passing on to all residential customers within the city the benefits derived from the consumption of one user; it would be establishing residential rates which would not reflect the true cost to those individual customers. In the commission’s judgment the more equitable solution to the conflict of the demands of § 393.130(3) was to maintain rates determined by cost of service to the company’s different classes of customers. As noted, the city throughout the proceedings only attempted to prove discrimination to its area; it made no attempt to explain why the approach taken by the commission was less reasonable than that which it advocated. The city has therefore obviously not met the burden imposed by § 386.430, RSMo 1969, of showing by “clear and satisfactory evidence” that the commission’s construction of the guidelines of § 393.130(3) was unreasonable.

Although the savings attributable to Marquette do not account for the entire difference in the cost of service as between the city area and the rest of the division, the city failed to show the true cost of service to customers within its area. Failing that, the city did not establish that it is unreasonable to group the city area customers with other customers within the division who pay the R1 and Cl rates.

The judgment of the trial court is, accordingly, affirmed.

STEWART, P. J., and REINHARD, J., concur.

      . This case, Public Service Commission No. 18,352, was heard jointly before the commission with PSC cases Nos. 18,246 and 18,371, which sought increases in the natural gas rates for the company’s central and southeast division and in the water rates for Cape Girardeau. This appeal, however, concerns only the electric rates in the southeast division.

      . Ford’s statistical evidence came from a report furnished by the company showing the allocation of revenues, operating costs, taxes, etc., for its Cape Girardeau sales area and the rest of the division. The sales area extends slightly beyond the city limits to include a small section of rural and seml-rural land. The company was not able to provide a breakdown strictly along city lines. However, Ford testified, statistically the inclusion of this small amount of land will have little effect on the overall figures presented. '

      . See State ex rel. Potashnick Truck Service v. Public Service Commission, 129 S.W.2d 69, 74 (Mo.App.1939) where it is said:
      “As we have pointed out, the ultimate question for the court is whether, on the whole record, the Commission’s order may be said to be reasonable and lawful, and while the court is authorized by statute (Sec. 5234, supra) to reverse an order to the end that the Commission may receive testimony which it has improperly excluded, there is no provision of law for reversing an order by reason of the improper admission of evidence, unless it is made to appear that the order was wholly based upon such evidence which, by reason of its incompetency, lacked all probative value.”

      . This burden has been said to require a party “to show beyond reasonable debate” that it is entitled to the relief it seeks in order to warrant reversal of commission action on judicial review. State ex rel. Laclede Gas Co. v. Public Service Commission, 535 S.W.2d 561, 573-574 (Mo.App.1976).


author: REINHARD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert ELLIS, Defendant-Appellant..
    No. 39204.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 30, 1978.

      Robert C. Babione, Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Jefferson City, George A. Peach, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   REINHARD, Judge.

Defendant appeals from a conviction by a jury of two counts of murder in the first degree, two counts of robbery in the first degree, and one count of exhibiting a deadly weapon in a rude, angry and threatening manner. Under the Second Offender Act the court assessed his punishment at life imprisonment on each of the two counts of murder, and twenty-five years imprisonment on each count of robbery, to run consecutively, and five years imprisonment on the deadly weapon charge, to run concurrently.

Prom the evidence, a jury could have found that on January 23, 1975, defendant entered Boyer’s Food Shop located in the City of St. Louis and robbed the manager of the store, Christopher Aiello, in the amount of $100.00 to $110.00; that defendant killed Jimmy Skaggs and Christopher Aiello; that Ralph Burton came into the store after defendant had shot Skaggs and Aiello and defendant then robbed Burton of his billfold and its contents; and that shortly thereafter immediately before his apprehension he pulled a gun on an officer.

Burton gave police a description of the assailant. The defendant, fitting the description, was observed walking several blocks from the store. A brown bag containing $106.00 in currency, as well as the wallets of Skaggs and Burton, were found on his person. Defendant was taken to Burton who identified him as the man who had robbed him earlier. Defendant confessed to the crime. An expert testified the bullets taken from the victims’ bodies were fired from the gun defendant brandished in the presence of the officer. Samples taken from defendant’s hands disclosed that he had handled and discharged a gun that morning.

The defendant contends that the trial court erred in refusing to allow him to call his mother, Rosetta Hardin, as a witness. Under Supreme Court Rules 25.31, 25.34, 25.36, and 25.37, the State requested that the defendant disclose: “The names and last known addresses of persons, other than defendant, who defendant intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memoranda reporting or summarizing part or all of their oral statements; . . . .” The defendant indicated that he would be the only witness for the defense. At the beginning of the trial, the parties agreed that all witnesses except defendant should be excluded from the courtroom.

After the State informed the court that it had closed its case, but before doing so on the record, defense counsel asked the court for leave to call two witnesses. The attorney said defendant had just informed him that he wanted to use these witnesses. He said that he would like to develop for the court evidence as to when this information became available to defendant. One witness was Calvin Lonzo and one was defendant’s mother. Out of the presence of the jury, Lonzo and defendant testified that although they had been in the same cell on the day of defendant’s arrest, they had not seen each other nor had they known the other’s name until this date. Defendant contended that his confession was not voluntary and that he had confessed under force of beatings by the officers. Lonzo’s testimony indicated that defendant appeared to have sustained recent injuries on being brought to the cell. No offer of proof was made as to the proposed testimony of the defendant’s mother.

The court permitted Lonzo to testify but denied defendant’s request to call his mother on two grounds: (1) that she had not been disclosed in accordance with Rule 25.-34; and (2) that she had sat in the courtroom during the trial in violation of the exclusionary rule.

In State v. Burton, 544 S.W.2d 60 (Mo. App.1976), defendant attempted to call his mother as a witness on the second day of the trial. The State objected on the grounds that defendant had not disclosed her as a witness. The court refused to permit her testimony. On appeal the court held, “Defendant’s failure to disclose Mrs. Burton in the course of his ‘complete disclosure’ was a failure to comply with Rule 25.34(A)(2), V.A.M.R., requiring a defendant to disclose all persons whom defendant intends to call as witnesses.” Id. at 63.

In Burton, defense counsel conceded that he had been aware before trial that Mrs. Burton was a possible witness. The defendant here attempts to distinguish the circumstances in Burton from those in this case by arguing that he had not intended to call his mother as a witness originally and had notified the State as soon as he decided to call her to the stand.

Determination of compliance with the disclosure rule cannot be based upon a party’s subjective intent. No offer of proof was made and the trial court had no information before it regarding the nature of the undisclosed witness’ proposed testimony or what circumstances had arisen to require the testimony. Supreme Court Rule 25.45 vests the trial court with discretion in respect to the sanction to impose upon a party’s failure to comply with the discovery rules. In the circumstances shown here, we find there was no fundamental unfairness to the defendant and no abuse of the court’s discretion in this matter.

It is unnecessary to determine whether violation of the exclusionary rule justified the court’s prohibiting the testimony of defendant’s mother. There was no suggestion of impropriety on the part of the defense attorney, and ordinarily under such circumstances a violation of the exclusionary rule does not disqualify a witness. State v. Shay, 339 S.W.2d 799, 802 (Mo.1960). Certainly with no offer of- proof having been made, the court might well have been justified in preventing her testimony. See State v. Neria, 526 S.W.2d 396, 399 (Mo. App.1975).

Defendant next contends the court committed- plain error in permitting the prosecutor to cross-examine defendant about the length of time he had served in prison. On direct examination defense counsel asked defendant of what crime he-had been convicted. Defendant responded, “Robbing in 1972 with a DDW.” Counsel then asked, “How long did you spend there (Missouri State Penitentiary)?” Answer, “I came home December 16, 1974.”

On cross-examination, the State elicited the following responses from defendant:

“Q. [by Mr. Moss] As I understand it, Mr. Ellis, you have been convicted twice of armed robbery.
A. Yes, I have.
Q. And what else have you been convicted of?
A. As younger or grown or as a grown-up?
Q. When did you go to the penitentiary before?
A. Here in Missouri?
Q. No. “
A. I went to the penitentiary, my first time going to the penitentiary was in ’60 — I believe ’68.
Q. What for?
A. Auto theft and burglary and escape.
Q. How much time did you get?
A. Five years, three to five years.
Q. How much time did you get the last time you were sent up?
A. Five years.”

Defendant neither objected to the State’s questions nor raised the point in his motion for a new trial. The point has not been preserved for. appellate review. State v. Maxwell, 465 S.W.2d 562, 563 (Mo.1971). However, defendant asks that we consider it under the Plain Error Rule. Invocation of Rule 27.20(c) is to be done on a case-by-case basis to avoid “manifest injustice or miscarriage of justice.” State v. Wendell, 542 S.W.2d 339, 343 (Mo.App.1976).

In this case, the defendant opened up the matter of punishment during direct examination in which defendant revealed how much time he had served on a prior conviction. Since defendant testified as to the time served on this prior conviction, the State should have been allowed to ask the length of sentence he actually received.

Defendant did not voluntarily disclose all of his prior convictions. On cross-examination, the State properly asked what other convictions he had received, and when he responded, the State asked the length of sentences for these convictions. We cannot say the State’s questioning on the issue of punishment for those convictions disclosed on cross-examination was improper in view of the fact that the matter of punishment initially was raised on direct examination. We find no “manifest injustice”.

The testimony indicates strong evidence of guilt, and when guilt is established by overwhelming evidence no injustice or miscarriage of justice will result from refusal to invoke the plain error rule. State v. Hurtt, 509 S.W.2d 14, 15 (Mo.1974).

We also decline to invoke the plain error rule as to defendant’s complaints about the State’s closing argument. He claims that the court committed plain error in permitting the prosecution in closing argument to state that “defendant’s ‘mentality’ was that of one who ‘gets even’ with witnesses; that the defendant was a ‘liar’; and that defendant was an ‘admitted junkie’ ”. Again the defendant did not object to the statements at trial and did not raise the issue in his motion for a new trial. As stated in State v. Henderson, 530 S.W.2d 382, 384 (Mo.App.1975), “When a defendant offers himself as a witness in his own behalf his testimony is subject to the same arguments on the issue of credibility as is any other witness.”

We have considered the argument in the light of the evidence presented and we conclude that the remarks do not meet the test of plain error. State v. Hill, 539 S.W.2d 521, 530 (Mo.App.1976).

Judgment affirmed.

STEWART, P. J., and STEPHAN, J., concur.

      . The proposed testimony as stated in defendant’s brief concerned matters his mother had known before trial. There is no suggestion in the brief that any of the State’s testimony surprised the defendant.


author: SMITH, Judge.

text:
    James Christian CLARK, a minor by Lillian Steinman, his guardian, Appellant, v. Randolph W. FURCH, Respondent.
    No. 38900.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 30, 1978.

      Cupples, Cooper, Haller, Inc., Clayton, for appellant.
    Joseph L. Leritz, St. Louis, for respondent.
   SMITH, Judge.

Plaintiff, through his guardian, appeals from a judgment in favor of defendant entered pursuant to a jury verdict. We affirm.

On appeal plaintiff challenges the admission of evidence and the giving of an instruction on contributory negligence on the basis that plaintiff, aged six years and five months at the time of the accident, was incapable of contributory negligence as a matter of law. Defendant takes a contrary view and additionally contends that plaintiff failed to make a case of negligence against defendant. Plaintiff has not addressed the latter issue in his original brief and filed no reply brief.

At the time of the accident, plaintiff was a kindergarten student at Flynn Park School in University City. Defendant was a physical education teacher and was in charge of plaintiff’s class of twenty-two students at the time of the accident. The children were on the playground and had been jumping rope pursuant to the instructions of defendant. Near the end of the twenty minute physical education period, defendant permitted the children to engage in free play on the swings, slides, jungle gyms and other playground equipment. Plaintiff, still in possession of a jumping rope, climbed to the top of a jungle gym, tied the rope to the top of the apparatus, started to swing down, fell and broke his arm. Plaintiff had been taught for nearly the entire semester about the use of the playground equipment and knew that his attempted action in swinging from the jungle gym by the rope was dangerous. Plaintiff did not know how long it took him to go from his position on the ground to the top of the jungle gym or how soon thereafter he fell. At the time he started up the apparatus, defendant was looking in a direction away from him. There was no evidence that defendant was inattentive, asleep, or that he saw plaintiff climbing the jungle gym with a rope in his hand. His first knowledge of plaintiff’s actions occurred when plaintiff fell. The most that can be said of defendant’s knowledge was that he saw plaintiff sitting on the bottom ring of the jungle gym with a rope in his hand at some time before the fall.

Under the facts we find no evidence of defendant’s negligence. Defendant’s obligation was to exercise ordinary care to supervise the children. He is not an insurer of their safety. Morris v. Ortiz, 103 Ariz. 119, 437 P.2d 652 (Ariz. banc 1968); Smith v. Consolidated School District, 408 S.W.2d 50 (Mo. banc 1966). Ordinary care does not require having each of twenty-two six-year-olds constantly and continuously in sight. Conway v. Board of Education of City of New York, 11 Misc.2d 162, 171 N.Y.S.2d 533 (Sup.Ct.1958). Such would be im-. possible. There is no indication in the evi-' dence that defendant was inattentive, careless, or was failing to perform his supervisory obligations. There is no indication defendant saw plaintiff in a place of danger or acting dangerously and failed to act. The record is silent on how long it took plaintiff to leave a position of safety and fall, and plaintiff’s testimony was that defendant was looking away from plaintiff when he started up the jungle gym. There is no evidence that plaintiff required any special supervision or had previously conducted himself in a dangerous fashion. In short, if negligence by defendant is to be found, it must be solely upon the basis that plaintiff fell while under defendant’s supervision. That is an insufficient basis for liability. Smith v. Consolidated School District, supra; Kersey v. Harbin, 531 S.W.2d 76 (Mo.App.1975).

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: PER CURIAM:

text:
    Donna L. RAINES (Norbeck), Plaintiff-Appellant, v. Carroll F. RAINES, Defendant-Respondent.
    Nos. 10944, 10948.
    Missouri Court of Appeals, Springfield District.
    May 31, 1978.
    Motion for Rehearing or To Transfer to Supreme Court Denied June 26, 1978.
    Application to Transfer Denied July 24, 1978.
    Daniel R. Devereaux, Devereaux & Stokes, St. Louis, for plaintiff-appellant.
    B. B. Turley, Rolla, for defendant-respondent.
   PER CURIAM:

We have for consideration, defendant’s separate motion to dismiss the consolidated appeals in the captioned cause from orders emanating from a modification of the child custody provisions in a decree of divorce. On the 9th day of February, 1978, the Circuit Court of Phelps County entered an order which provided that the custody of Jerry Randolph Raines be transferred temporarily to defendant Carroll F. Raines on June 15, 1978, and that defendant pay $100.00 per month as child support. Further, the court announced “Until the 21st day of August, 1978, this cause is taken under advisement.”

On the 10th day of February, 1978, the circuit court of said county recalled that portion of its order of February 9, 1978, insofar as it related to child support.

Plaintiff Donna L. Raines (Norbeck) has filed a notice of appeal from the February 9, 1978, order and a separate notice of appeal from the February 10, 1978, order. Upon this court’s own motion, the two cases were ordered consolidated for the purpose of determining the appealability of the two orders.

The essence of the two orders, when examined together, is to award temporary custody and to announce that the case was taken under advisement. The orders of the circuit court lack sufficient finality to support appellate review. Lipschitz v. Smith, 459 S.W.2d 17, 18[1] (Mo.App.1970).

The appeal must be, and hereby is, ordered dismissed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald BARTON, Defendant-Appellant.
    No. 11044.
    Missouri Court of Appeals, Springfield District.
    June 8, 1978.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Terry Daley, Asst. Public Defender, Rol-la, for defendant-appellant.
   PER CURIAM:

On May 15, 1978, appellant filed a notice of appeal and an order allowing perfection of appeal as a pauper. Said order was signed by the circuit judge on the 10th day of May, 1978. The notice of appeal states that the judgment was final for purposes of appeal on the 1st day of May, 1978.

This court must examine, sua sponte, the files and records of each case to insure that appellate jurisdiction exists pri- or to an examination of the merits. Timely examination of jurisdiction will hopefully allow those parties whose efforts have fallen short of the required time limitation to salvage their right to appellate review.

The instant record demonstrates that the notice of appeal and the order allowing waiver of the filing fee were not filed within 10 days after the judgment became final. This court has acquired no jurisdiction. State v. Worl, 531 S.W.2d 294, 295[1] (Mo.App.1975).

The appeal is hereby ordered dismissed without prejudice to move for leave to file a notice of appeal out of time. ,

All concur.


author: BROCK, Justice.

text:
    STATE of Tennessee, Petitioner, v. Roosevelt CHAMBERS, Respondent.
    Supreme Court of Tennessee.
    March 6, 1978.
    John F. Southworth, Jr., Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    Ike R. Clinton, Memphis, for respondent.
   OPINION

BROCK, Justice.

This case is a companion to State v. Hudson, Tenn., 562 S.W.2d 416 (1978) decided this date. We granted certiorari to consider the construction and application of T.C.A., § 39-4914.

Pursuant to separate indictments, the defendant Chambers was convicted of assault with intent to commit murder in the second degree, T.C.A., § 39-604, and using a firearm in the commission of a felony, § 39-4914. He received a sentence of imprisonment for not less than one nor more than five years in each case, the sentences to run consecutively. The Court of Criminal Appeals reversed the conviction and dismissed the indictment charging the defendant with use of a firearm in commission of a felony. T.C.A., § 39-4914, holding that it was a lesser offense included within the offense of assault with intent to commit murder in the second degree.

The indictments were based upon the facts hereinafter stated. The defendant’s former wife was living at the home of her mother at the time this offense was committed. She and a male companion, Mr. Byers, were sitting in the driveway of her mother’s home in an automobile late at night when the defendant approached them in his automobile and stopped. The defendant emerged from the vehicle, walked to Byers’ car and fired not less than three shots from a .38 caliber pistol through the passenger side window. One of these bullets struck Mrs. Chambers in the head but the wound did not prove fatal. Byers then backed his vehicle out and sped away with the defendant giving chase.

For the reasons stated in State v. Hudson, supra, we hold that T.C.A., § 39-4914, does not create a separate felony but enhances the punishment for other felonies which are committed by means of using a firearm. Accordingly, we affirm the holding of the Court of Criminal Appeals that the conviction under T.C.A., § 39-4914, cannot stand. As we did in Hudson, supra, we correct this error by directing the trial court upon remand to revise the judgment by deleting the separate conviction for using a firearm in commission of a felony, T.C.A., § 39-4914, and revising the judgment for assault with intent to commit murder in the second degree by specifying that the assault was “committed by means of using a firearm, to wit: a pistol,” and by providing that the punishment for that offense shall consist of the two sentences fixed by the jury for the assault and the use of a firearm in committing a felony convictions, those two sentences to run consecutively. It is so ordered.

Costs incurred in this • Court are taxed equally against the State and the defendant.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.


author: HARBISON, Justice.

text:
    Ward DRAPER and James Smith, Petitioners-Defendants, v. David HAYNES, Mayor of the Town of Gordonsville, Respondent-Plaintiff.
    Supreme Court of Tennessee.
    April 3, 1978.

      Jacky O. Bellar, Carthage, for petitioners-defendants.
    Charles W. McKinney, Gordonsville, for respondent-plaintiff.
   OPINION

HARBISON, Justice.

This case involves the validity of a municipal ordinance pertaining to streets or roads in real estate subdivisions. Both the Chancellor and the Court of Appeals sustained the ordinance and enjoined violation thereof. We affirm their decision.

The municipality involved is the Town of Gordonsville, Tennessee, located in Smith County. The city was chartered by Chapter 280 of the Private Acts of 1909. It is a small community, having a population of 601 persons in 1974. It is governed by a mayor and a council of five aldermen. Ordinances are required by the charter to be enacted on three separate readings, except by unanimous consent of the Council. The record is silent as to whether the city has a Planning Commission, or as to whether the Council acts as such. Section 10 of the charter gives the city broad police powers and authorizes regulations for the good order, peace, health, safety, comfort, convenience and morals of the citizenry. The Council is expressly authorized to pass ordinances dealing with streets and public roads and to provide for the maintenance thereof.

General state statutes also authorize municipal corporations to adopt planning regulations with respect to streets in subdivisions, and prohibit the recordation of plats for subdivisions without approval of the planning commission of any municipality which has adopted a major street plan. T.C.A. §§ 13-601 et seq. T.C.A. § 13-603 authorizes municipal corporations to adopt regulations regarding the manner in which streets shall be graded and improved, as a condition precedent to approval of a plat for a subdivision, and T.C.A. § 13-606 makes it a misdemeanor for owners or sub-dividers to sell properties in platted subdivisions without approval of a municipal planning commission. The statute also provides that the municipality may enjoin such transfers or sales.

According to the record, there have been only two residential subdivisions in Gor-donsville. In 1968 the Council passed a resolution, apparently by unanimous consent, adopting minimum regulations of the Federal Housing Authority as the standards for the construction of new roads and streets within the city. Copies of these specifications were made available to the first subdivider, and he built streets in that subdivision conforming to the regulations before they were accepted as public streets.

Petitioners are the developers of the second subdivision, which was begun in 1970. Minutes of the City Council show that one of the petitioners appeared before the Council in 1970 to discuss plans for this development. There is substantial evidence in the record that copies of the F.H.A. street regulations were furnished to petitioners, and to their road contractor. Portions of the streets in the subdivision were built to the specifications contained therein. There is a concurrent finding of fact by the courts below, supported by evidence, that the petitioners did know about and were fully advised of the adoption of the F.H.A. regulations by the Town of Gordonsville, so that their contentions to the contrary are foreclosed here. T.C.A. § 27-113.

It appears that petitioners recorded a plat of their proposed subdivision in the Register’s Office for Smith County, Tennessee, in 1970. A copy of the plat was not filed in the record, however, and the testimony is difficult to follow. Apparently petitioners platted only part of the subdivision. Later they attempted to extend the streets and to sell additional lots but did not build or pave the streets in the additional portion in accordance with the F.H.A. specifications. The city has never accepted these streets as public ways, and little or no maintenance of them has been afforded by petitioners or anyone else. The residents are able to use the streets only with difficulty. Delivery of mail and other public services are impeded by the poor road conditions. Petitioners continue to own many of the lots in this area.

After three readings the Council adopted an ordinance on February 14, 1975 similar in some respects to T.C.A. § 13-606. The ordinance makes no reference to the filing of plats of subdivisions, but does prohibit the selling of subdivided property not already fronting public streets without the construction and development of roads as to such subdivided parcels in conformity with the city’s minimum requirements for new public streets. There is a penal provision, not involved here. In addition, the ordinance provides for the injunction of sales and prohibits the issuance of building permits for such subdivided parcels.

The Mayor of Gordonsville instituted the present action against petitioners under this ordinance to enjoin any further sales by them until they have constructed streets meeting the specifications previously adopted. The Chancellor granted the injunction, and the Court of Appeals affirmed.

Petitioners challenge the validity of the ordinance as being an improper exercise of the police power of the city. They contend that the ordinance violates due process of law, that it is retrospective and represents a taking of their property without compensation. They specifically rely upon Tennessee Constitution, Article I, §§ 8, 20 and 21.

Petitioners concede, in their brief in this Court, that the city could have accomplished through zoning ordinances or land-use ordinances the purposes sought to be achieved by the legislation in question.' There is some suggestion in the record that' the city may have such ordinances and that it does have a building code. The Court, of course, cannot take judicial notice of local ordinances or city codes, Metropolitan Government of Nashville & Davidson County v. Shacklett, 554 S.W.2d 601 (Tenn.1977). We, therefore, have no way of knowing what other ordinances the City of Gordons-ville may have adopted.

Zoning and land-use ordinances, however, represent an exercise of the police power of a municipal government. McKel-ley v. City of Murfreesboro, 162 Tenn. 304, 36 S.W.2d 99 (1931). In the latter case it was held that a charter provision granting a city “all police powers necessary” authorized the enactment of zoning ordinances within the city. See also Holdredge v. City of Cleveland, 218 Tenn. 239, 402 S.W.2d 709 (1966); 82 Am.Jur.2d, Zoning and Planning § 11 (1976).

Ordinances regulating the use and development of property are generally held to lie within the police power of municipal corporations, and their adoption, while frequently affecting property values and restricting use of property, has generally not been considered to amount to a taking under the power of eminent domain or to constitute retrospective legislation within the meaning of the state constitution. See Houck v. Minton, 187 Tenn. 38, 212 S.W.2d 891 (1948); Spencer-Sturla Co. v. City of Memphis, 155 Tenn. 70, 290 S.W. 608 (1927); Jones v. Nashville, 109 Tenn. 550, 72 S.W. 985 (1902). Further, whether the police power of the city is exercised directly by the governing body or through one of its local agencies is usually deemed to be immaterial, so long as the exercise lies within authority expressly or impliedly granted to the municipal corporation by general state law or by its charter provisions. Houck v. Minton, supra.

The ordinance in question, in our opinion, lies within the general police powers granted to the city by its charter, and certainly we are not in position to say that it is not designed to promote the convenience, safety or public welfare of the citizens of the city. The ordinance is not particularly well drafted, but petitioners do not attack its terms for vagueness. The intent of the ordinance is clear. The term “subdivision” is defined in state statutes having purposes similar to those of the ordinance, T.C.A. § 13-601, and we have no difficulty in concluding that the ordinance could and should be construed consistently with provisions of the general state law in that regard.

The only assignments of error of petitioners in this Court are that the 1975 ordinance is unconstitutional, and that the 1968 resolution or ordinance had not been properly adopted and that inadequate notice of its adoption and of the F.H.A. requirements had been given. We find both of these assignments to be without merit and affirm the decision of the Court of Appeals at the cost of petitioners.

HENRY, C. J., and COOPER, FONES and BROCK, JJ., concur.

      . Tenn. Blue Book, 1977-78, p. 463.

      . By legislation adopted since the subdivision involved in this case was planned, health authorities are also required to approve subdivision plans. Plats are not to be recorded without such approval. T.C.A. §§ 53-2048 et seq.


author: DROWOTA, Judge.

text:
    Joe H. PARKS et ux., Plaintiffs-Appellants, v. Don RICHARDSON et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    August 26, 1977.
    Certiorari Denied by Supreme Court Nov. 7, 1977.

      Edward C. Blank, II, N. Houston Parks, MacFarland, Colley, Blank & Jack, Columbia, for plaintiffs-appellants.
    T. Edward Lawwell, Shelton, Lawwell & DuBois, Columbia, for defendants-appellees.
   OPINION

DROWOTA, Judge.

This appeal presents the question of whether or not a covenant restricting the use of real property to residential purposes only prohibits the construction of multi-unit residential structures such as apartment buildings.

Plaintiffs Joe and Cloa Parks, husband and wife, are the son and daughter-in-law of Norman Parks, former owner of a large tract of land in Maury County. On August 16, 1955, Norman Parks deeded to Allen H. Fraser a part of this tract, which soon became the Andrew Jackson Heights Subdivision. This deed contained the following covenant:

For the above stated consideration, the grantor further covenants and binds himself, his heirs, representatives and assigns, that the remainder of the property which he owns lying to the south of the above described roadway and between the First Tract and the highway and also that portion of his property lying to the north of said roadway, between the First Tract and the highway and for a distance of 140 feet north of the center of said roadway easement, this property is hereby restricted for residential purposes only and for residential property which has been approved by the Columbia Planning Commission, except that within the 140 foot strip north of the road the grantor shall be permitted to construct a 50 foot street or road.

A plat of Jackson Heights Subdivision was recorded by Fraser on September 16, 1955. Among the covenants included in the plat was one restricting each lot to use for one or two family residences only, and another prohibiting apartment houses and “other commercial” buildings.

Plaintiffs took title to the two tracts of land in controversy here by two deeds from Norman Parks, one dated August 1, 1956, the other dated October 3,1973. These two tracts fall within the description of land “remaining” to Norman Parks under the covenant in his deed to Fraser, and so are restricted to “residential purposes only” by that covenant. They are also noted on the Jackson Heights Subdivision plat as “restricted future residential.”

The present controversy arose when plaintiffs became desirous of constructing “multi-unit residential buildings” on their restricted property. Before .proceeding with their plan, they brought this action for declaratory relief in the Chancery Court for Maury County, asking the court to determine whether the proposed construction would constitute a breach of the covenant. The suit was brought against the class of “all present owners of real property in the Andrew Jackson Heights Subdivision,” and defendant Richardson was made the named representative of the class. After approving the suit as a class action, the Chancellor held a hearing at which he accepted into evidence several agreed exhibits and some brief testimony from a property owner in the subdivision.

The evidence submitted in the case consists entirely of the deed from Norman Parks to Fraser, the plat of Andrew Jackson Heights Subdivision, copies of the two deeds from Norman Parks to plaintiffs, and the testimony of Mrs. Carolyn Murray Outlaw. Mrs. Outlaw’s testimony was that she purchased a lot in the subdivision on March 31, 1956. She stated that she had seen the restriction of “future residential” noted on the subdivision plat with respect to the property in question here, and that she had been “under the impression” that this restriction was the same as the one or two family use restriction imposed on lots in the subdivision. She also had the impression that the restriction was intended to protect subdivision residents from having to enter the subdivision through a proposed shopping center. Mrs. Outlaw said she relied on these impressions in purchasing her lot. She further said that, while she bought her lot from Fraser and spoke primarily with him, she knew that Norman Parks knew of her conversations with Fraser and that he may have been present on at least one occasion.

Based on the foregoing, the Chancellor’s decision was that plaintiffs’ suit should be dismissed. He reasoned that modern apartment buildings are more in the nature of businesses than residences and that Norman Parks, who knew the character of the subdivision Fraser was about to establish, could not have intended the covenant to allow construction of an apartment house. He therefore decided that construction of such a building would constitute a breach of the restrictive covenant and entered a decree dismissing the suit. Plaintiffs appeal, assigning as error the Chancellor’s conclusion that the covenant prohibits construction of apartment buildings and his failure to declare explicitly whether other types of mul-ti-unit housing, such as duplexes or condominiums, would be permitted.

Plaintiffs correctly point to a couple of well established rules of law and construction which dictate the approach that must be taken in this case. The first is that a restrictive covenant will be given a fair and reasonable meaning according to the intent of - the parties, which may be determined with reference both to the language of the covenant and to the circumstances surrounding its making. White v. Gulf Refining Co., 156 Tenn. 474, 2 S.W.2d 414 (1928); Waller v. Thomas, 545 S.W.2d 745 (Tenn.App.1976); Hamilton v. Broyles, 57 Tenn.App. 116, 415 S.W.2d 352 (1966). The second is that a restrictive covenant, being in derogation of the free use and enjoyment of property, will be strictly construed against the restriction and in favor of the reasonable use of the property, so that only uses clearly prohibited will be held-precluded by such a covenant. Shea v. Sargent, 499 S.W.2d 871 (Tenn.1973); Lowe v. Wilson, 194 Tenn. 267, 250 S.W.2d 366 (1952). Thus, any ambiguity in the terms of the covenant or intent of the parties will be resolved against the restriction. Shea v. Sargent, supra; Waller v. Thomas, supra. We point out in particular that this is the applicable rule of construction, rather than the rule that ambiguous contract provisions are construed against the party who wrote them, a rule that defendants contend should be applied here. The latter is a valid rule of construction applied in contract cases in Tennessee. See e. g., Hanover Insurance Co. v. Haney, 221 Tenn. 148, 425 S.W.2d 590 (1968) (insurance policy). In cases involving covenants restricting the use of real property, however, the rule of strict construction against the restriction is well established as the one to be applied.

The first question, then, is whether there is any clear evidence of the specific meaning intended by the parties in the use of the words “for residential purposes only.” The words themselves, of course, are the primary evidence of meaning. Beyond that, the only such evidence is the circumstantial probability that Norman Parks knew what kind of subdivision Fraser had in mind when the covenant was made, and the testimony of a purchaser of property in the subdivision that her impression was that the restrictions imposed on plaintiffs’ property were the same as those imposed on the subdivision. Despite defendants’ argument to the contrary, we think that this evidence is wholly inadequate to displace the “plain meaning” of the words used and to establish that those words were specifically intended to impose on the property now owned by plaintiffs the same restriction to one or two family use that was soon afterward imposed on the subdivision lots.

The next question is, in the absence of a clear showing of the intent of the parties to the covenant, what “plain meaning” is to be legally attributed to its words. Defendants contend, and the Chancellor held, that modern apartment buildings are primarily commercial in character and so are not within the meaning of “residential.” Here we are assisted by the rule requiring us to construe any ambiguity against the restriction, as well as by case law from other jurisdictions which have already decided the point. Nearly all of the cases considering the point have held that, without more, a covenant restricting property to “residential” use does not prohibit construction of multi-unit residential buildings such as apartments, condominiums, and duplexes. Walker v. Gross, 362 Mass. 703, 290 N.E.2d 543 (1972); Shepherd v. State, 427 S.W.2d 382 (Mo.1968); see Annot., 14 A.L. R.2d 1376, § 9 (1950) (collecting the cases in point). Some cases, while in accord with this general view, hold that a different result could obtain if the word “a” or “one” were used to modify the word “residence” in the covenant. Flowers v. August, 426 S.W.2d 480 (Ky.1968); Stephenson v. Perlitz, 532 S.W.2d 954 (Tex.1976).

An instructive example of the reasoning employed by the courts that hold multi-unit buildings not precluded by a restriction to residential use is afforded by Walker v. Gross, supra, in which the court held that a covenant forbidding the use of premises “for any business purpose” did not prohibit construction of an 83-unit apartment house thereon. As in the present case, evidence of the precise intent of the parties was lacking, and a rule of construction required restrictions in a deed to be construed against the party seeking to enforce them and in favor of the freedom of the land from servitude. Focusing on the activity to be carried on on the premises, the court reasoned that the apartment building would be used by its occupants for residential purposes only, and that ownership of the property for profit did not make the building a business within the meaning of the covenant. The court pointed out that, were the opposite view to be adopted, renting of a single family house would seem to violate the covenant, while outright ownership by many families of a large number of condominiums located in one building would not. The court rejected this approach, asserting that a restriction to residential or nonbusiness use refers to the use actually made of the property by its occupants rather than the existence of any profit for the owner, and held that the restriction did not bar construction of an apartment house.

We agree with. Walker and the other cases that have held covenants restricting property to residential use not to prohibit multi-unit residential structures. We do not agree, as defendants argue and the Chancellor decided, that Carr v. Trivett, 24 Tenn.App. 308, 143 S.W.2d 900 (1840), is analogous to the instant case. There, pursuant to a covenant restricting property to residential use and expressly prohibiting business use, defendants were enjoined from using 4 rooms in their 8-room house as a tourist home. There, the tourists who occupied the house were not using it for residential purposes, but only for the most temporary convenience of shelter in the course of a brief stay in the area. The occupants, other than the owners, were transients who could not be said to “reside” in the house in the sense that those who rent apartments reside in them. Further, due to the magnitude of the boarding house operation, as the court rightly pointed out, this use of the house was not “incidental to the occupancy of the premises as a dwelling . . . .” 24 Tenn. App. at 313,143 S.W.2d 903. In the instant case, on the other hand, the restriction is sought to be applied to preclude the occupancy of the property on a much more permanent basis as dwellings by tenants or owners of condominiums, a use undeniably “residential” in character. We decline so to apply it.

In addition to their contentions that restriction to one or two family use is mandated by the intent of the parties and by the words of the covenant themselves, defendants argue that that result should be reached by an application of T.C.A. § 67-601(9). That section defines “residential property,” for purposes of tax assessment, as “real property . . . used, or held for use, for dwelling purposes and which contains not more than one rental unit.” We do not think that this definition has any application in the context of a private restrictive covenant. Section 67-601(9) was enacted as part of a scheme of property taxation, in which a primary concern is an allocation of the tax burden according to the income derived from property and its worth to the owner. This business aspect, emphasized by the tax law, is undeniably a part of residential rental property. But when a private restrictive covenant rather than tax law is in question, it is not the aspect to be looked to. Rather, as we have already explained, the use made of the property by its occupants is there the crucial criterion, and use by apartment and condominium dwellers must be classified as “residential.”

In sum, we hold that a private covenant restricting property to “residential” use only does not, of itself, prevent construction of multi-unit residential buildings. We do not think that the use of the word “purposes” rather than “use” after “residential” in the instant covenant should affect the reasoning we have advanced in support of this result. Of course, clear indication of a different intent by the parties to the covenant, or perhaps establishment of a common scheme of development or other unusual circumstances, might require a different result in another case. But there is no evidence of any of these elements in the instant case.

The Chancellor evidently based his decision mainly on the theory that multi-unit residential buildings today are more in the nature of “business” than “residence” and so are excluded from the term “residential” under the covenant, and secondarily on a finding that prohibition of such a use was the intent of the parties to the covenant. The latter finding is not supported by the preponderance of the evidence and cannot be sustained. The former point is really a question of law controlled by the riile of strict construction against the restriction. Since there is no other evidence to alter its meaning in the instant case, the legal definition of the word “residential” in this context, as we have explained it, is controlling. Accordingly, and pursuant to plaintiffs’ request for specific declaration of their rights and duties under the covenant, we will proceed to construe the covenant as follows:

(1) The plaintiffs’ property is limited to use for residential, as opposed to commercial or other purposes. The word “residential” refers to the use made of the property by its occupants, and does not preclude the construction and rental of duplexes, apartment houses, or condominiums. Any use in the nature of a hotel, motel or boarding house, however, is prohibited.

(2) By its terms, the covenant also limits plaintiffs’ property to “residential property which has been approved by the Columbia Planning Commission,” so that express approval of that body is required even for uses falling within the definition of “residential.”

(3) This opinion in no way affects the covenant’s express allowance of construction of a 50 foot street in the “140 foot strip north of the road.”

The decree below must be reversed and the costs of this appeal taxed to appellees.

Reversed.

SHRIVER, P. J., and TODD, J., concur.


text:
    STATE of Tennessee ex rel. DEPARTMENT OF TRANSPORTATION, BUREAU OF HIGHWAYS, Robert F. Smith, Commissioner, Plaintiff-Appellee, v. Harvey GEE and wife, Mary Virginia Gee, Madison Investments, J. Vaulx Crockett, Trustee, the Equitable Life Assurance Society of the United States, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 28, 1977.
   OPINION ON PETITION TO REHEAR

DROWOTA, Judge.

Defendants Madison Investments and Equitable Life Assurance Society of the United States have filed a rather lengthy petition to rehear. We have considered the petition and determined that it presents no reason to rehear the case, but we deem it worthwhile to comment on a few of the points it raises.

Petitioners contend that our opinion overlooked damages for the temporary taking of a 3-year construction easement on a portion of the property subject to the lease, and allege that they are entitled as lessees to all of the damages for this taking. It is true that our opinion does not address the question of allocation of these damages. The reason is that the trial court did not refer to such damages in its decision, nor were they made the subject of any assignment of error or argument in this Court. Furthermore, the testimony of petitioners’ appraisal witness, Gibson, contains not a word about any such damages, but uses the $28,650.00 figure as the total value of the property taken in fee simple. We wish to make it clear that because the case was so presented to us, our opinion deals only with the question of apportionment between lessors and lessee of the value of the property taken in fee. Any decision which the trial court may have made or may choose to make as to what damages are to be awarded and to whom for the temporary easement is not affected in any way by our opinion, nor do we think it appropriate to rule on the question ourselves at this point.

In the fifth, sixth, and seventh grounds stated in support of the petition, we think the concerns expressed by petitioners result from reading into some of our language far more than it was intended to convey. We did not determine that the escalator clause in the lease was entitled to any consideration in assessing damages, but simply that its effect on that assessment, if any, is a matter that the trial court might wish to decide after hearing evidence presented by the parties on the issue. Such evidence could quite properly include testimony supporting the proposition now pressed by petitioners that the clause should not be considered at all. In regard to petitioners’ sixth ground, we think it clear that our opinion neither contradicts nor even addresses the trial court’s decision to treat the lease as one for 75 years by including the second, as yet unexercised 25-year option period as part of its term. Our use of the phrase “unexpired term” at page 8 of the opinion in stating the long-established Tennessee rule of apportionment in these cases in no way suggests a determination by us of the exact length to be assigned that term in this case. Finally, in response to petitioners’ seventh ground, our remark that “[ojnly two witnesses gave testimony at the trial” refers to live testimony. The deposition of Harvey Gee, which we are fully aware was made part of the bill of exceptions, was considered by this Court with the rest of the record and remains in the record of this case for anyone who cares to look at it, and we fail to see how our description of the trial could prejudice petitioners in this or any subsequent proceeding.

The other grounds advanced by petitioners all basically attack the application to long-term leases of the Tennessee apportionment rule stated in the opinion. This contention has been answered in the opinion by our decision that, while the logic and authority supporting the rule urged by petitioners for long-term lease cases are persuasive, we are compelled by Tennessee law to follow a different rule until the legislature or our Supreme Court decides otherwise.

We think our opinion adequately reflects the rule to be applied under the Tennessee authorities cited. We also believe that it is sufficiently clear that that rule can only be property applied after testimony is elicited on remand which is addressed directly to the elements used by the rule to apportion damages. Accordingly, the petition to rehear is respectfully overruled.

TODD, J., concurs.

SHRIVER, P. J., not participating.


author: SHRIVER, Presiding Judge.

text:
    STATE of Tennessee ex rel. Brenda HOCKETT, by her next friend, David Kozlowski, Plaintiff-Appellee, v. Sue M. HATLER, Superintendent of the Highland Rim School for Girls and C. Murray Henderson, Commissioner of the Tennessee Department of Correction, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 2, 1977.
    Certiorari Denied by Supreme Court March 6, 1978.
    Andrew Shookhoff and David A. Kozlow-ski, Vanderbilt Legal Aid Clinic, Nashville, for plaintiff-appellee.
    Robert A. Grunow, Asst. Atty. Gen., Nashville, for defendants-appellants; Brooks McLemore, Atty. Gen., of counsel.
   SHRIVER, Presiding Judge.

OPINION

This is an appeal of Sue M. Hatler, Superintendent of the Highland Rim School for Girls, and C. Murray Henderson, Commissioner of the Tennessee Department of Corrections, from the judgment of the Davidson County Chancery Court, C. Allen High, Chancellor, granting a petition for writ of habeas corpus as filed on behalf of Brenda Hockett, and ordering appellee released from the custody of the Department of Correction and remanded to the Davidson County Juvenile Court for further proceedings.

-The Proceedings Below-

A Petition for Writ of Habeas Corpus was filed in the Chancery Court of Davidson County on March 18, 1977 wherein it is averred that petitioner, Brenda Hockett, is a thirteen-year-old minor child confined at the Tennessee Reception and Guidance Center for Children where she was committed as an unruly child on her first appearance in the Juvenile Court before a Judge or Referee. She alleges that her confinement is, therefore, in violation of T.C.A. § 37-232 and petitioner seeks her immediate release.

Petitioner avers that she is a resident of Davidson County, Tennessee, and is presently in the custody of respondents at the Highland Rim School for Girls, Tullahoma, Tennessee; that Sue M. Hatler is Superintendent of the Highland Rim School for Girls, and under T.C.A. § 41-829, she has responsibility for and supervision over all juveniles committed to that institution; that C. Murray Henderson is Commissioner of the Tennessee Department of Corrections, and under T.C.A. § 41-827, has authority to supervise the acts of the Department’s juvenile probation personnel, including the Highland Rim School for Girls.

It is averred that Brenda Hockett was committed to the Tennessee Department of Correction by a Davidson County Juvenile Court Referee on February 4, 1977, having been charged with being unruly and in violation of probation; that although several unruly petitions had been filed against her, at no time prior to February 4,1977, did she appear before either the Juvenile Court Judge or Referee, but instead, on three occasions, March 12, 1976, October 1, 1976, and October 28,1976, the “unruly” petitions were handled by informal conferences with State and Juvenile Court probation personnel and, as a result of these conferences, petitioner was placed on probation by her probation officer. At no time was she placed on probation by either the Juvenile Court Referee or Judge.

Petitioner, Brenda Hockett, avers that because she never appeared before the Juvenile Court Judge or Referee prior to her hearing on an unruly offense on February 4,1977, her commitment to the Department of Correction at that hearing was in violation of T.C.A. § 37-232 which precludes commitment to the Department of Correction of children adjudicated to be unruly for the first time.

The prayers of the petition are for a writ of habeas corpus to issue and that petitioner be ordered discharged from custody, and for general relief, this being the first application for extraordinary process in this cause.

The response to the petition for writ of habeas corpus admits the statistical data set forth in the petition and asserts that the petitioner is not being unlawfully or wrongfully held in custody.

After a hearing on the petition for habe-as corpus the Chancellor filed his Memorandum Opinion which is as follows:

“MEMORANDUM
Hockett, a thirteen-year-old, seeks release from the custody of the Tennessee Department of Corrections to which she was committed on February 4, 1977, by the Juvenile Court of Davidson County.
Jurisdiction over this petition for a writ of habeas corpus is conferred on this Court by T.C.A. § 23-1803.
Between March 12,1976 and November 11, 1976, four petitions were filed in the Juvenile Court of Davidson County alleging Hockett to be an unruly child. These petitions were handled without an official hearing by the Court’s Protective Service Unit. The Protective Service Unit referred Hockett to probation under the Youth Aid Bureau in November 1976.
On November 11,1976 a probation officer filed a petition alleging Hockett to be a delinquent child by reason of violation of the rules of probation.
On February 4,1977, Hockett made her first appearance in a' Juvenile Court before a Judge or Referee. The Juvenile Court ‘found the defendant to be guilty as charged, found her to be an unruly child pursuant to law, and further found her to be delinquent and found her to be in need of treatment and rehabilitation based on her previous record and testimony.’
To be adjudged delinquent, a child must be found to have committed the acts by reason of which she is alleged to be delinquent. T.C.A. § 37-229(b). The act alleged must be an act designated a crime under law. T.G.A. § 27-202(3) [37— 202(3)].
Neither act alleged in the Delinquent Petition No. 1-76-8249 is designated a crime under law.
The determination that Hockett was delinquent is in violation of the Tennessee statute.
The acts alleged in all petitions filed in the Juvenile Court are acts for which Hockett might be adjudicated unruly under T.C.A. §§ 37-230, 37-232, 37-202(5).
T.C.A. § 37-232 precludes commitment to the Department of Correction as a disposition for a child found to be unruly for the first time.
Hockett’s commitment to the Department of Correction is in violation of T.C.A. § 37-232.
An order should accordingly be drawn remanding petitioner to the Davidson County Juvenile Court.
/s/ C. Allen High
Chancellor
April 13, 1977.”
—Assignment of Error—
There is a single assignment, as follows:
“The Chancellor erred in granting ap-pellee’s petition for writ of habeas corpus on the ground that appellee’s commitment as an unruly child to the Department of Correction was in violation of T.C.A. § 37-232.”
-Our Conclusions-

Section 27-232 [37-232] T.C.A., is as follows:

“37-232. Unruly child-Disposition. — If the child is found to be unruly the Court may make any disposition authorized for a delinquent child except commitment to the State Department of Correction. If after making the disposition the Court finds upon a further hearing that the child is not amenable to treatment or rehabilitation under the disposition made it may make a disposition otherwise authorized by § 37-231.”

The Memorandum Opinion of the Chancellor which was implemented by a decree embodying the findings of fact substantially as set out in the memorandum precludes the necessity for further elaboration of the facts of this case which are substantially as set out in the petition for the writ of habeas corpus and as found by the Chancellor.

As is pointed out by counsel for the ap-pellee, the appellants argue that the procedure followed by the Juvenile Court of Davidson County satisfied the legislative intent to treat and rehabilitate this child but that this argument ignores the positive effect of an appearance before the Judge since a warning from a Judge after a hearing will certainly make a stronger impression on both the child and the parent than a mere informal discussion before a Probation Officer.

We agree with the contention of the ap-pellee that informal procedures, while shown to be efficient in many cases, should not be used to circumvent constitutional and statutory due process and the provisions of the statutes designed for the protection and rehabilitation of juveniles.

We are satisfied that the Chancellor reached the right conclusion in this case and it results that the assignment of error is overruled and the judgment of the Chancellor is affirmed.

AFFIRMED.

TODD and DROWOTA, JJ., concur.


text:
    Betty Rose HESS, Plaintiff-Appellee, v. Earl Gene HESS, Sr., Defendant-Appellant.
    Court of Appeals of Tennessee, Western Section.
    Sept. 11, 1978.
    Blanchard E. Tual, Tual, Gordon & Tual, Memphis, for appellant.
    Barbara B. Wade, Wade & Kelly, Memphis, for appellee.
   ORDER WITHDRAWING PUBLICATION

PER CURIAM.

The opinion of this Court [filed February 13, 1978, 567 S.W.2d 474], published in the August 8,1978 Advance Sheet of West Publishing Company, is hereby withdrawn from publication by virtue of the following Order of the Supreme Court of Tennessee filed in that Court on May 30, 1978:

IN THE SUPREME COURT OF TENNESSEE AT JACKSON
EARL GENE HESS, SR., X
Petitioner, X
X
V. )( Shelby Law
)(
BETTY ROSE HESS, X
Respondent. X
ORDER
Upon consideration of the petition for certiorari and reply thereto, briefs of counsel and the entire record, the Court is of the opinion that the petition for certiorari should be and the same is hereby denied.
Denial of the petition does not indicate approval by this Court of the conclusion of the Court of Appeals that the defendant’s appeal from the divorce decree entered on March 22, 1977, was untimely filed. In our opinion, that decree did not become final and appealable until the final decree was entered on August 12, 1977. Saunders v. Metropolitan Government of Nashville and Davidson County, 214 Tenn. 703, 383 S.W.2d 28 (1964).
Costs are adjudged against the Petitioner.
PER CURIAM