text:
    BILL McDAVID OLDSMOBILE, INC., Appellant, v. Daniel J. MULCAHY, Appellee.
    No. 16620.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 5, 1976.

      James H. Lehmann, Jr., Houston, for appellant; Woodard, Hall, McCrory, Henry & Primm, Houston, of counsel.
    Donald G. Ritter, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from the judgment granting revocation of the acceptance of an automobile purchased by the plaintiff, Daniel J. Mulcahy, from the defendant, Bill McDavid Oldsmobile, Inc., and awarding damages. The case was tried to a jury and the trial court entered judgment on the jury verdict. The judgment will be reversed.

The plaintiff brought suit against the defendant, an automobile dealer franchised by General Motors Corporation, and against General Motors Corporation. He alleged that he purchased- a new Oldsmobile automobile from the defendant dealer and was issued a new vehicle warranty providing that the car and chassis including all equipment and accessories (except tires) supplied or manufactured by Oldsmobile was warranted to be free from defects in material and workmanship under normal use and service.

He alleged that the battery was cracked and that the defendant dealer refused to repair or replace the defective battery as required by the warranty. Plaintiff alleged damage in the amount of $2,453.00 which appears to be the amount he paid for the car less the amount the car sold for on foreclosure.

The jury found that the dealer issued plaintiff the manufacturer’s new car warranty; that the new vehicle warranty was a material inducement for the purchase of the automobile; that the battery with which the car was equipped was defective as the result of poor material or poor workmanship in the manufacturing thereof; that the dealer refused to replace the defective battery; that at the time he left the automobile in question with the dealer he reasonably believed that the defendant would refuse to perform future warranty service on said automobile; and that as a result of the refusal of the dealer to replace the battery in question the plaintiff suffered damage in the sum of $1,383.00.

The defendant made a motion for judgment non obstante veredicto asserting that there was no evidence to support the jury’s answers to Special Issues 2 through 6 and that Special Issue 6 provided for an improper measure of damages. The motion was denied and judgment was entered against the defendant in the amount of $1,383.00.

The plaintiff testified that within three months of the purchase of the car and after it had been driven approximately 3,500 miles he experienced some trouble with the Delco battery. He stated that the battery had to be filled with water every time he filled the car with gasoline, and that acid was leaking from the battery onto his driveway. He testified that the car had not been in an accident, the battery was well secured in the car, the battery never froze, and that he had it checked regularly. He testified that while he could not see a crack he thought the battery was cracked. There is no other testimony concerning the reason the acid leaked out, or that the battery was in fact cracked due to a defect in workmanship or material.

The defendant contends that the evidence is insufficient to support the jury’s finding that the battery in question was defective as the result of poor material or poor workmanship in the manufacturing thereof. There was sufficient circumstantial evidence to sustain this jury finding.

The defendant contends that there is no evidence to support the amount of damages awarded to plaintiff by the jury. As a rule the measure of recovery for a breach of contract is the pecuniary loss suffered by reason of the breach, which is shown to have been within the contemplation of the parties at the time they made the contract. 17 Tex.Jur.2d, Damages, Sec. 58. Under the facts of this case the only damage which the plaintiff suffered as a result of the failure of the dealer to replace the defective battery, which can be said to have been within the contemplation of the parties at the time the contract was made, is the cost of replacing the battery. There is no evidence in this record to establish such cost. The defendant’s point of error is sustained.

’ The plaintiff alleged that the issuance of the new vehicle warranty to plaintiff by “defendants” was a material inducement to plaintiff to purchase the vehicle and that had he known the warranty would not be honored he would not have purchased the vehicle. He alleged that the refusal by defendants to honor the warranty was a repudiation and breach of the sales contract; that he immediately tendered the vehicle back to the dealer and demanded the return to him of the money he paid for the vehicle. He alleged that he paid $5,953.00 for the automobile and that the value of the automobile immediately after the repudiation and breach of the sale agreement by the defendants was $3,500.00, resulting in damage to plaintiff in the sum of $2,453.00.

At this point we note that the new vehicle warranty specifically provides that:

“Oldsmobile Division, General Motors Corporation, the manufacturer (herein referred to as ‘Oldsmobile’), warrants to the original retail purchaser each new 1969 model Oldsmobile passenger car and chassis . . to be free from defects in material and workmanship under normal use and service . . . ”

The written warranty, therefore, is that of General Motors. The trial court instructed a verdict in -favor of General Motors and plaintiff makes no complaint of his action in that regard.

While the dealer delivered the manufacturer’s warranty to the purchaser, the original written sales agreement provides:

“I hereby agree to purchase and by this agreement do purchase the automobile described below, according to the terms hereof, and acknowledge receipt of said automobile. It is expressly agreed that there are no warranties, expressed or implied, made by either the dealer or the manufacturer other than the manufacturer’s warranty against defective materials as stated in the Oldsmobile Owner’s Manual.”

Prior to the adoption of the Texas Business & Commerce Code in 1967, it was settled in Texas that in the absence of fraud or an agreement allowing the property to be returned to the seller, rescission for breach of warranty could be availed of by the purchaser only where the identity of the article was involved and it proved to be something other than that which was purchased or where such article was wholly worthless for the purpose for which it was sold. Mathis Equipment Co. v. Rosson, 386 S.W.2d 854 (Tex.Civ.App.—Corpus Christi, writ ref’d n. r. e.); Wright & Clark v. Davenport, 44 Tex. 164 (1875). Here it is established that a specifically identified article of personal property was appropriated to the contract of sale by the parties and that the plaintiff accepted same. The title to said machine, therefore, passed to appel-lee and the contract became executed. Mathis Equipment Co. v. Rosson, supra.

The evidence shows that the plaintiff paid to the dealer the full cash purchase price, accepted the automobile, and used it for some three months prior to tendering it back to the dealer. The action of the trial court in granting rescission and damages must be supported, if at all, on the provisions of the Texas Business & Commerce Code.

Section 2.608, Texas Bus. & Com.Code, reads:

“(a) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it
(1) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or
(2) without discovery of such non-conformity if its acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
Sec. 2.711 of the Code provides:
“(a) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved and with respect to the whole if the breach goes through the whole contract (Section 2.612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid . . . ”

Section 2.316, Texas Business & Commerce Code, provides in subparagraph (b) as follows:

“Subject to Subsection (c), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘there are no warranties which extend beyond the description on the face hereof.”

Section 2.106 of the Business & Commerce Code provides:

“(a) . . .
“(b) Goods or conduct including any part of a performance are ‘conforming’ or conform to the contract when they are in accordance with the obligations under the contract.
“(c) . . .
“(d) ‘Cancellation’ occurs when either party puts an end to the contract for breach by the other and its effect is the same as that of ‘termination’ except that the cancelling party also retains any remedy for breach of the whole contract or any unperformed balance.”

Section 1.106, Business & Commerce Code, provides:

“(a) The remedies provided by this title shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed but neither consequential or special nor penal damages may be had except as specifically provided in this title or by other rule of law.”

Since in this case the contract of sale was complete, and the buyer had received title and possession of the automobile, the plaintiff’s right to tender back the automobile and demand return of the purchase price depends upon whether or not he justifiably revoked acceptance of the automobile. Section 2.711, supra. Section 2.608 of the Code authorizes the buyer to revoke his acceptance of goods whose nonconformity substantially impairs its value to him where he has accepted it without discovery of such nonconformity because of the difficulty of discovery before acceptance. Goods conform to the contract when they are in accordance with the obligations under the contract.

The contract between the dealer and the plaintiff was for the purchase and sale of an automobile. The written contract provided that there are no warranties express or implied made by either the dealer or the manufacturer other than the manufacturer’s warranty against defective materials. We find no evidence to support an implied finding by the trial court that the dealer made any express warranty. The delivery of the manufacturer’s warranty to the purchaser by the dealer does not make the dealer a party to that instrument.

Language found in the contract of sale, is sufficient to exclude all warranties by the dealer except the implied warranty of merchantability. Sec. 2.316, Tex.Bus. & Com. Code. The agreement concerning warranties found in the contract of sale does not eliminate the implied warranty of merchantability in the manner required by said section. The words may be construed to mean that there are no warranties expressed or implied made by the dealer and that the warranty made by the manufacturer is as stated in the Oldsmobile Owner’s Manual. The Oldsmobile Owner’s Manual is not in evidence. The language of the new vehicle warranty which was introduced into evidence plainly states that the warranty is made by the Oldsmobile Division of General Motors Corporation. There is evidence that a,t the time the title to the automobile passed to the purchaser said automobile was defective. The jury found the battery to be defective as a result of poor materials or poor workmanship. A breach of the implied warranty of merchantability is established. Sec. 2.314, Tex. Bus. & Com.Code. The car does not “conform to the contract.” Sec. 2.106, Tex.Bus. & Com.Code. There is no evidence that the non-conformity substantially impaired the value of the car to plaintiff as the law requires before the plaintiff can revoke his acceptance of the car and recover the price paid. Sec. 2.608, supra. His remedy was an action for damages, and he failed to present evidence to support an award based on a proper measure of damages, i. e., the value of the automobile in its non-conforming condition at the time and place of acceptance. Sec. 2.714, Tex.Bus. & Com.Code.

The judgment of the trial court is reversed and judgment is here rendered that the plaintiff, Daniel J. Mulcahy, take nothing.

      . All citations unless otherwise shown are to Vernon’s Texas Codes Annotated, Business & Commerce.

      . “It is especially agreed that there are no warranties, expressed or implied, made by either the dealer or the manufacturer other than the manufacturer’s warranty against defective materials as stated in the Oldsmobile Owner’s Manual." (emphasis added)


source: Caselaw Access Project

author: PEDEN, Justice.

license: Public Domain

text:
    Rita B. WALLACE, Appellant, v. Charles Elwin FITCH, Appellee.
    No. 16621.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 5, 1976.

      Daniel Bruce Beeler, Houston, for appellant.
    Smith, Schulman, Rawitscher & Cordray, Jack J. Rawitscher, Houston, for appellee.
   PEDEN, Justice.

Mrs. Rita Wallace appeals from an order designating her former husband as managing conservator of their child after a jury trial. Mr. Fitch, the child’s father, initiated this proceeding by filing a motion pursuant to Sec. 14.08, Texas Family Code.

The father alleged in his motion that because of a substantial and material change of circumstances since the last order appointing a managing conservator, the best interest of the child would be served by the requested change, stating that the mother had so neglected and permitted mistreatment of the child as to damage his health and well-being, and setting forth alleged circumstances. Mrs. Wallace answered by general denial. The only special issue and the jury’s answer to it were:

“Do you find from a preponderance of the evidence that since the former decree granting custody of the minor child, John Cooper Fitch to Rita B. Wallace, there has occurred such a material change of conditions that the best interest of said minor child require a change of custody to Charles Elwin Fitch?
“Answer: ‘We do’ or ‘We do not’. ANSWER: we do
“In connection with the foregoing special issue you are -instructed that not every change of condition justifies the modification of a former decree of divorce awarding the custody of the minor child. Such changed conditions must be such as affect the welfare and best -interests of the child and be of such nature that to leave the custody of the child as previously adjudicated would be injurious to the welfare of the child and requires that such custody be changed.
“In connection with the foregoing special issue you are further instructed that the sex of the parties shall play no part in your deliberations and you shall give no consideration to same.”

The judgment appointing Mr. Fitch managing conservator of the child was signed and entered on June 4, 1975.

The appellant’s points of error are that the trial court erred in overruling her motion for new trial in that 1) there was no evidence to support the jury verdict, 2) the evidence was factually insufficient to support the jury verdict, 8) the father failed to plead and prove a material change in conditions of the child, and 4) the trial court erred in failing to grant the mother’s motion for instructed verdict. We will consider the first point as a legal insufficiency point and the second as a great weight point.

We review the evidence. Dr. Dana Williams, a pediatrician, testified that when he examined John Cooper Fitch on July 18, 1974, in the presence of Mrs. Wallace and Mr. Fitch, he discovered two lesions on the instep of the child’s right foot that looked like burns. In his opinion there was no way possible, based upon a reasonable medical probability, that the lesions could have been mosquito bites. He was unable to get a history from the child.

The father, Mr. Charles Fitch, testified that he took photographs of the child’s foot the day after he took him to the doctor. They were admitted in evidence. When his son, aged three-and-a-half, told him how he received the marks on his foot, Mr. Fitch confronted his ex-wife and called Dr. Williams to make the appointment to check out what had caused them. Mrs. Wallace told him she thought they were mosquito bites that he had gotten on a recent trip. Mr. Fitch lives with his present wife in a three bedroom home in West University Place and feels he is financially able to care for the child. His mother, Mrs. Melba Fitch, testified that when the child told her how he had received the marks on his foot she was concerned for his welfare.

Betty Tate, a former wife of the child’s stepfather, Ed Wallace, testified by deposition. She was his fourth and last wife before he married the appellant. She divorced him in 1973 after living with him a total of five weeks. She had had three children by a prior marriage. She and Wallace separated because they could not agree on how her children should be raised. He did not allow them to talk at the table or play in the house, not even in their own rooms. Her son, who was not yet three years old, was slapped on the hand by Mr. Wallace for putting his hand in his plate. She felt that he was not a fit stepfather for her children and that he did not want her children to have any friends. He complained when she gave their friends some cake. On his days off he would start drinking beer as soon as he finished breakfast, and he was drunk more than fifty per cent of the time. On cross-examination Mrs. Tate said that her children were the most important thing to her and that she made Mr. Wallace aware of that fact before their marriage.

Dr. Jack Bevil, a general practitioner, was called to testify by the appellant. He examined the child the day after Dr. Williams had seen him. He was of the opinion that the lesions were either the result of a bug bite or some healing impetigo, but they could have been started by a burn.

Mrs. Rita Wallace, the appellant, testified that she and her husband, Ed Wallace, now reside in Des Moines, Illinois, a suburb of Chicago. She is an x-ray technologist and teaches at DePaul University. They were at an outdoor barbecue in Chicago with friends of her husband when the child received the two lesions, plus two more on his back, and she noticed them the next day. They seemed to get worse, and she put some medicine on them. Ed Wallace does not abuse the boy. He has spanked him about three times with his hand, but only when there was a reason. The boy has been spanked for talking back to her. There is no friction between Wallace and her son and he does not appear to be scared of Wallace. Wallace would have a couple of beers on weekends, and one or two during the week. She has never seen him drink more than four highballs at a party. Neither she nor Ed Wallace smokes. She dated Ed Wallace for nine months before his divorce from his fourth wife.

Mrs. Estelene Denny testified that she married Ed Wallace in December of 1952, and they had three children during their marriage. He was a moderate drinker, was not quick-tempered and did not beat their children. He supports them regularly. He visited their children three times in the last twelve months and twice during 1973.

Mr. Ed Wallace, Rita’s present husband, said he did not ever burn her little boy. He did not cause the lesions. He had been married five times, two of them to one lady. He said he is not quick tempered and only spanks the child when he disobeys his mother. He gave up cigarette smoking in February or March (several months before the lesions appeared) at the request of his present wife. The boy has his own bedroom in their apartment. He admitted on cross-examination that he did not contribute to the support of his adopted daughter (of a prior marriage) until his former wife brought court charges, but his payments are current now. He said he did not drink excessively when married to Betty Tate. He does not drink every day. Before 1973 he was drunk on few occasions. He doesn’t normally keep a can of beer in his hand all day. He drinks, on an average, at least twice a week. He has been intoxicated on occasion in the last two years. He has a good relationship with John Cooper Fitch.

Mr. Bruce Beeler, who represented Mrs. Wallace only on appeal, was called a a witness on her behalf. She is his niece, and he has known Mr. Fitch well ever since they attended law school together about ten years ago. He visited with Rita Wallace, Ed Wallace, and John Cooper Fitch every week or so for several months before they moved to Chicago. He never did see Ed Wallace abuse or mistreat the boy; they had the best of rapport. He didn’t see the lesions. He has never seen Wallace intoxicated, but has seen him have a few drinks. In the early summer of 1974, Ed and Rita Wallace accompanied Bruce Beeler and his wife to the Bahamas on a vacation.

Section 14.08 of the Family Code has now been amended in some respects. It provided at all times pertinent to this cause (prior to September 1, 1975), that one who moved for modification of a court order providing for managing conservatorship of a child had the burden of showing that the circumstances of the child had materially and substantially changed and that modification would be in the best interest of the child.

We must first determine whether a material and substantial change of conditions was shown to have occurred between the date of the divorce decree (July 16, 1973) and the filing date of the instant proceedings (July 19, 1974). If so, we review the decision of the trial court and jury that the change of conditions was so material that the best interest of the child requires a change in his custody. Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.1966).

Some changes of conditions which have been held to be material are (1) marriage of one of the parties; (2) poisoning of the mind of the child by one of the parents; (3) one of the parties becoming an improper person for the custody; (4) changes in the home surroundings; (5) one of the parties becoming mean to the child. Leonard v. Leonard, 218 S.W.2d 296 (Tex.Civ.App.1949, no writ).

In our case the only evidence of probative force to support the jury’s verdict arose from the remarriage of the custodial parent after she was named managing conservator of her son. Thus the child was placed in a new relationship, one with his stepfather. A marriage of the managing conservator that places the child with a person who is not a suitable and proper stepparent may result in such a material change in conditions that it would be in the best interest of the child to change managing conservators. Although we might not have made the same decision, there was evidence from which the jury was entitled to conclude that since Rita Wallace married Ed Wallace it would be in the best interest of John Cooper Fitch to make his father the managing conservator. An adult person’s future conduct may well be measured by his recent deliberate past conduct as it may be related to the same or a similar situation. De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359 (1960). The evidence of acts from which the jury could decide whether Ed Wallace has recently been and probably is a suitable stepfather is sharply conflicting, and the jury was the judge of the credibility of the witnesses. There was only innuendo, no evidence that Mr. Wallace intentionally burned the boy, but the jury was entitled to believe that his paternal grandmother and his father were greatly concerned by whatever he told them about the two lesions that looked like burns, and it could have decided that Mr. and Mrs. Wallace’s neglect contributed to causing the lesions.

As the court stated in Dohrmann v. Chandler, 485 S.W.2d 232 at 237 (Tex.Civ.App. 1968, no writ) citing Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963) and Bukovich v. Bukovich, supra:

“There is no definite guideline as to what evidence constitutes a material change of circumstances or conditions that affect the welfare of a small child. However, we believe that the same must be decided in each case according to the circumstances as they arise. We know that the jury had an opportunity to observe and evaluate the personalities of the contending claimants, to weigh the credibility of their testimony, and to assess the physical, mental, moral and emotional needs of the child. The jury’s verdict binding by statute the trial court’s judgment also binds our hands when supported by evidence. The trial court who also observed all of the evidence, refused to grant a new trial, and as such did not abuse its discretion.”

We affirm the judgment of the trial court.


author: GUITTARD, Justice.

text:
    ADVANCE IMPORTS, INC., Appellant, v. GIBSON PRODUCTS CO., INC. OF SHERMAN, Appellee.
    No. 18762.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 5, 1976.

      Herman A. Lusky, Ungerman, Hill, Un-german, Angrist, Dolginoff & Teofan, Dallas, for appellant.
    Leo C. Michaud, Dallas, for appellee.
   GUITTARD, Justice.

This suit for debt originated in the justice court. After the justice of the peace rendered judgment for plaintiff by default, the defendant filed an appeal bond with the justice, and a transcript of the proceedings was filed in the county court at law. More than two years later the county court at law dismissed the appeal on the ground that defendant had not paid the filing fee of ten dollars required by Tex.Rev.Civ.Stat.Ann. art. 3930(b) (Vernon Supp.1975) and also on the ground that defendant had not made an appearance “at the next term of court,” as required by Tex.R.Civ.P. 571. We hold that • the dismissal cannot be justified on either ground, and, consequently, we remand the case to the county court at law for trial.

Payment of Filing Fee

The record shows that the clerk of the county court at law accepted and filed the transcript of the proceedings and docketed the case without requiring payment of the fee provided by article 3930(b). More than two years later plaintiff moved to dismiss the appeal, and defendant then paid the fee, but the court nevertheless sustained the motion and signed an order dismissing the appeal.

Plaintiff argues that since jurisdiction of appeals from the justice courts is granted to county courts by Tex.Const. art. 5 § 16 “under such regulations as may be prescribed by law,” and since the ten-dollar filing fee is prescribed by statute, its payment is a prerequisite to jurisdiction. We do not agree.

Article 3930(b) is a comprehensive statute prescribing various fees to be collected by clerks of the county courts. Section lA(l)(a) prescribes, among other fees, the following:

For each original cause or suit in a County Civil Court, including, but not limited to, appeals from Justice of the Peace Courts ... a fee to be due and payable, and to be paid by the plaintiff or plaintiffs, or appellant or appellants, at the time said cause or suit is filed, started or initiated .
(i) For causes or dockets involving damages, debts . . . appeals from Justice of the Peace Courts . a fee of $10.00.

We find no indication in this statute of a legislative intent to make payment of this fee, or any other fee prescribed, a prerequisite to jurisdiction. Of course, the clerk may refuse to accept the case for filing if the fee is not paid. Knight v. Cadena, 467 S.W.2d 692 (Tex.Civ.App.—San Antonio 1971), writ ref’d n.r.e., 474 S.W.2d 687 (Tex.1971). If he accepts and files the transcript without payment of the fee, his duty to collect the fee continues. In the Knight case, the Supreme Court expressly left open the question of whether the appel-lee may pay the fee and obtain a trial de novo. Presumably, therefore, the court may decline to proceed with the trial de novo until the fee is paid. However, we cannot accept plaintiff’s argument that if the clerk by oversight or otherwise dockets the appeal without requiring payment of the fee, then the ease is unlawfully docketed, the county court never acquires jurisdiction, and the judgment of the justice court is reinstated. Imposing such a severe consequence of the clerk’s oversight on the justice court litigant would be so harsh and unjust that legislative intent to do so cannot be found by implication, and we find no explicit statutory language requiring such a result. Consequently, we hold that failure to pay the fee does not affect the jurisdiction of the county court.

Plaintiff contends further that perfection of an appeal from the justice court is a “two-step process,” requiring both filing the appeal bond in the justice court and filing the transcript, together with payment of the fee, in the county court, and that unless both steps have been completed, the judgment of the justice court remains in effect. We find no support for this view in the rules governing appeals from the justice courts. Tex.R.Civ.P. 571 prescribes the terms of the appeal bond and provides:

When such [appeal] bond has been filed with the justice, the appeal shall be held to be thereby perfected and all parties to said suit . . . shall make their appearance at the next term of court to which said case has been appealed. [Emphasis added.]

Rule 572 provides for an affidavit of inability to pay costs and the procedure for contesting such an affidavit. Rule 573 provides:

When the bond, or the affidavit in lieu thereof, provided for in the rules applicable to justice courts, has been filed and the previous requirements have been complied with, the appeal shall be held to be perfected. [Emphasis added.]

The “previous requirements” referred to in rule 573 evidently do not include filing the transcript in the county court and payment of the filing fee because the only provision concerning the transcript is found in the rule next following, rule 574, which provides:

Whenever an appeal has been perfected from the justice court, the justice who made the order, or his successor, shall immediately make out a true and correct copy of all the entries made on his docket in the cause, and certify thereto officially, and immediately send it together with a certified copy of the bill of costs taken from his fee book, and the original papers in the cause, to the clerk of the county court of his county, or other court having jurisdiction. [Emphasis added.]

The language of these rules leaves no doubt that the duty of the justice to prepare a transcript of his docket entries and transmit it, along with the original papers, to the clerk of the county court, and the duty of the clerk to file the transcript and papers and collect the filing fee do not arise until the appeal “has been perfected” by filing the bond or affidavit. Consequently, failure of the justice or clerk to perform any of these ministerial duties does not reinstate the judgment of the justice court. That judgment is vacated by filing the appeal bond. See Harter v. Curry, 101 Tex. 187, 105 S.W. 988, 989 (1907). Any dismissal by the county court after the appeal “has been perfected” from the justice court would not be a dismissal of the appeal, but a dismissal of the action, and would leave the matter standing as if no suit had been filed.

Appearance at “Next Term”

The second ground recited by the county court at law for dismissing the appeal was failure of the defendant to make an appearance at the “next term of court,” as required by Tex.R.Civ.P. 571. We hold that this ground also is untenable.

Plaintiff acknowledges that defendant made an appearance in the county court by filing the appeal bond on April 30, 1973, and also by filing an answer on May 3, 1973, but plaintiff insists that the provisions of rule 571 above quoted required an appearance also at the “next term of court,” which began in June 1973. The evident purpose of the rule is to require the parties to appear no later than the “next term of court.” We hold that an appearance at one term of court is effective also for the “next term” under the principle that an appearance, once made, cannot be withdrawn. Williams v. Huling, 43 Tex. 113, 120 (1875). Consequently, we need not consider whether a party’s failure to make an appearance as required by the rule would be ground for dismissal of the appeal and reinstatement of the judgment of the justice court.

The judgment of dismissal is reversed and the cause is remanded to the county court at law for trial de novo.

      . The trial court’s order of dismissal was entered before the effective date of Tex.R. Civ.P. 143a which provides:
      If the appellant fails to pay the costs on appeal from a judgment of a justice of the peace or small claims court within twenty (20) days after being notified to do so by the county clerk, the appeal shall be deemed not perfected and the county clerk shall return all papers in said cause to the justice of the peace having original jurisdiction and the justice of the peace shall proceed as though no appeal had been attempted.
      This rule was adopted by the Supreme Court at the suggestion of the Honorable Tom King, former judge of the County Court of Dallas County at Law Number Two, for the purpose of remedying the problem of how to dispose of appeals perfected from the justice court under rule 571, but not docketed for trial de novo because of nonpayment of costs. This rule is consistent with our view that failure to pay the-fee at the time of filing the appeal does not leave the judgment of the justice court in force. Under the new rule, the judgment is reinstated only if the appellant persists in his failure to pay the costs after notice from the clerk.

      . See Hairston & Peters v. Southern P. Ry., 94 S.W. 1078 (Tex.Civ.App.1906, no writ).


author: ELLIS, Chief Justice.

text:
    Leo MOORE, Appellant, v. LUMBERMEN’S MUTUAL CASUALTY COMPANY, Appellee.
    No. 8590.
    Court of Civil Appeals of Texas, Amarillo.
    Feb. 9, 1976.
    Rehearing Denied Feb. 23, 1976.

      Tom Upchurch, John L. Lesly, Amarillo, for appellant.
    Culton, Morgan, Britain & White, Jess C. Dickie, Amarillo, for appellee.
   ELLIS, Chief Justice.

This is an appeal brought by Leo Moore, defendant-appellant, from a summary judgment rendered in favor of Lumbermen’s Mutual Casualty Company, plaintiff-appel-lee, declaring that appellee was not liable, under the terms of a compromise settlement agreement entered into by the parties, for any future hospital and other medical expenses except for those authorized and performed by certain physicians named in the compromise settlement agreement. Affirmed.

Appellant was injured on June 7, 1972. He filed a claim for workmen’s compensation benefits, and on December 7, 1972, appellant and appellee entered into a compromise settlement agreement. The agreement disposed of any and all claims which appellant had as a result of the injuries he sustained on the occasion in question. Appellant received in settlement of his claim $8,750 in addition to $1,218 received by appellant prior to the execution of the agreement. The agreement provided for the payment by appellee of all future hospital and medical expenses resulting from appellant’s injury for a period ending thirty-six months after the date of the agreement “limited to Drs. M. M. Stephens, Jr. C. J. Batson, Norton Bicoll, Hugh B. Currie and William Klingensmith, but excluding any psychiatric care.” The compromise settlement agreement was approved by the Industrial Accident Board on December 20, 1972.

Approximately two months after execution of the agreement, a claims adjusting agent for appellee received bills for treatment and services from various doctors, pharmacies, and a hospital for expenses incurred subsequent to the execution and approval of the compromise and settlement. The bills were for medical treatment rendered by physicians other than those designated in the agreement and for medicines prescribed and certain medical and hospitalization services related to such treatment. One of the physicians named in the agreement had referred the employee to two physicians not named in the agreement. The claims adjuster refused to approve payment of the claims asserting that they represented unauthorized expenses under the terms of the agreement.

Appellee filed this suit for declaratory judgment for determination of the question of appellee’s liability for the expenses incurred and as to its future liability for medical expenses under the terms of the agreement. Appellant answered and counterclaimed, thereby joining issue with ap-pellee on the matter of the coverage as provided under the compromise settlement agreement. Thus, the jurisdiction of the trial court was invoked to determine the extent of the future medical benefits provided under the terms of the agreement.

Both parties filed motions for summary judgment, and appellee’s motion was granted. Judgment was rendered for appellee, and a take-nothing judgment was rendered against appellant on his counterclaim. Further, under the judgment, the appellee is neither liable for any future medical expenses except for medical services performed by the five doctors named in the agreement, nor for any future hospital expenses except those authorized by such five named doctors.

Appellant contends in two points of error that as a matter of law appellee is liable for expenses arising from medical treatment furnished and hospital care and drugs prescribed by any physician to which appellant was referred by any of the physicians named in the compromise settlement agreement.

Appellant contends that the purpose, spirit and intent of Tex.Rev.Civ.Stat.Ann. art. 8306 § 7 were incorporated by reference into the agreement. Art. 8306 § 7, in December, 1972, provided in substance that the insurance carrier shall furnish such medicines and medical care as may reasonably be required to cure and relieve at any time after the time of the injury. Art. 8307 § 12 provides: “[w]here the liability of the association [insurer] or the extent of the injury of the employee is uncertain, indefinite or incapable of being satisfactorily established, the board may approve any compromise, . . . settlement or commutation thereof made between the parties.”

It is well established that a compromise settlement agreement, when approved by the Board, is binding upon the parties to it unless and until the agreement is lawfully set aside. Lowry v. Anderson-Berney Bldg. Co., 139 Tex. 29, 161 S.W.2d 459 (1942); Davis v. Commercial Standard Ins. Co., 194 S.W.2d 599 (Tex.Civ.App.—Dallas 1946, writ ref’d n. r. e.). Also, see Pearce v. Texas Employers Insurance Association, 403 S.W.2d 493 (Tex.Civ.App.-Dallas 1966), writ ref’d n. r. e. per curiam, 412 S.W.2d 647 (Tex.1967). Art. 8306 § 7, providing the broad medical services and implemented by art. 8307 § 5 (which has reference only to awards of the Board and judgments of a court) has no application to a compromise settlement agreement approved by the Board. Pearce v. Texas Employers Insurance Association, supra. In the light of the foregoing authorities, it is apparent that when the employee enters into a compromise settlement agreement with the insurer regarding future medical benefits the employee’s benefits are measured by and limited to the specific terms of the agreement as approved by the Board.

In view of the foregoing, it is our opinion that the agreement in the instant case precludes the liability of appellee for the expenses incurred as a result of the referrals. By naming the physicians whose care and treatment was authorized, the agreement impliedly excluded physicians not named in the agreement, especially in view of the use of the words “limited to.” Tower Corporation v. Morris, 158 S.W.2d 654 (Tex.Civ.App.-Dallas 1941, writ ref’d w. o. m.). We find no provision in the compromise and settlement agreement authorizing “referrals” at carrier’s expense. Appellant’s points of error are overruled.

For the reasons above stated the judgment of the trial court is affirmed.


author: STERNBERG, Justice.

text:
    Dottie MITCHELL, Appellant, v. HOUSING AUTHORITY OF HARLAN, Appellee.
    Supreme Court of Kentucky.
    Jan. 9, 1976.
    Rehearing Denied March 19, 1976.
    Kenneth M. Boggs, Barbourville, for appellant.
    James S. Greene, Jr., Harlan, for appel-lee.
   STERNBERG, Justice.

In a forcible detainer action brought in the Harlan City Court by the Housing Authority of Harlan, appellant Dottie Mitchell was found guilty.

Appellant filed a traverse of the judgment of the city court and executed a traverse bond (KRS 383.255). Following a trial de novo in the Harlan Circuit Court, judgment was again entered finding appellant guilty of forcible detainer. A motion and grounds for a new trial were filed and, after a hearing, overruled.

Appellant claims that no pleadings were filed and no warrant was served on her commencing the initial action in the city court. Since a warrant was not included in the record transferred from the Harlan City Court, appellant takes the position that one was never issued. Based on this claim of prejudicial error, she argues that the judgment against her is void. This is the only issue raised on appeal.

For purposes of disposition of this appeal, we will assume that no warrant was issued from the Harlan City Court.

For some time this court has followed the principle that in a forcible detainer action objections to a defective warrant, as well as an informal inquisition, are waived by traverse. Swartzwelder v. U. S. Bank, 1 J.J. Marsh. 38 (1829); Barret v. Chitwood, 2 Ribb. 431 (1811). This principle was also followed in Goebel v. Rogers Brothers Coal Co., 220 Ky. 598, 295 S.W. 907 (1927). The rule of these cases applies in a situation in which a warrant was not issued prior to the initial proceeding in the city court. When appellant filed a traverse, she waived any objections to procedural errors relating to the original complaint or to the issuance or sufficiency of the warrant.

At any rate, following the traverse, appellant was given a trial de novo in the circuit court, with adequate notice of the nature of the proceedings against her. Therefore, her cause was not prejudiced by the alleged failure to serve a warrant prior to the initial proceeding.

The judgment is affirmed.

All concur.


author: PALMORE, Justice.

text:
    Joseph Edward NIEMEYER and Leroy D. Tolbert, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 6, 1976.

      Jack Emory Farley, Public Defender, Vincent D. Giovanni, Asst. Public Defender, Frankfort, for appellants.
    Ed W. Hancock, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

The appellants, Niemeyer and Tolbert, were tried and convicted of rape and their sentences fixed at life imprisonment. The only serious question presented by their appeal concerns the admission of testimony elicited by the Commonwealth’s Attorney during his questioning of the prosecutrix, the arresting officer and the appellants, and comments made during his closing argument.

Niemeyer and Tolbert were among a group of men who participated in the gang-style rape of Karen Zerhusen, the prosecu-trix. At the time of the assault she and her fiancé were seated in a car parked in Kenton County. The men dragged her from the car, forced her into their automobile, and then drove to another location, where they beat and repeatedly raped her. Her fiancé also was beaten by the men. The appellants acknowledged their presence at the scene of the crime but denied any participation in the rape. They claimed to have been unable to prevent their associates from raping the victim because they were “too drunk or something.” They were arrested shortly after the crime and were identified by both the prosecutrix and her fiancé as participants.

During the trial the Commonwealth’s Attorney, over objection by defense counsel, questioned both the prosecutrix and the arresting officer about the appellants’ failure to deny their guilt at the time of the identification procedure and at the time of the arrest:

DIRECT EXAMINATION OF PROSE-CUTRIX BY COMMONWEALTH
“DQ 205. In your presence, and in the presence of the police officers, and in the presence of the Defendants there, did either of the three Defendants, Niemeyer, Northcutt or Tolbert, deny that they had done it, after you accused them_”
DEFENDANTS’ OBJECTION: “We object.”
RULING OF THE COURT: “Overruled.”
“DQ 206. After you accused them of it, did they deny that they had done it?
“A. Well, when I was in the police cruiser and I identified each one, then that was it,_
“DQ 207. (Interposing) I’m asking you, did they deny it?”
DEFENDANTS’ INTERJECTION: “Just a minute.”
“DQ 209. Did you hear any denial?”
DEFENDANTS’ OBJECTION: “We object, Judge.”
RULING OF THE COURT: “Overruled.”
DIRECT EXAMINATION OF OFFICER GALL BY COMMONWEALTH
“DQ 55. Name them, again.
“A. Mister Tolbert, Mister Niemeyer, and Mister Northcutt.
“DQ 56. And did they make any denial of the identification by her?
“A. No, sir.”
DEFENDANTS’ OBJECTION: “We object.”
RULING OF THE COURT: “Overruled.”
DEFENDANTS’ RESPONSE: “Judge, there hasn’t been a proper foundation laid.” '
RULING OF THE COURT: “Overruled.”
“A. No, sir.
“DQ 57. What happened then?
“A. They were placed under arrest at that time for rape.”

The defense attorney then elicited on cross-examination from the arresting officer that actually Niemeyer and Tolbert had been unable to see or hear the prosecutrix during the identification process at the police station:

CROSS-EXAMINATION OF OFFICER GALL BY DEFENSE COUNSEL
“CQ 7. And Mister O’Hara twice said that Karen Zerhusen identified these three boys who sit here at the table, and they didn’t say anything, they didn’t deny the charge; now I want you to tell this Jury were these three Defendants in her presence and knew what she was doing at the time she identified them when she first identified them?
“A. At the first time she identified them I don’t believe they knew.
“CQ 8. They didn’t know what she was doing with you, did they?
“A. No, sir, she was in the automobile.
“CQ 9. Now out at the Kenton County Police Station you had her looking through a window where she could see them, and they couldn’t see her, didn’t you?
“A. Yes, sir.
“CQ 10. So, they didn’t know that she was identifying them at the police station?
“A. No, sir.
“CQ 11. Well, what do you mean by telling this Jury that they didn’t deny the charge of rape when this woman identified them?
“A. They didn’t deny it.
“CQ 12. Well, they didn’t know they were being identified, did they?
“A. I don’t believe that they did.”

Niemeyer and Tolbert were both questioned by the Commonwealth’s Attorney about the failure to offer any exculpatory information when they were identified by the prosecutrix and when they were arrested.

CROSS-EXAMINATION OF TOLBERT BY COMMONWEALTH
“CQ 39. Who did have intercourse with Karen Zerhusen, Mister Tolbert?
“A. Meagher, Combs and Southworth. And Northcutt tried.
“CQ 40. Now isn’t that amazing.”
DEFENDANTS’ OBJECTION: “Now, Judge, we object to these comments.”
RULING OF THE COURT: “I’ll sustain. Sustained.”
“CQ 41. I suppose you told the police that, that night.”
DEFENDANTS’ OBJECTION: “We object.”
“A. No, sir.”
RULING OF THE COURT: “Overruled.”
“CQ 42. Why?
“A. Why should I?
“CQ 43. You were asked , weren’t you?”
DEFENDANTS’ OBJECTION: “We object.”
RULING OF THE COURT: “Overruled.”
“CQ 44. Weren’t you?
“A. Yes.
“CQ 45. You didn’t say anything, did you?
“A. No, sir.”
“CQ 46. You didn’t deny that you did it, did you?”
DEFENDANTS’ OBJECTION: Now, Judge, I_”
RULING OF THE COURT: “I’ll sustain your objection. I’ll sustain the objection. Continue with the trial.”
CROSS-EXAMINATION OF NIEMEYER BY COMMONWEALTH
“CQ 42. I suppose you told the police, when they came, this story about Mister Meagher and Mister Combs?
“A. No, sir.
“CQ 43. They asked you if you wanted to make a statement, didn’t they?”
DEPENDANTS’ OBJECTION: “We object.”
RULING OF THE COURT: “Overruled.”

The attorney for the Commonwealth made direct reference in his closing argument to the appellants’ refusal or failure to deny guilt at the time the identifications were made and at the time of arrest:

“Today, July the 9th, 1970, roughly eight months after the commission of this offense, these Defendants come into court and say, T didn’t do it. Meagher did it, Combs did it, and a dead man did it.’ If you were accused of a crime that was going to deprive you of your liberty, for the rest of your life, without parole, without parole, because that’s what we’re to do, would you wait eight months, eight weeks, eight days, eight minutes, eight seconds to say to the police officer, ‘Now, wait a minute. I was there, but I didn’t do it. The two little guys, who escaped, and Southworth did it.’ Would you do that? Well, if you didn’t, you wouldn’t be living a normal life. And had they done that, I can assure your that the Sergeant Galls and the Patrolmen Reimers, and the Patrolmen Hattons, and, yes, the Commonwealth’s Attorney’s office, for those of you who might know my reputation, would have left no stone unturned to bring to the Bar of Justice those culprits, provided the proof could be established. But no, even when they are accused on the scene, they don’t utter a word.”
DEFENDANTS’ OBJECTION: "Judge, we object. We object to that statement, Judge.”
INQUIRY BY THE COURT: “_they don’t utter a word?”

The admission of evidence pertaining to the appellants’ silence in the face of accusations and the comments of the Commonwealth’s Attorney constitute serious error. Appellants had been advised of their Miranda rights and were not required to make any statements concerning their guilt or innocence. The efforts of the prosecution to impeach each appellant by reference to his silence at the time of identification and at the time of arrest plainly violated his Fifth Amendment right to remain silent.

This court has said previously that the fact that an accused is under arrest and has the benefit of Miranda is sufficient to render inadmissible any accusatory statements in his presence even though he chose to remain silent. Cessna v. Commonwealth, Ky., 465 S.W.2d 283, 285 (1971). Although Cessna involved the apparent adoption of a statement by the defendant’s wife, the principle of that case is applicable here. Evidence of the appellants’ failure to make exculpatory statements during the identification procedure or at the time of arrest after Miranda warnings are issued cannot be admitted at trial.

The United States Supreme Court has recently addressed this problem in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). In the exercise of its supervisory powers over the federal courts that court observed that the potential for prejudice outweighs the probative value of evidence of silence by the defendant at the time of arrest. It said also that permitting the defendant to explain the reasons for his silence is not likely to overcome the strong negative inference the jury is likely to draw from the silence. Despite the fact that the errors committed in this case involve the appellants’ constitutional rights, such errors are not necessarily prejudicial, thus requiring reversal. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Watkins v. Commonwealth, Ky., 465 S.W.2d 245 (1971). In determining whether an error is prejudicial an appellate court must consider whether upon the whole case there is a substantial possibility that the result would have been any different. Abernathy v. Commonwealth, Ky., 439 S.W.2d 949, 952 (1969).

Two important circumstances in making such a determination are the weight of the evidence and the degree of punishment fixed by the verdict. The evidence presented in support of the appellants’ guilt in the instant case was overwhelming. They admitted their presence at the crime scene in the company of two other men who did rape the prosecutrix. The victim identified them as two of the men who raped her. The only evidence offered in defense was their testimony relating to an alcohol or drug-induced inability to restrain their associates from carrying out the rape.

The penalty imposed by the jury was not the minimum sentence, but “split the middle” between life without parole and ten to twenty years in the penitentiary. KRS 435.090. It is our conclusion beyond a reasonable doubt that the errors and irregularities were not prejudicial.

Some of the constructions placed by the United States Supreme Court in recent years upon various protections guaranteed to individuals by the Constitution have brought dismay and discouragement to those charged with enforcing the laws against crime. Nevertheless, that court is the final authority in the field of federal constitutional jurisprudence, and what it has said on the subject of the right of silence not only is and was the law of this case, but well before the trial of this case had been expressed in no uncertain terms by its celebrated (and as often execrated) opinion in Miranda v. Arizona, 384 U.S. 436, 468, fn. 37, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966), as follows:

“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”

One of the finest offices the public can give to a member of the legal profession in this state is that of Commonwealth’s Attorney. Its very status becomes a mantle of power and respect to the wearer. Though few are apt to wear it lightly, some forget, or apparently never learn, to wear it humbly. No one except for the judge himself is under a stricter obligation to see that every defendant receives a fair trial, a trial in accordance with the law," which means the law as laid down by the duly constituted authorities, and not as the prosecuting attorney may think it ought to be.

We consider this to be an inexcusable example of abuse by a public prosecutor. Officially, publicly, and as a word of caution to other similar officers, we disapprove of and condemn it.

The judgment is affirmed.

All concur except for LUKOWSKY, J., who did not sit.


author: GUNN, Judge.

text:
    William G. BRASK et al., Plaintiffs-Respondents, v. BANK OF ST. LOUIS et al., Defendants-Appellants.
    Nos. 36434, 36457, 36475.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 18, 1975.
    Motion for Rehearing or Transfer Denied Jan. 23, 1976.
    Application to Transfer Denied March 8, 1976.
    Burton H. Shostak, St. Louis, for defendant-appellant Bank of St. Louis.
    Albert E. Schoenbeck, Steven M. Schoen-beck, St. Louis, for defendant-appellant Prudential Savings & Loan Assn.
    Harry G. Neill, Jr., St. Louis, for defendant-appellant Polaski Savings & Loan Assn.

      Julius H. Berg, St. Louis, for plaintiffs-respondents.
   GUNN, Judge.

This appeal involves a declaratory judgment action seeking determination under § 448.080 of the Missouri Condominium Property Act of the priority of rights between condominium common expense liens and prior recorded deed of trust encumbrances. The trial court found that the common expense liens were superior to the deed of trust encumbrances'. The deed of trust holders appeal, urging that the trial court’s decision is contrary to the express statutory language of § 448.080(2) RSMo 1969. We find that the trial court’s decision is contradictory to § 448.080 and reverse the judgment.

The facts have been stipulated. Plaintiffs-respondents are the duly elected board of managers of Hazelcrest I and II Condominium located in St. Louis County. Defendants-appellants Bank of St. Louis, Pulaski Savings & Loan Association and Prudential Savings and Loan Association are lending institutions and holders of deeds of trust on certain units in Hazelcrest I & II Condominium. The other defendants-appellants are unit owners of the condominium, having purchased their units after deed of trust foreclosure. The Hazelcrest Condominium declaration was recorded on October 21,1964 in accordance with the Missouri Condominium Property Act. By virtue of the recorded declaration, each year plaintiffs have assessed an estimated cost amount to each unit owner to cover the common expense costs incurred by the condominium management for the benefit of all the unit owners. The assessment for the common expense costs is made in proportion to each owner’s percentage of ownership in the common elements. The Ha-zelcrest Condominium declaration contains a provision taken from the matrix of § 448.-080(2) establishing a lien for common expenses on any unit of the property for which the common expense has not been paid. § 448.080(2), in pertinent part, provides:

“2. If any unit owner fails or refuses to make any payment of the common expenses when due, the amount thereof shall constitute a lien on the interest of such unit owner in the property, and upon the recording of notice thereof by the manager or board of managers shall be a lien upon such unit owner’s interest in the property prior to all other liens and encumbrances, recorded or unrecorded; except only taxes, special assessments and special taxes theretofore or thereafter levied by any political subdivision or municipal corporation of this state and other state or federal taxes which by the law are a lien on the interest of such unit owner prior to pre-existing recorded encumbrances thereon, and encumbrances on the interest of such unit owner recorded prior to the date such notice is recorded which by law would be a lien thereon prior to subsequently recorded encumbrances, but only if such prior recorded encumbrance contains a statement of a mailing address in the State of Missouri where notice may be mailed to the en-cumbrancer thereunder. . . . ”

The plaintiffs, as board of managers of Hazelcrest Condominium, have filed notice whenever a unit owner has failed to pay an assessment for common expenses when due in order to establish a lien for such expenses. But substantially all of the condominium units are subject to recorded deeds of trust to secure purchase money and other notes for borrowed money with each such deed of trust containing the § 448.080(2) requisite statement of a Missouri mailing address. The particular condominium units which are involved in this case are encumbered by deeds of trust held by the defendant lending institutions, and there have been foreclosures on the deeds of trust by defendant lending institutions upon default by previous unit owners. It has been by virtue of the deed of trust foreclosures that defendants Life Insurance Company of Virginia, Mary A. Williams, S.B. Spizman and Larry May Realty Co. have become owners of the particular condominium units here involved. Subsequent to the recording of the deeds of trust held by defendants, the plaintiffs recorded appropriate notice of assessment for common expenses due and owing on the particular units. Critical to the determination of this case is the fact that each deed of trust foreclosed by the defendant lending institutions had been recorded in compliance with § 448.080(2) and the Hazelcrest Condominium declaration prior to the recording by plaintiffs of the notice of assessments due and owing for common expenses on the units involved. None of the assessments for common expenses due and owing at the time of the foreclosure sales has been paid. The issue which we must decide is which encumbrance has priority — 1) the prior recorded deeds of trust; or 2) the later recorded lien for common expenses filed at the time the annual assessments became due and owing?

The trial court declared that the liens for common expenses held by plaintiffs were prior in right. The trial court made the following findings which served as a basis for its conclusion: 1) that the deeds of trust were subordinate to the common expense liens since the latter were covenants running with the land by which each grantee was bound pursuant to the condominium declaration; 2) that by reason of the recorded condominium declaration, the condominium units were subject to an inchoate lien for all common expense assessments, and when the assessments were made, the liens related back to the time of the recording of the declaration; 3) that the deed of trust foreclosure sales did not extinguish or otherwise affect the superior common expense liens held by plaintiffs; 4) that the defendant lending institutions acquired their deed of trust encumbrances with the knowledge that the common expense assessments ran with the land and that the common expense assessments were thereby superior in right to the deeds of trust; 5) that the mere fact that the deeds of trust contained statements of address where notice of subsequent encumbrances could be mailed did not affect plaintiffs’ liens for common expenses. In reaching its conclusion the trial court was influenced by the following provision of the condominium declaration which was recorded prior to the recording of defendants’ deeds of trust.

“Each grantee . . . , by the acceptance of a deed or conveyance, or each purchaser, accepts the same subject to all restrictions, conditions, covenants, reservations, options, liens and charges, and the jurisdiction, rights and powers created or reserved by this Declaration or to which this Declaration is subject, and all rights, benefits and privileges of every character hereby granted, created, reserved or declared, and all impositions and obligations hereby imposed shall be deemed and taken to be covenants running with the land, and shall bind any person having at any time any interest or estate in said land, and shall inure to the benefit of such unit owner in like manner as though the provisions of this Declaration were recited and stipulated at length in each and every deed of conveyance.”

However, the trial court’s conclusions and reliance on the foregoing provisions of the condominium declaration are contrary to the perspicuous language of § 448.080(2) and the concomitant declaration provisions taken from the paradigm of § 448.080(2). Section 448.080(2) expressly sets forth the priorities between the two types of encumbrances involved in this case. It is palpable from the following language of § 448.080(2) that the encumbrances of the defendant deed of trust holders under consideration here have priority over plaintiffs’ lien for common expense assessments:

“If any unit owner fails or refuses to make any payment of the common expenses when due, the amount thereof shall constitute a lien on the interest of such unit owner in the property, and upon the recording of notice thereof by the manager or board of managers shall be a lien upon such unit owner’s interest in the property prior to all other liens and encumbrances, recorded or unrecorded; except * * * encumbrances on the interest of such unit owner recorded prior to the date such notice is recorded which by law would be a lien thereon prior to subsequently recorded encumbrances, but only if such prior recorded encumbrance contains a statement of a mailing address in the State of Missouri where notice may be mailed to the encumbrancer thereunder. * * * ” (emphasis added)

The deed of trust encumbrances held by defendant lending institutions were recorded prior to the date that plaintiffs recorded the notice of failure of payment of common expenses, and the recorded deeds of trust contain the requisite statement of a Missouri mailing address. Hence, under § 448.-080(2), priority is given to the holders of encumbrances (in this case, defendant lending institutions) who record notices of their encumbrances prior to the date the common expense lien is recorded. The only proviso is that the prior recorded encumbrances contain a statement of a mailing address in Missouri where notice may be mailed, as each deed of trust does here. The commentators also agree that the Missouri Condominium Property Act gives priority to prior recorded encumbrances with the required mailing address. Ewing, Condominium in Missouri, Legal and Practical Aspects 20 J. of Mo.Bar, 65, 67 (1964); Comment, Missouri Condominium Property Act of 1963, 29 Mo.L.Rev. 238, 242 (1964). See Walbran, Condominium: Its Economic Functions, 30 Mo.L.Rev. 531, 562 (1965). Plaintiffs do not appear to question the authority of the State to establish priorities among competing interests. And as said in Condominium: Its Economic Functions, supra, at 555:

“Tax liens, mortgage liens, and mechanics’ liens, to name only the most obvious, will be competing with the common expense lien for payment from the value of the defaulting owner’s unit. It is within the power of the state to determine, at least for future liens, the order in which these liens shall be paid.”

The Missouri legislature has spoken and determined that the priority of encumbrances lies, in this case, with the prior recorded deeds of trust over subsequently recorded notices of common expenses due and owing.

The plain meaning of § 448.080(2) and its priority provisions were not circumvented or changed by the declaration relied on by the trial court. It is true that defendant lending institutions took their interests with notice of possible future liens for unpaid common expenses arising when the annual assessments became due, for § 448.080 establishes such liens. But under the statute, the notice is that a lien will arise when a unit owner fails to make payment for common expenses “when due,” and priority over some encumbrances will result “upon the recording of notices thereof by the manager or board of managers.” The recording “thereof” refers to the filing of notices of the lien arising from nonpayment of common expenses “when due.” The statute specifically provides for recording of the assessment after a unit owner has defaulted in payment of common expenses. It is then that the lien attaches, not before. The statute is clear and unambiguous, and in construing § 448.080 we must determine the legislative intent by ascribing the plain and ordinary meaning to the language used. State ex rel. Zoological Pk. Subd. of St. Louis v. Jordan, 521 S.W.2d 369 (Mo.1975); Pedroli v. Missouri Pacific RR, 524 S.W.2d 882 (Mo.App.1975); Hill v. Missouri Dept. of Public Health & Welfare, 520 S.W.2d 182 (Mo.App.1975).

By seeking to expand their interests beyond what is afforded by § 448.080, plaintiffs are in effect arguing that they are entitled to an equitable or contractual lien. An equitable lien remedy is not available for plaintiffs when they have, as here, their remedy at law under a statutory lien. Dean & Hancock v. O’Bryan, 290 S.W. 641, 643 (Mo.App.1927); Crowder Bros. v. Burlington Elevator Co., 176 Mo.App. 657, 159 S.W. 741, 745 (1913). The equitable lien doctrine applies only in cases where the law does not provide adequate remedy and justice would suffer without equitable relief. Wilkinson v. Tarwater, 393 S.W.2d 538, 542 (Mo.1965); Hahn v. Hahn, 297 S.W.2d 559, 565 (Mo. banc 1957). Plaintiffs’ protection is § 448.080.

Plaintiffs also argue that despite the statute the legislature could not have intended to give a prior recorded encumbrance priority over a common expense lien merely because the former included a mailing address. Plaintiffs argue that such an instruction would be absurd in the light of the preliminary language of § 448.080 indicating that the legislature intended to make most liens inferior to common expense liens. But we cannot ignore the plain and unambiguous language of § 448.080. Pedroli v. Missouri Pacific RR, supra; State ex rel. School Dist. of Kansas City v. Young, 519 S.W.2d 328 (Mo.App.1975). Nor do we believe that the priorities established by the legislature were illogical or inadvertent as plaintiffs allege, in that money lenders are thereby encouraged to make credit available for prospective condominium buyers. See Missouri Condominium Property Act of 1963, supra, at 242; Condominium: Its Economic Functions, supra, at 556.

The final point we consider and which debouches from our previous conclusions is the effect of the foreclosures of the deeds of trust on the junior liens for common expenses. Inasmuch as the Condominium Property Act treats a condominium as real property in all respects, the general rule regarding real property liens thereby applies. See Condominium: Its Economic Functions, supra, at 557-558. A foreclosure sale passes title to the purchaser as of the date of the deed of trust and extinguishes the inferior encumbrances made by the grantor subsequent to that date. Sipes v. Kansas City Title Insurance Co., 372 S.W.2d 478, 479 (Mo.App.1963); S. S. Kresge Co. v. Shankman, 240 Mo.App. 639, 212 S.W.2d 794, 801 (1948); Roosevelt Hotel Corporation v. Williams, 227 Mo.App. 1063, 56 S.W.2d 801-802 (1933). Therefore, subordinate lienors must intervene at the time of the foreclosure sale to protect their lien interests.

We adjudge and declare that the prior recorded deeds of trust by defendant lending institutions were prior in right to the common expense liens held by plaintiffs. And where there was a failure to intervene, the deed of trust foreclosure sales extinguished the rights of the existing common expense liens.

The judgment is reversed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . §§ 448.010-448.220 RSMo 1969.

        . Estimated costs include costs of wages, materials, insurance, services and supplies required for the rendering of all services, together with a reserve for contingencies and replacement.

      . “Common elements” are defined in § 448.-010(1) as “all portions of the property except the units.”

      . However, the foreclosure sales were subsequent in time to the recording of the notice of assessments due and owing.


author: SIMEONE, Presiding Judge.

text:
    Howard H. HULSTINE, Appellant, v. STATE of Missouri, Respondent.
    No. 36697.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 16, 1975.

      Gregory D. O’Shea, St. Louis, for appellant.
    Timothy Patterson, Pros. Atty., Hillsboro, Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   SIMEONE, Presiding Judge.

This is an appeal by movant-appellant, Howard Harley Hulstine, from an order of the circuit court of Jefferson County entered on October 16,1974, denying, after an evidentiary hearing, appellant’s motion to vacate sentence filed pursuant to Rule 27.-26.

Appellant and another allegedly committed a robbery and kidnapping in the City of St. Louis on October 9, 1968. The victim and the loot were transported to Jefferson County. In November, 1968, movant was indicted in St. Louis for robbery and kidnapping. In October, 1969, movant filed in the circuit court of the City of St. Louis a motion for discharge on the grounds that the state had failed to accord him a speedy trial pursuant to §§ 545.890 and 545.920, RSMo 1969. Both charges, however, were nolle prosequied by the circuit court in St.. Louis on October 21, 1969. Movant was then transported to Jefferson County and charged with assault on December 10, 1969 (which was perpetrated on the victim in Jefferson County) and then charged with the robbery on February 3, 1970. He was tried to a jury on the assault charge in February, 1970, found guilty and after filing a motion for new trial withdrew it. After being found guilty of the assault charge on April 8, 1970, he pleaded guilty to the robbery and was sentenced on the assault. The trial court imposed sentence of fifteen years on each charge concurrently. It is the fifteen year sentence based on the plea of guilty to the robbery that movant seeks to set aside.

In 1970, he filed a motion pursuant to Rule 27.26 to vacate the conviction for assault. This was denied by the trial court and affirmed by the Supreme Court. Hulstine v. State, 472 S.W.2d 422 (Mo.1971). Then on March 27, 1973, he filed the present motion seeking to vacate the sentences for robbery and assault.

After a hearing in the circuit court in Jefferson County the trial court denied the movant’s motion which contended that the robbery and assault charge should be vacated.

Movant makes two points. He contends on this appeal that (1) the “nolle prosequi issued by the circuit attorney’s office of the City of St. Louis to the robbery charge, after more than three terms of court, amounted to a dismissal and subsequent discharge and any refiling by the prosecuting attorney of Jefferson County on the same charge was improper and constituted a defense to appellant” and (2) his “plea [to the robbery charge] . . . was involuntary” apparently because of the allegation that he was unaware of the “defense” that the charge of robbery should have been dismissed because he was denied a speedy trial and that it was nolle prose-quied in the circuit court of St. Louis.

In effect, appellant contends he is entitled to an acquittal in the robbery charge because he was not brought to trial before the end of the third term of court in violation of § 545.920, RSMo 1969, and if he had known of this defense, he would not have pleaded guilty to the robbery charge and would not have withdrawn his motion for new trial on the assault charge; hence, both should be set aside.

The state raises certain technical objections to the appeal, but we need not discuss them because, on the merits, the judgment of the trial court denying the motion to vacate is not clearly erroneous.

As to the assault, movant had earlier filed such a motion which was denied and affirmed by the Supreme Court. Hulstine v. State, supra. A movant is not entitled to file successive motions. Rule 27.26(d).

As to the robbery conviction, the motion was properly denied by the trial court. There is no question that the venue for robbery lay in Jefferson County. § 541.070. The fact that the state entered a nolle prosequi in St. Louis in 1969 did not, as movant contends, entitle him to discharge for the offense. §§ 545.890, 545.920.

First, there is no authority to support the appellant’s contention that the entry of a nolle prosequi was the equivalent to a discharge. The entry of a nolle prosequi is an action taken by the prosecuting authority, does not operate as an acquittal and does not bar a subsequent prosecution for the same offense. State v. Montgomery, 276 S.W.2d 166, 167 (Mo.1955); State v. Berry, 298 S.W.2d 429, 432 (Mo.1957); State v. Fields, 487 S.W.2d 560, 562 (Mo.1972).

Second, although appellant relies on State v. Wear, 145 Mo. 162, 46 S.W. 1099 (1898), this case was overruled in State v. Harper, 473 S.W.2d 419, 424 (Mo. banc 1971). In Harper, it was held that a defendant is not entitled to be released under the statutes simply because the number of terms has elapsed, but in “addition to that he must show that he has demanded a trial, and that such request was made without success for a reasonable length of time before his right to release has been asserted.” State v. Harper, supra, 473 S.W.2d at 424.

There is nothing in the record to indicate that movant complied with the requirements of Harper, supra. In fact, the last continuance prior to movant’s motion for discharge was requested by him. Hence, contrary to his position on this appeal, he would not have been entitled to this defense. State v. Horn, 498 S.W.2d 771, 774 (Mo.1973).

Third, in any event, the right to a speedy trial is not jurisdictional and is waived upon a plea of guilty. Rew v. State, 472 S.W.2d 611, 613 (Mo.1971). By pleading guilty to the robbery charge, movant waived any defect.

Fourth, appellant was not entitled to be discharged under § 545.920 because he was not brought to trial within three terms of court. Appellant was charged in St. Louis on November 19, 1968, with robbery and kidnapping. On October 21,1969, after a motion for discharge was filed on October 3,1969, the state entered a nolle prosequi to the charges of robbery and kidnapping. The City of St. Louis Circuit Court has five terms of court — February, April, June, December and September. § 478.263. The term in which the indictment is found is not counted. Appellant’s own exhibit shows that appellant consented to a continuance during the February 1969 term and requested a continuance during the June 1969 term. Hence, if we do not count the September 1968 term, the February 1969 or the June 1969 term, we have only the April and June 1969 terms, which are to be counted. Hence, appellant does not have benefit of § 545.920.

Any one of the above grounds is sufficient for the trial court to deny the motion. Taken together the court was correct in denying the motion.

Appellant’s second contention is that his plea was not voluntary. There is no merit to this point. First, ignorance of a technical defense is not sufficient to vitiate the voluntary character of a guilty plea. Mitchell v. State, 447 S.W.2d 281, 283-284 (Mo.1969). Second, having concluded that appellant had no defense based on a denial of a speedy trial at the time he pleaded guilty to the robbery charge, his plea could not have been rendered involuntary because of his lack of knowledge of a defense which he did not have. The test of whether a plea is voluntary is not whether a particular ritual is followed or whether each and every detail is explained but whether in fact the plea is voluntarily and intelligently made and whether the defendant has an understanding of the charge. Baker v. State, 524 S.W.2d 144, 147 (Mo.App.1975); Abrams v. State, 521 S.W.2d 177, 179 (Mo.App.1975); Mitchell v. State, supra, 447 S.W.2d at 284.

We have reviewed the entire transcript, the briefs and the authorities relied upon. We are convinced that the judgment of the trial court is not clearly erroneous.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Percy HOLLINS, Appellant.
    No, 36618.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Dec. 23, 1975.

      Brady, Brady, Devereaux, St. Louis, for appellant.
    Thomas W. Shannon, Pros. Atty., David E. Miller, Dennis Kay, Asst. Pros. Attys., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant, a clerk in an “Adult Book Store,” appeals a conviction and $300 fine in a court-tried case for violating § 563.280 (RSMo 1969, V.A.M.S.), which provides that “Every person who shall . . . offer for sale . . . any obscene picture ... or other publication of indecent, immoral or scandalous character shall, on conviction thereof, be fined . .

The State’s information charged that “Percy Leroy Hollins in the City of St. Louis, on the 8th day of February, 1974, did knowingly sell to Officer Zouglas (sic) a certain obscene publication bearing the following title: ‘ACTION Vol. 1 No. 5.” Defendant also contends that § 563.280 (RSMo 1969, V.A.M.S.) is unconstitutionally vague and overbroad and that “ACTION Vol. 1 No. 5” is not obscene and is protected expression under the First Amendment of the U. S. Constitution and Article One, Section Eight, of the Missouri Constitution.

On February 7, 1974 Officer Smith entered the bookstore and conversed with defendant about the contents of various publications which were on sale. He purchased a copy of “PAGEN,” returned the following day and asked defendant for a magazine with photographs of white and black female and male subjects involved in sexual intercourse and sodomy. Defendant directed Officer Smith to a display rack and stated, “Those magazines should have the pictures that you’re looking for.” Smith selected “ACTION Vol. 1 No. 5” and later testified the front cover depicted a male and female in “some type of sexual act” and the back cover depicted a male and female in “some type of sexual act with a ‘censor tape’ covering part of the picture.” Officer Smith bought the magazine from defendant for $7.80, left the store and with his partner, Officer Zouglas, looked through the magazine, returned and placed defendant under arrest.

Officer Smith was the State’s first witness and at the beginning of his testimony the State realized there had been an error made in the information. The State requested the information be amended to replace Zouglas’ name with Smith’s as the purchaser and to add Smith as a witness. The trial court held it was within its discretion to grant the amendment.

It was not error for the trial court to grant the State’s amendment. Rule 24.-02 allows amendment at any time before verdict if “no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” The purpose of the information is that it “fully inform the defendant of the offense of which he stands charged.” Rule 24.11. Minor defects which do not affect the notice to defendant of the crime charged can be amended during trial. Here, the information notified defendant he was being charged with knowingly selling obscenity and specifically identified “ACTION Vol. 1 No. 5” as the obscene publication, the essence of the obscenity prosecution involved. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Since defendant is not charged with selling obscenity to minors, to whom he sold the publication is not material. The information did correctly identify the offense with which defendant was charged and the particular publication was found to be obscene.

Missouri’s obscenity statute requires that defendant have knowledge of the obscene matter. Section 563.280 (RSMo 1969, V.A.M.S.). State v. Richardson, 506 S.W.2d 488 (Mo.App.1974). We find it was not error to admit “PAGEN” into evidence because it helped establish scienter, a necessary element of the State’s case. Defendant’s contention that “PAGEN” should not have been admitted because it was irrelevant, immaterial and possible evidence of another crime is without merit in a court-tried case. In establishing that Officer Smith had returned to the bookstore the day after he purchased “PAGEN” and told defendant it did not have the pictures he was looking for, defendant’s directing Smith to a different publication inferred defendant had knowledge of the publications. Defendant was not arrested for selling “PAGEN” nor did the State at any time during the trial submit that “PAGEN” was obscene. Admitting “PAGEN” was not evidence of an additional and separate offense and was relevant to prove scienter.

Defendant’s third contention that “ACTION Vol. 1 No. 5” should not be admitted because improperly seized by the arresting officers also fails. The publication was not seized; it was purchased by Officer Smith who owned it at the time he placed defendant under arrest. State v. Flynn, 519 S.W.2d 10 (Mo.1975) [2]; State v. Shouse, 519 S.W.2d 13 (Mo.1975).

Defendant contends Missouri’s obscenity statute is vague and overbroad. The Missouri Supreme Court has held to the contrary. State ex rel. Wampler v. Bird, 499 S.W.2d 780 (Mo.1973) held the statute was in line with the U. S. Supreme Court obscenity guidelines of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See also State v. Vollmar, 389 S.W.2d 20 (Mo.1965). The judicial construction of statutory language becomes part of the statute, making the statute sufficiently specific to avoid challenge for vagueness. State v. Crawford, 478 S.W.2d 314[2-7] (Mo.1972). In the light of its prior judicial constructions, Missouri’s obscenity statute is not vague or overbroad.

Defendant’s last contention on appeal is that “ACTION Vol. 1 No. 5” is not obscene “in the constitutional sense.” Rule 84.04(d) states: “Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this rule.” Defendant does not specify what he means by “constitutional sense” nor does he relate the actual contents of “ACTION Vol. 1 No. 5” to this “constitutional sense.” This court has no duty to search defendant’s arguments in order to comprehend an abstract statement. Cole v. Cole, 516 S.W.2d 518[5] (Mo.App.1974).

Judgment affirmed.

KELLY and STEWART, JJ., concur.