author: PARK, Judge.

text:
    Stanley Spriggs CULVER, Torch Corporation, Cumberland Welders Supply, Inc., and Hillary Culver, Appellants, v. Martha Virginia CULVER, Appellee.
    Court of Appeals of Kentucky.
    Sept. 22, 1978.

      Peter M. Davenport, Lexington, for appellants.
    John T. Mandt, Somerset, for appellee.
    Before HOGGE, PARK and WHITE, JJ.
   PARK, Judge.

This appeal arises out of a long and bitter action for the dissolution of the marriage between the appellant, Stanley Spriggs Cul-ver and the appellee, Martha Virginia Cul-ver. The action was commenced by Mrs. Culver on November 24, 1972. A decree dissolving the marriage was entered on December 12, 1975. However, a final decree adjudicating the property rights of the parties was not entered until October 25, 1977. On this appeal, Mr. Culver argues that the trial court’s findings are clearly erroneous with respect to the marital property of the parties.

The long delay in the adjudication of this case should not be blamed on the present circuit judge or his predecessor in office. The delay in this case is directly attributable to the animosity between the parties. The record also demonstrates that the primary fault must lie with Mr. Culver. During this litigation, he has been represented by three different attorneys and, at one time, attempted to represent himself. At the time of the initial hearings in the case, Mr. Culver failed to produce any evidence relating to the value of the business property which constituted the major portion of the marital estate. He refused to cooperate with the accountant appointed by the trial court. The record strongly suggests that Mr. Culver has -attempted to hide and disguise property which should be considered as a part of the marital estate. We must sympathize with the trial judge in his efforts to reach a fair and equitable division of the marital property in this case.

I

The problems faced by the trial court in dividing the marital property can best be understood by reference to a chronology of the proceedings:

a. Date of Final Separation. Following the commencement of the action in November 1972, the parties attempted a reconciliation. The parties separated for the last time on August 31, 1973.

b. Initial Proof. The case was tried on depositions. Mrs. Culver’s proof respecting the value of the marital property was offered through the testimony of David Harris, a qualified appraisal expert. Harris offered his opinion respecting the market value of the residence of the parties at 416 East Mt. Vernon Street in Somerset; a 43 acre farm near Mt. Victory; and a wholly owned corporation, Cumberland Welding Supply Co., Inc., which constituted the chief asset of the parties. Harris testified on May 7,1974, and his values were given as of January 1, 1974.

Mr. Culver offered no expert testimony at this stage of the proceedings. His testimony by deposition attempted to show that the 43 acre farm constituted nonmarital property; that Harris had not considered the income tax consequences of a sale of Cumberland Welders; and that Harris’s valuations were excessive.

c. Initial Submission. An order of submission was entered on July 12, 1974. The parties submitted briefs to the trial judge in November and December 1974.

d. Initial Rulings. On April 21, 1975, the original trial judge rendered an opinion concluding that the marital property should be equally divided between the parties. The trial judge did not attempt to make a specific finding with respect to the value of the various items of marital property. Noting that the difference of opinion between the parties respecting the value of the marital property was so great that neither party would be satisfied by any valuation and division made by the court, the trial judge suggested that the parties should agree upon a division of the marital property. If the parties were unable to agree on a division, the court ordered that all of the marital property should be sold at public auction by the master commissioner. The trial judge also found that the 43 acre farm constituted nonmarital property that had been purchased by Mr. Culver with an inheritance from his father.

When the parties failed to meet a November deadline imposed by the trial judge for an agreement dividing the marital property, the trial judge entered a decree dissolving the marriage of the parties on December 12, 1975. This decree directed the master commissioner to sell all of the marital property of the parties. The decree also awarded certain items of personalty to each party as nonmarital property. Mr. Culver was assigned the 43 acre farm and a houseboat as nonmarital property.

e. Subsequent Proceedings. On December 19, 1975, Mrs. Culver filed a timely motion to alter and amend the decree of dissolution. This motion specifically challenged the finding that the 43 acre farm constituted nonmarital property. At this point in time, the present circuit judge took office. At a series of hearings arising out of disputes concerning the prior decree, both parties expressed dissatisfaction with a judicial sale of all the marital property. Neither party pressed for a judicial sale.

Much of 1976 was consumed by the parties in disputes over various items of personal property. In July 1976, the trial court appointed a certified public accountant, James T. Carney, to make an independent audit of the records of Cumberland Welders. Mr. Carney reported to the court on several occasions that he was unable to obtain the necessary records or that he had discovered discrepancies and inaccuracies in the records. Being unable to resolve numerous factual issues regarding the division of the marital property on the basis of the existing record, the trial judge entered an order on January 22,1977, setting aside the judgment of December 11, 1975, except insofar as it decreed a dissolution of the marriage of the parties. A trial was conducted before the court on August 15, 1977. At that hearing, Mrs. Culver offered no evidence with respect to the value of any of the marital property except her opinion as to the household goods in the family residence. In effect, Mrs. Culver rested upon her original evidence offered in 1974.

At this last hearing, Mr. Culver testified regarding property acquired by him since the date of the final separation. In addition to real estate, Mr. Culver was the owner of all of the stock in Torch Corporation, a business similar to Cumberland Welders. For the first time, Mr. Culver offered an expert witness on the value of Cumberland Welders. Robert L. Jackson was the president of a similar company in Pineville, and had engaged in the purchase of other similar businesses. Mr. Jackson’s testimony was apparently based upon the current assets and liabilities of the corporation. Mr. Culver also introduced testimony of his accountant, Frank A. Wall, who testified to the net worth of Cumberland Welders as shown by the corporation’s tax returns for the years 1972-1976.

f. Final Decree. In the final judgment entered October 25, 1977, the trial judge awarded Mrs. Culver as her share of the marital property the sum of $110,300, payable in ten equal annual installments. The trial court made specific findings with respect to what assets constituted marital property. The trial judge also made a finding concerning the market value of each marital asset to the extent that there was any evidence of value in the record.

II

On his appeal, Mr. Culver questions the findings of the trial court that various assets were marital property. In each case, we must determine whether the findings of the trial judge are clearly erroneous within the meaning of CR 52.01.

a. Building and Lot Deeded to Hillary Culver. The trial judge included as marital property a building and lot deeded to the daughter of the parties, Hillary Cul-ver. A value of $3,000 was assigned to this lot. This property was used by Cumberland Welders in its business. The record establishes that the property was deeded to Hillary for tax purposes. The rent paid by the corporation was to be placed in a special fund to be used for Hillary’s college education. The gift of the property to Hillary was made prior to the final separation of the parties. There is nothing to suggest that the gift was made as a means of dissipating the marital property. See Barriger v. Barriger, Ky., 514 S.W.2d 114 (1974). Consequently, it was error for the trial judge to include the value of that lot as marital property.

b. 93 Kentucky Avenue, Somerset, Kentucky. The trial judge included as marital property the house and lot at 93 Kentucky Avenue in Somerset valued at $23,000. This property was purchased by Mr. Culver as a residence following the final separation but before entry of the final decree dissolving the marriage in December, 1975. The property was used as a residence for Mr. Culver and his daughter after Mrs. Culver had been granted sole possession of the family residence. KRS 403.190(3) provides that all property acquired by a spouse “after the marriage and before a decree of legal separation is presumed to be marital property.” The actual separation of the parties in July 1973 was not the equivalent of a “decree of legal separation.” Consequently, the statutory presumption of KRS 403.190(3) applies. Mr. Culver offered no evidence establishing the source of the funds used to purchase this property. He did not rebut the statutory presumption that the property was acquired by the use of marital property. The trial court did not err in holding this property to be marital property.

c. Lincoln County Farm and Dan-ville Property. The trial judge included as marital property a house and farm on the Stanford-Danville Pike in Lincoln County, Kentucky, valued at $35,000. Also included as marital property was real estate and improvements located on Highway 150 in Danville, Kentucky, valued at $18,500. These properties were acquired by Mr. Cul-ver after the entry of the decree dissolving the marriage on December 12,1975. Consequently, there is no statutory presumption that these properties constitute marital property. Mrs. Culver had the burden of proving that these properties had been purchased with assets constituting marital property.

There is no evidence in the record identifying the source of the funds used to purchase the Lincoln County farm or Dan-ville property. The record suggests the possibility that the Kentucky Avenue property has been sold and the proceeds invested in the Lincoln County farm. Assuming that this possibility is true, the fact remains that the value of the Kentucky Avenue property has already been used in calculating the marital property of the parties. Consequently, we conclude that the trial court erred in holding the Lincoln County farm and Danville property to be marital property in the absence of any evidence that these properties were purchased with marital assets not otherwise used in calculating the value of the marital property.

d. 43 Acre Farm and Houseboat. Mr. Culver asserts that the trial judge erred in including as marital property the houseboat and the 43 acre farm located near the Mt. Victory Road in Pulaski County. He asserts that both these assets were purchased with funds inherited by him from his father. With respect to the houseboat, the trial judge clearly erred in finding that it was marital property. Both Mr. and Mrs. Culver testified that the houseboat was purchased with funds inherited by Mr. Culver from his father. In the decree of December 12,1975, the court found that the houseboat constituted nonmarital property. In her motion to alter and amend this decree, Mrs. Culver did not challenge that finding.

The original decree also found the 43 acre farm to be nonmarital property. However, Mrs. Culver did seek to alter and amend that portion of the decree. In the initial proof, Mrs. Culver confessed complete ignorance as to the source of the funds used to purchase the 43 acre farm. Mr. Culver offered no documentary proof to support his simple statement that the farm had been purchased with funds inherited from his father. At the subsequent hearing in August 1977, Mr. Culver again failed to offer any documentary proof showing the source of the funds used to purchase the 43 acre farm. On the other hand, Mrs. Culver introduced evidence indicating that the inheritance was too small to have been the source for the purchase of the 43 acre farm after deducting the cost of the houseboat. Giving consideration to the presumption under KRS 403.190(3) that the farm was marital property, we conclude that the trial judge did not err in including the value of that farm as marital property.

e. Torch Corporation. The trial judge found that the Torch Corporation constituted marital property. However, no value was attributed to the stock of the Torch Corporation because there was no evidence of probative value on that issue. Consequently, it is difficult to see how this finding could have prejudiced Mr. Culver. However, because the case is being remanded for further proceedings, we will consider the issue.

Torch Corporation is wholly owned by Mr. Culver. It was formed at the time of the separation because of the problems Mr. Culver foresaw attributable to the pending divorce proceedings. Mr. Culver claims that the capital for the Torch Corporation came from the inheritance from his father. However, the proof in the record supports a finding that the inheritance was only $2,600, of which $1,500 was expended on the houseboat. Torch Corporation acquired assets similar to those normally used in the business of Cumberland Welders. Mr. Culver has refused to produce any of the records relating to Torch Corporation even though Torch Corporation transacts business with Cumberland Welders. The trial court did not err in holding that Torch Corporation constituted marital property.

Ill

Mr. Culver claims that the trial judge valued the marital estate without any deduction for debts. Specifically, he argues that the trial judge ignored liabilities of Cumberland Welders of approximately $82,-000 at the end of 1973. This argument is totally without merit.

The trial judge valued the stock of Cumberland Welders at $100,000. It is obvious that this figure constituted net value after the deduction of the liabilities of the corporation. If Mr. Culver’s argument were correct, the trial judge should have deducted liabilities in excess of $82,000 from the $100,000 value of the assets. This would have left a net value of less than $18,000, a figure which is preposterous in light of the testimony by all of the witnesses.

The absurdity of this argument can be readily seen by examining the testimony of Mr. Harris, the only valuation witness who testified in the original hearings. According to Harris, the net worth of the corporation (retained earnings plus capital) exceeded $131,000. This valuation was based upon his appraisal of the fair market value of the assets of the corporation decreased by the amount of the liabilities of the corporation. In the revised balance sheet prepared by Harris, no consideration was given to good will, an item which was included in another higher valuation of the corporation by Harris. In light of Harris’s appraisal of the corporation based upon the fair market value of assets decreased by liabilities of the corporation, the trial court’s finding that Cumberland Welders had a value of $100,000 is not clearly erroneous. In fact, the trial court’s valuation appears conservative.

There is nothing to suggest that the trial court included in its valuation of Cumberland Welders any amount for appreciation attributable to the personal efforts of Mr. Culver following the date of the decree dissolving the marriage. The record would support a finding that Cumberland Welders had a value of $100,000 prior to the decree dissolving the marriage, without regard to any subsequent appreciation.

IV

Mr. Culver argues that the trial court erred in considering the report of the certified public accountant, Mr. Carney. Neither party called Mr. Carney as a witness. However, his reports to the court were made a part of the record, and the reports are referred to in the opinion by the trial judge. Culver asserts that Carney’s reports were inadmissible because they constituted unsworn statements never subjected to cross-examination.

This argument is without merit. Carney was appointed by the court to assist the court in the difficult problem of disposing of the chief marital asset, Cumberland Welders. As an officer of the court, Carney was under a duty to report to the trial judge the difficulties encountered by him in auditing the records of Cumberland Welders. The trial judge was also entitled to consider the extent to which the work of Mr. Carney was being hindered by Mr. Cul-ver. Although the trial judge’s opinion refers to the reports by Mr. Carney, the opinion does not purport to rely upon his reports for purposes of valuation. Consequently, Culver could not have been prejudiced by the trial judge’s consideration of the reports.

Furthermore, the record establishes that Mr. Culver had ample opportunity to call Mr. Carney as a witness so that he might be examined regarding the reports. It was apparent that the trial judge would consider the report, but Mr. Culver never objected to the trial court’s consideration of the Carney reports. Mr. Culver cannot complain for the first time in this court that the Carney reports should not have been considered.

The trial court did not err in assessing Carney’s fee as a cost of the action. Such an allowance was within the sound discretion of the trial judge. KRS 403.220. We also find no error in the action of the trial court making Torch Corporation and Cumberland Welders parties to the proceedings. Mr. Culver held title to all of the stock in both corporations. They were, in effect, his alter egos. Under the circumstances, the trial judge did not err in placing a lien upon the assets of both corporations in order to secure the payment of the sum awarded to Mrs. Culver as a division of the marital property.

V

The judgment of the circuit court awarding Mrs. Culver $110,300 as a division of the marital property must be reversed because that award is based upon the improper inclusion of the following assets as marital property: (a) building and lot deeded to Hillary Culver, $3,000; (b) houseboat, $1,500; (c) Lincoln County farm, $35,000; (d) Danville property, $18,500. The circuit court should reconsider the division of marital property, eliminating from its consideration any property acquired by either spouse after the decree dissolving the marriage unless the proof establishes that such assets were acquired with marital property. With respect to assets acquired after the separation but prior to the decree dissolving the marriage, there is a presumption that the assets constitute marital property. In a division of such assets, the circuit court should consider that such post-separation acquisitions normally will not involve the “joint efforts” of the parties except to the extent that marital property acquired prior to the separation contributed to the post-separation acquisitions. On the other hand, if marital property has appreciated in value after the separation or decree dissolving the marriage because of general economic conditions rather than the efforts of only one of the parties, then such appreciation in value should be considered in the division of the marital property.

Because the proof offered by the parties was so meager or nonexistent in many areas (i. e. Torch Corporation), the circuit court, in its sole discretion may upon remand determine that, certain issues should be reopened for further proof.

The judgment of the circuit court is reversed with directions to redetermine the division of marital property.

All concur.


source: Caselaw Access Project

author: HOWERTON, Judge.

license: Public Domain

text:
    Pamela Robinson HIGGINS, Appellant, v. Helen S. SEARCY, Appellee.
    Court of Appeals of Kentucky.
    Sept. 29, 1978.
    Fred E. Fischer, Louisville, for appellant.
    C. A. Dudley Shanks, Richard G. Segal, Louisville, for appellee.
    Before HOWARD, HOWERTON and PARK, JJ.
   HOWERTON, Judge.

Pamela Higgins appeals from a summary judgment dismissing her claim for injuries sustained in an automobile accident with the appellee, Helen Searcy. The trial judge held that appellant had not met the threshold requirements of the no-fault insurance statute [KRS 304.39-060(2)(b)] in order to sue for injuries sustained in the accident. Appellant contends that her claim was not ripe for summary judgment, because genuine issues of material fact were unresolved.

The accident occurred on October 18, 1975. Appellant was treated by Dr. Roles during the period from October 29, 1975, through January 12, 1976. Suit was filed on October 14,1976. On September 6,1977, upon appellee’s motion for summary judgment, the trial court found that appellant had incurred $766.60 worth of medical expenses, had not been treated by Dr. Roles since January 12, 1976, but she complained of continuing back pain. The court ordered that the deposition of Dr. Roles be taken in order to determine whether appellant .had sustained a permanent injury. Dr. Roles’ deposition was taken on November 19,1977, and when asked whether appellant had sustained a permanent injury, he answered that he could not state with any reasonable certainty how long her pain would continue.

Any contention by appellant that an issue of fact existed as to the permanency of her. injury is without merit. In Duncan v. Beck, Ky.App., 553 S.W.2d 476 (1977), this court held that in a summary judgment proceeding, plaintiff must be able to present some evidence of a permanent injury. KRS 304.39-060(2)(b) requires that permanent injury be proven within a “reasonable medical probability.” The only medical testimony offered in the proceeding failed to provide any proof of a permanent injury.

On January 2, 1978, appellant filed an affidavit stating that she had been treated by Dr. L. L. Cull on December 17, 1977, for her continuing back pain, and her total medical expenses were presently $917.00. She also anticipated additional treatment.

On February 3, 1978, the trial court entered a final judgment granting appellee’s summary judgment against appellant.

Appellant contends that the trial court improperly used the summary judgment to penalize her for the slow prosecution of her case, citing Conley v. Hall, Ky., 395 S.W.2d 575 (1965). The court, in its opinion, reasoned that, “To permit the plaintiff, Pamela Robinson Higgins, to proceed further in an effort to incur more medical expenses in order to meet the $1,000.00 threshold, would violate the entire spirit of the No-Fault Statute.” It should be noted that the statute provides that medical expenses are for reasonably needed products, services, and accommodations. KRS 304.39-020(5)(a). The appellant had gone to Dr. Roles for treatment from October 29, 1975, to January 12,1976, and to Dr. Honaker until April 2, 1976. Appellant did not incur any additional medical expenses until December 17, 1977, twenty months later, and three months after appellee had moved for a summary judgment. Under these particular facts, we believe, the trial court was correct as a matter of law in finding that appellant had not met the $1,000.00 threshold. The facts make it clear that this case was not dismissed for any penalty.

We affirm the judgment of the trial court. CR 56.03.

All concur.


author: WEIER, Judge.

text:
    S. G. ADAMS PRINTING & STATIONERY COMPANY, a corporation, Appellant, v. CENTRAL HARDWARE COMPANY, a corporation, Respondent.
    No. 39037.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 22, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.

      Richard A. Stockenberg, St. Louis, for appellant.
    Keith E. Mattern, St. Louis, for respondent.
   WEIER, Judge.

This is an appeal from a suit brought by S. G. Adams Printing & Stationery Company (hereinafter S. G. Adams) against Central Hardware Company (hereinafter Central). The dispute arose over the refusal of Central to pay the price of office modules and their installation provided by S. G. Adams. S. G. Adams sued Central not only for the price but also demanded incidental storage and shipping costs. The case was tried without a jury and the trial court denied recovery to S. G. Adams. We affirm.

The trial court proceedings were marked by numerous conflicts in the testimony of agents for the principals who had drawn up and had acted upon the agreements between the parties. In 1971 Central asked for bids on erecting modular partition units (movable office structures with built-in desks and shelves) with which to furnish a portion of their new warehouse and sales facility. Tom Zensen acting as a purchasing agent for Central and Gene Adams as salesman for S. G. Adams were the principal negotiators.

Both parties agree that Gene Adams prepared two proposals and two line drawings indicating placement of the units on the warehouse floor plan; and furthermore, that Adams had given them to Zensen around August 17, 1971. Each proposal related to a line drawing, presenting two different configurations, although neither drawing took into account the position of the telephone or electrical outlets in the new building. On September 20, 1971, Adams went to Zensen’s office to pick up a purchase order for the number of partition units agreed upon and across the face of this order, dated the twentieth of September, 1971, Zensen wrote out: “If not installed by Nov. 8 this order ‘VOID.’ ” From this point on much of the testimony concerning succeeding events is in direct conflict.

Mr. Adams testified that when Mr. Zen-sen issued Central’s purchase order on September 20,1971, Zensen had the proposal of S. G. Adams for the sale and installation of nine buyers’ offices and four managers’ offices and the corresponding line drawing which did not comport with the electrical and telephone outlets in the new warehouse. Zensen testified that when he gave Adams the proposal on September 20, Adams inquired as to what sketch was being agreed to, whereupon Zensen directed Adams to discuss his detail with Fred Harre, an industrial engineer who had designed the warehouse for Central. Zensen testified he wanted to insure that the floor plan would allow for the desks to be placed directly over the telephone and electrical outlets. In contrast to this statement, Adams said that Zensen had specifically agreed to the line drawing (which did not detail the desks in relation to the outlets). Adams also denied that Zensen directed him to see Harre at this time. Within a few days Richard Clayton, S. G. Adams’ sales manager, went to Zensen to tell him the manufacturer of the partition units could not meet the November 8 deadline. Both parties agreed to extend the deadline for two weeks to November 22.

Some time in October of 1972, Harre met Adams in Zensen’s office and asked for a set of plans that would detail the desk layout on a floor plan which noted the placement of outlets. The next day Adams gave Harre a copy of the sketch submitted with the purchase order that had been agreed upon in September. Harre rejected this drawing as worthless because there was no tie-in with the floor plan. Adams was instructed by Harre to prepare a more detailed sketch. Adams later submitted another drawing to Harre that was again rejected as insufficient because it did not designate placement of the desks to a floor plan which showed the position of the outlets. Harre rejected a third sketch but later accepted a fourth which did supply the necessary detail. After the acceptance of this, the fourth sketch, Gene Adams, by his own admission, made an inventory and notified Zensen that S. G. Adams had all the parts necessary to complete the partition configuration in accordance with the final plan.

An additional purchase order, dated October 6, was agreed to, calling for the purchase and installation of two additional partition units. However, there was nothing on the order which limited time for completion of the installation.

Although delivery of some of the partition units to Central’s new warehouse began on November 16, the assembly of the units was not commenced until Friday, November 19. The four manager-unit partitions were installed but the desks, which used the partition walls for support, were never secured into the module frame. The eleven buyers’ units were never successfully completed, there being a lack of parts available to erect most of the partitions. Later in the afternoon on Friday, the installation crew left for the day, with none of the eleven buyers’ units or the manager units being totally assembled. Clayton called the distributor in Chicago, Illinois, to inquire about the availability of the pieces necessary for completion but at that time he was unable to reach the distributor.

Over the weekend of November 20 and 21 Cohen directed the employees of Central to dismantle the existing structures. Following this, desks from the old location were brought in and set up so that the office could be open for business as planned on Monday, November 22. Central stored the dismantled units in their warehouse and sent S. G. Adams a series of letters directing it to pick up the units. S. G. Adams eventually carted off the materials and filed suit to recover the price of the partitions, together with incidental fees and expenses consisting of moving and storage charges. The petition alleged that Central refused to allow S. G. Adams to complete their contractual obligation. In its answer to the petition Central alleged S. G. Adams was guilty of a material breach by failing to complete its obligation within the time specified for performance. No findings of fact or conclusions of law having been requested, the court entered a general judgment in favor of defendant.

Essentially, S. G. Adams centers its appeal around four contentions of error: (1) that the trial court’s factual determination was unsupported by substantial evidence and against the weight of the evidence; (2) that the trial court erroneously applied the law when it failed to find that Central had materially breached the contract in refusing to allow S. G. Adams the opportunity to perform its obligation; (3) that there was error in not awarding incidental damages; and (4) that there was error in not finding there were two contracts and that they were severable.

Of crucial importance here is the fact that these issues were all raised following a non-jury trial and therefore this court is limited in its review of these issues by Rule 73.01 which requires that:

“[T]he decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976).

Additionally, we are not presented here with findings of facts or conclusions of law. Neither party requested these be made by the trial court. And when an appellate court is confronted with a record in which no findings of fact or conclusions of law were filed and none were requested, all fact issues are to be deemed found in accordance with the results reached. The judgment is to be affirmed under any reasonable theory supported by the evidence. De Paul Hospital School of Nursing, Inc. v. Southwestern Bell Telephone Company, 539 S.W.2d 542, 545[1] (Mo.App.1976). The appellate court is also obliged to accept as true the evidence and permissible inferences which may be drawn, favorable to the prevailing party, and to disregard the contradictory testimony. Duley v. Leininger, 527 S.W.2d 456, 458[2] (Mo.App.1975).

The factual disputes which the trial court had to pass judgment on concerned, (a) whether Zensen had accepted the proposal, contingent upon receipt of a fully developed drawing which showed the partition units placed in relation to the electrical and telephone outlets; (b) whether S. G. Adams had a time deadline on the second purchase order and whether it had failed to meet this deadline; and (c) whether the partition units were completely erected and installed.

The importance of the first question, (a) supra, is that its resolution determines to what date for completion of performance S. G. Adams will be held. If there was a delay in the performance by S. G. Adams of the contract due to the acts of Central (major modification of configuration of partition units) then there might be a waiver of the contract completion deadline, Artcraft Cabinet, Inc. v. Watajo, Inc., 540 S.W.2d 918, 925[14] (Mo.App.1976). Since there are no findings of facts, we are unable to conclude exactly what the trial court found. However, there is substantial evidence to support either of two propositions.

One, the trial court could have found that Zensen did not agree to the preliminary sketch accompanying the proposal contingent upon Harre’s acceptance of a detailed drawing (which would show telephone outlets). When reviewing a decision where conflicting testimony has been heard at trial, an appellate court shall “give due regard to the opportunity of the trial judge to judge the credibility of the witnesses . [and] accord deference to the trial judge’s conclusions where there is conflicting testimony,” Duley v. Leininger, supra at 458[1].

The trial court might have correctly found, instead, that even though there was a modification of the contract, there was no reason to grant an extension of time. The modification entailed nothing more than a sketching of a more detailed plan, which was completed in early November of 1971, and after its approval by Central, Adams assured Harre that all necessary parts, even taking into account the new configuration, were in stock. Using either of these two theories, the trial court’s findings on this factual issue would be in accordance with the results reached.

The second factual issue which the trial court would have had to determine, (b) supra, was whether S. G. Adams had failed to meet the deadline of the second purchase order for the delivery and installation of two additional buyers’ units. The trial court again was confronted with the resolution of this issue by adopting either one of two legal theories, both of which were reasonably supported by the evidence.

On one theory the court would have been required to find that the second purchase order, dated October 6, was merely a modification of certain provisions of the first contract. The parties to an executory contract are free to modify or revise provisions as long as there is an additional exchange of mutual consideration. R-Way Furniture Company v. Powers Interiors, Inc., 456 S.W.2d 632, 637[4] (Mo.App.1970). Here, the quantity of buyers’ units to be purchased and installed, and the price of the total package were modified. The second purchase order specified that the two buyers’ units were “additional.” This could well mean it was a supplement to the first order; that there was no change in the time provision; and hence the contract was void if the installation was not completed by the extended completion date of November 22.

Or the trial court might have determined that the second purchase order was a separate contract. Generally, if no time for performance is noted on the contract, a reasonable time to perform is implied. Artcraft Cabinet, Inc. v. Watajo, Inc., supra at 925[13]. A “reasonable” time cannot necessarily be equated with an extension beyond the date by which the first contract was to be completed. Because of the urgency of defendant’s needs to have installation completed by that date, the trial court could have found that a “reasonable” time to install the two additional units ended on November 22. Again, using either approach, a determination by the trial court that S. G. Adams failed to meet the time provision in the second purchase order, would have been reasonably supported by the evidence.

The final fact question, (c) supra, relates to whether S. G. Adams completed the erection of the partition units. A party may collect the contract price when there has been “substantially complete” performance. State ex rel. Stites v. Goodman, 351 S.W.2d 763, 766[1] (Mo. banc 1961); Bullock Company, Inc. v. Allen, 493 S.W.2d 5, 7[4] (Mo.App.1973). More specifically, it has been said that “[t]he building was substantially complete when it had reached the stage in its construction when it could have been put to the use for which it was intended even though comparatively minor items remained to be furnished or performed .,” State ex rel. Stites v. Goodman, supra at 766[1].

In the instant case the trial court heard testimony that the modules were completed. Yet, the trial court was also presented with evidence that none of the units were completed and that the desks were not usable because they were not stable. S. G. Adams, in seeking to recover, must prove that it had performed in accordance with the terms of the contract. Miran Investment Company v. Medical West Building Corporation, 414 S.W.2d 297, 302[1] (Mo.1967); Gammon v. Armantrout, 439 S.W.2d 771, 773[4] (Mo.App.1969). Using the test presented in Duley v. Leininger, supra, (when confronted with conflicting testimony) we agree the trial court could have found there was not substantial completion of the contract by S. G. Adams in that the partition units could not have been used for their intended purpose.

The next question presented is whether the trial court erroneously applied the law because it failed to find that Central, by preventing S. G. Adams from completing the installation after the 21st of November, effected a material breach. The plaintiff correctly cites authority in support of the proposition that a party to a contract is to be allowed recovery if the other party forbids performance, Reid v. Kelly, 300 S.W.2d 542, 544[2] (Mo.App.1957). Yet, the facts to which the plaintiff contends the law has been erroneously applied could have reasonably been found against the appellant by the trial court.

We have detailed how the trial court might have found that S. G. Adams failed to substantially perform within the deadline for performance, i. e. that more than minor, cosmetic defects remained and the partition units were not in condition to be used in the manner in which they were intended. Central had informed S. G. Adams that completion by November 22 was imperative in order to insure the smooth movement of their buying department into the new building. It became evident that the units were not going to be ready for use on Monday morning, when the installation crew left the job Friday afternoon and S. G. Adams was unable to reach the manufacturer to secure the necessary parts. The trial court could have reasonably found S. G. Adams had materially breached the contract. It therefore follows the trial court could have found that S. G. Adams was not entitled to recover from Central. A party to a contract cannot claim its benefits where he is the first to violate it. Boten v. Brecklein, 452 S.W.2d 86, 92[2] (Mo.1970); see also, § 400.2-601(a) RSMo.1969.

S. G. Adams’ third major contention, that it is entitled to incidental damages for the shipping and storage of the partitions, also fails. Incidental damages may be allowed in a proper case. Weber Motor Car Co. v. Roberts, 203 Mo.App. 509, 219 S.W. 994, 997[3] (1920); § 400.2-710 RSMo.1969. But if Central had been released from its obligation, because of a material breach by the plaintiff, then no incidental damages arising from S. G. Adams’ storage of their own property can accrue. Boten v. Brecklein, supra.

Finally, appellant claims that the trial court erred in not granting at least a partial recovery on the contract because the agreement was severable. We need not address ourselves to the question of whether the contract was in fact severable because the trial court could have found that S. G. Adams had failed to fully install any of the partition units.

The judgment is affirmed.

GUNN, P. J., and KELLY, J., concur.


author: SMITH, Judge.

text:
    Amos INGRAM, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39119.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 5, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Robert C. Babione, James W. Whitney, Jr., James E. Sullivan, St. Louis, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Movant appeals from the order of the trial court dismissing, without evidentiary hearing, his motion pursuant to Rule 27.26. Movant pleaded guilty in February, 1975, to six counts of robbery first degree with a dangerous and deadly weapon, two counts of assault with intent to kill with malice, and one count of carrying a concealed weapon. The state dismissed two additional robbery counts. Movant was sentenced to 18 years on each of the robbery and assault counts and to five years on the weapons charge, all terms to run concurrently.

The court found that movant’s allegations of ineffective assistance of counsel and that the pleas were the product of coercion and duress were bare conclusions not supported by factual allegation and were refuted by the transcript of the guilty plea proceeding. Our review of the record convinces us that the findings of fact and conclusions of law of the trial court are not clearly erroneous. The movant’s allegations are bare legal conclusions and the motion sets forth no facts which if true would entitle movant to relief. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974); Haliburton v. State, 546 S.W.2d 771 (Mo.App.1977). Additionally, the conclusory allegations are fully refuted by the record of the guilty plea proceeding. We also determine that an extended opinion would have no precedential value and affirm the order of the trial court pursuant to Rule 84.16(b).

Order affirmed.

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


author: GUNN, Presiding Judge.

text:
    Raymond COX, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39310.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 5, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    David V. Uthoff, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Presiding Judge.

After an evidentiary hearing, movant’s Rule 27.26 motion alleging ineffective assistance of counsel was denied. His appeal importunes that the trial court erred in failing to find that he was deprived of a fair trial on a burglary charge by reason of his counsel’s failure to represent him properly. We find no error and affirm.

Movant was convicted of second degree burglary, and his conviction was upheld in State v. Cox, 527 S.W.2d 448 (Mo.App.1975). His 27.26 motion charges that his trial counsel only conferred with him on a single occasion for 15 minutes, 10 days before trial, and failed to interview three potential defense witnesses. The consequence of this — movant argues — was his denial of a fair trial.

In support of that portion of his motion regarding the limited consultation time with his counsel, movant presented the testimony of a City Jail chaplain who stated that movant had asked him to tell his appointed counsel (the public defender) to see movant. When, where and the number of times the chaplain may have talked to mov-ant’s counsel was indefinite and not indicated by the record:

“Q. When you were talking to Mr. Nold [movant’s counsel], did you ever ask him if he had gone over to see Raymond Cox [movant]?
A. [Chaplain] I probably did.
Q. Do you recall if he said he did see him?
A. To the best of my knowledge, when I asked him, he didn’t.”

From the foregoing, it could not be determined whether movant’s counsel did or did not see movant, for, according to the chaplain, counsel did not say he had seen mov-ant, neither did he say he had not seen him. The chaplain’s testimony is of no value to movant. But we do have movant’s admission that cn at least one occasion, 10 days before trial, he was interviewed by his counsel.

The trial court may reject testimony offered on behalf of the movant, although uncontradicted. Williams v. State, 566 S.W.2d 241, (Mo.App.1978); Bibee v. State, 542 S.W,2d 540 (Mo.App.1976). However, movant’s first argument dealing with insufficient counseling time must be rejected for a more compelling reason. Movant did not assert that he was prejudiced as a result of his lawyer’s scanty contact with him. Nor did he adduce any evidence of prejudice at the hearing on his motion. Consequently, even if we accept movant’s assertion as true, it does not establish that he was denied a fair trial for ineffective assistance of counsel. Babcock v. State, 485 S.W.2d 85 (Mo.1972); Mason v. State, 468 S.W.2d 617 (Mo.1971). Movant has failed to establish prejudice, and his motion thereby fails. Walker v. State, 567 S.W.2d 398 (Mo.App.1978); Aikens v. State, 549 S.W.2d 117 (Mo.App.1977).

In the case of Rodgers v. State, 567 S.W.2d 634, at 637 (Mo.banc, 1978), the question concerning the amount of time a lawyer spent with his client was considered in a different context. Although not making a final declaration on the merits, the Supreme Court found that the defendant had been deprived of effective assistance of counsel when the consultation first and briefly occurred the day of trial. The court in Rodgers further found that the fact that a defendant is effectively represented at trial does not dispose of the entire issue, for “defendant may have had a fair trial once the case reached the trial stage before a jury, yet not have received effective assistance of counsel in responding to the charge against him.”

Rodgers v. State, supra, differs from this case in two important aspects: (1) here, counsel met with movant well in advance of trial, rather than on the day of trial, and (2) an evidentiary hearing was granted to mov-ant in which he failed to prove that he was prejudiced by his counsel’s alleged lack of attention. Thus, Rodgers does not compel us to reach a different result.

Movant’s second contention — that his counsel inadequately investigated his defense claims and hence denied him effective assistance — also lacks merit. Movant claims that he gave his counsel the names of three persons who would testify that he was acquainted with the victim of the burglary, and that one of his friends was also a friend of the victim; that in fact he was with the victim and the mutual friend, a Mr. Lewis, at a backyard barbecue several days prior to the burglary. He claims that Mr. Lewis would have testified that he was staying with the victim and that movant was in the victim’s home to meet him. He finally claims that these witnesses were not found and did not testify for him at his trial due to counsel’s inadequate investigation.

To support these allegations movant called four witnesses who, in testimony varying in degrees of confusion, inconsistency and contradiction, attempted to support the assertion that movant, the victim and Mr. Lewis had all been together prior to the burglary. Two of these witnesses were fellow inmates of movant’s, one was an inmate of City Jail and one was an old friend. The trial court found that this evidence was not credible, which was its prerogative. Williams v. State, supra; Stevens v. State, 560 S.W.2d 599 (Mo.App.1978). Movant’s other evidence was a police report of the arrest of four suspects, including the victim and Mr. Lewis, concerning a crime which occurred a year after the burglary. This proved nothing. At most it would show that the victim knew Mr. Lewis a year after the burglary.

There is a presumption that counsel is competent, and movant under Rule 27.26(f) has the burden to prove that he is not. Walker v. State, supra; Williams v. State, supra. To meet his burden of proof on the issue of ineffective assistance of counsel due to inadequate investigation, entitling him to relief under Rule 27.26, the movant must show both that counsel failed to perform some duty and that this failure resulted in actual prejudice to his defense. Walker v. State, supra; Haynes v. State, 534 S.W.2d 552 (Mo.App.1976). Movant failed to meet his burden. Even if mov-ant’s witnesses were to be believed, all they prove is that movant, the victim, and Mr. Lewis were acquainted prior to the burglary which is meaningless to the issues of this appeal. McQueen v. Swensen, 498 F.2d 207 (8th Cir. 1974), relied on by movant, is not in point under the circumstances here.

After a full review of the record in this case, we cannot find that the trial court’s findings of fact or conclusions of law resulting in the denial of the motion were clearly erroneous. Knight v. State, 491 S.W.2d 282 (Mo.1973); Haynes v. State, supra.

Affirmed.

KELLY and REINHARD, JJ., concur.

      . Movant’s trial counsel had moved his residence from the State sometime subsequent to the trial and was not available at the evidentia-ry hearing.


text:
    Jesse McDONALD, Appellant, v. STATE of Missouri, Respondent.
    No. 39832.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 12, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.

      Neal P. Murphy, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Presiding Judge.

Jesse McDonald was convicted of robbery first degree by means of a dangerous and deadly weapon and was sentenced to 20 years imprisonment. Both conviction and sentence were affirmed on appeal in State v. McDonald, 527 S.W.2d 46 (Mo.App.1974). Movant now appeals from a final order denying his motion to vacate judgment and sentence pursuant to Rule 27.26. The single contention before us is whether movant was denied effective assistance of counsel by his attorney’s failure to request a psychiatric examination to determine movant’s competency to stand trial. Review of the denial of a 27.26 motion is limited to an assessment of whether the findings, conclusions and judgments of the trial court are clearly erroneous. Garrett v. State, 554 S.W.2d 462 (Mo.App.1977). Perceiving no error in the trial court’s disposition of movant’s motion, we affirm.

The facts established at the 27.26 hearing relevant to this determination are as follows: movant was first admitted into Malcolm Bliss Mental Health Center on April 25, 1973 and was discharged on May 24,. 1973, with a diagnosis of “undiagnosed functional psychosis.” Two weeks later, movant was readmitted to Malcolm Bliss and stayed there until July 24, 1973. The discharge diagnosis was recorded as “paranoid schizophrenia probable.” He was admitted for a third time on July 31,1973 and discharged on September 24, 1974, with a diagnosis of “other paranoid state.” Approximately three months later, movant was arrested and convicted for the offense giving rise to this 27.26 appeal. By his testimony, movant entered the hospital each time suffering from hallucinations and paranoia. He was treated with group therapy, thorazine and prolixin and was still ingesting the drugs at the time of his arrest.

Movant’s trial attorney testified that movant had informed him of his psychiatric history during the initial interview. The attorney could not recall whether he discussed the possibility of a psychiatric examination with movant or his family. He was unequivocal, however, about his assessment of his client’s competency:

Q. Is there anything in your preparing of this case which lead [sic] you to believe that Mr. McDonald was not competent to assist you in the trial of this case?
A. No, we talked about it. He maintained his innocence and he gave me names of alibi witnesses and there is nothing I recall that indicated he was not competent to cooperate and assist in his own defense.
Q. You don’t remember any abnormal behavior during the course of the trial on his part?
A. No.

When claiming prejudice as the result of ineffective counsel, movant must demonstrate by a preponderance of the evidence that the efforts and representation of the attorney were so inadequate as to deprive him of a fair trial. Stevens v. State, 560 S.W.2d 599 (Mo.App.1978); Nelson v. State, 537 S.W.2d 689 (Mo.App.1976). An accused who lacks the mental capacity to understand the proceedings against him or to act rationally in his own defense may not be submitted to criminal prosecution. Brown v. State, 485 S.W.2d 424 (Mo.1972); McCarthy v. State, 502 S.W.2d 397 (Mo.App.1973). Yet, suspicion or actual presence of some degree of mental illness or need for psychiatric treatment does not equate with incompetency to stand trial. Garrett v. State, supra. Neither does the fact of commitment in a mental hospital, Chapman v. State, 506 S.W.2d 393 (Mo.1974), considerable emotional disturbance, State v. Stein, 504 S.W.2d 1 (Mo.1974), nor alcoholism and drug addiction, McCarthy v. State, supra, make a defendant incompetent as a matter of law. Despite diagnoses of psychosis, movant appeared aware of the charges against him and capable of aiding in his own defense. Prior to trial movant maintained his innocence and sought vindication through the judicial process. He rejected the possibility of plea bargaining and even provided the names of two alibi witnesses. The evidence presented clearly supports the trial court’s finding that movant’s counsel at trial gave adequate, effective, and competent representation and reasonably concluded that movant was competent to stand trial regardless of whether he requested a psychiatric examination for him under the circumstances. Garrett v. State, supra.

Affirmed.

KELLY and REINHARD, JJ., concur.


text:
    In re the MARRIAGE OF Mary Ann CODY, Petitioner-Respondent, and James Joseph Cody, Respondent-Appellant.
    No. 39196.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 12, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.

      Hanks, Taylor & Suddarth, W. Morris Taylor, Jerry L. Suddarth, Clayton, for respondent-appellant.
    Shaw, Howlett & Schwartz, Robert W. Meyers, Clayton, for petitioner-respondent.
   GUNN, Presiding Judge.

The issue in this dissolution appeal, as alleged by appellant-husband, is whether the trial court abused its discretion in directing him to pay the respondent-wife $260 per month maintenance. The appellant alleges that there is no evidence to show that he had any income from which to make payments; that, further, the respondent had been able to provide for herself for the approximately three years separation period. We affirm.

True, there is little evidence to show the appellant’s income. Except for the respondent’s reference to income derived by appellant from a bookie operation and some sort of tavern operations, including the purchase and sale of a tavern — specifics as to appellant’s income were nubilous. Apparently, appellant hangs around saloons, plays a bit of pool, shares living arrangements with various men and women and borrows money from his mother and girlfriend. While he professes having a bad back, he readily concedes that the ailment is not disabling.

The respondent suffers from a debilitating pulmonary and heart infirmity which leaves her totally disabled. Her sole source of income is from an approximate $290 a month social security payment and what her mother can give her. She presented evidence of substantial medical and cost of living expenses.

From the evidence, it appears that the appellant is employable and that his efforts to obtain employment have been deliberately minimal. We have held that a spouse may not voluntarily decline to work and plead lack of income as a basis for shirking his responsibilities to his family. Boyer v. Boyer, 567 S.W.2d 749 (Mo.App.1978); Butler v. Butler, 562 S.W.2d 685 (Mo.App.1978). The evidence supports a finding that the respondent is physically unable to provide for her needs; that the responsibility for her maintenance falls upon the appellant — not respondent’s mother as appellant seems to contend. Suesserman v. Suesserman, 539 S.W.2d 741 (Mo.App.1976). The award of maintenance is supported by the evidence and is not against the weight of evidence or legal principle and must be affirmed. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

After reading the transcript, briefs and authorities cited and considering the relevant factors of § 452.330, RSMo Supp.1975, we find no abuse of the trial court’s discretion and conclude that an extended opinion would be of no precedential value. Rule 84.16(b).

Judgment affirmed.

KELLY and REINHARD, JJ„ concur.


author: PER CURIAM:

text:
    Toy CRIBBS, Maxine Cribbs and James B. Fleischaker, Trustee, Plaintiffs-Respondents, v. KEYSTONE AMERICAN SERVICE CORPORATION, Defendant-Appellant.
    No. 10325.
    Missouri Court of Appeals, Springfield District.
    Oct. 12, 1978.
    James B. Fleischaker, Roberts & Fleisc-haker, Joplin, for plaintiffs-respondents.
    Julian J. Ossman, Myers, Perry, Ossman & Copeland, Webb City, for defendant-appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   PER CURIAM:

Plaintiffs’ five-count petition, inter alia, prayed “for the appointment of a receiver to take charge of the property described in the petition pending final disposition of this case and the sale of the real estate under the deed of trust described in the petition.” The Circuit Court of Jasper County entered its order appointing a receiver and defendant filed a motion to quash the order. When the court refused to revoke, modify or change its order appointing the receiver, defendant appealed. § 512.020.

The provisions of Rule 84.04, which enunciate the required form of an appellant’s brief, are to be stringently enforced and applied [Glastris v. Union Elec. Co., 542 S.W.2d 65, 69[5] (Mo.App.1976); Matter of Estate of Langford, 529 S.W.2d 31, 32[3] (Mo.App.1975); Associates Discount Corp. of Iowa v. Fitzwater, 518 S.W.2d 474, 477[2] (Mo.App.1974)] and are applicable to the appellate review of court-tried cases. Cole v. Cole, 516 S.W.2d 518, 520[4] (Mo.App.1974); Boyd v. Boyd, 459 S.W.2d 8, 12[9] (Mo.App.1970).

One fatal deficiency in defendant’s brief is that it does not contain a single page reference to the transcript on appeal. This is a blatant violation of Rule 84.04(h) which requires that “[a]ll statements of fact and argument shall have specific page references to the transcript on appeal . . . .” This violation of the rule would alone justify dismissal of the appeal. Stephan v. World Wide Sports, Inc., 539 S.W.2d 591, 592 (Mo.App.1976); Ward v. Johnson, 480 S.W.2d 104, 106[6], 107[8] (Mo.App.1972).

Omitting the citations, the “Points Relied On” in defendant’s brief read: “The trial court did err by overruling appellant’s motion to quash the order appointing the receiver for the following reasons: I The allegations of respondent’s petition were insufficient to justify the appointment of a receiver. II The appointment of a receiver without notice and an opportunity to be heard was a denial of due process as guaranteed by the constitutions of the United States and the State of Missouri.”

Rule 84.04(d) mandates: “The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous . .” The claim that the petition’s averments were insufficient to justify the appointment of a receiver obviously does not comply with the rule because it does not state “wherein and why” the allegations in the pleading were deficient. S_ v. W_, 514 S.W.2d 848, 855-856[16] (Mo.App.1974). Likewise, the asseveration that defendant was denied due process when a receiver was appointed without notice of a hearing preserves nothing for review because it does not undertake to say how or in what manner the alleged action denied defendant its constitutional right. Hilke v. Firemen’s Retirement System of St. Louis, 441 S.W.2d 730, 733[3] (Mo.App.1969); Ragan v. Ragan, 315 S.W.2d 142, 148[6] (Mo.App.1958), and eases cited in note 6. Appellate review is not required of points relied on which are mere abstract statements of law. Middleton v. Meramec Mining Co., 545 S.W.2d 679[2] (Mo.App.1976).

Appeal dismissed.

Addendum

Nothing was pleaded or proved in the instant case concerning bankruptcy proceedings involving defendant in the federal court. It is said that such proceedings were commenced after the appeal in this cause was taken to this court. Under such circumstance, we will not take judicial notice of the bankruptcy action, if so, in the federal court. Therefore, plaintiffs’ motion to dismiss the appeal herein because defendant is involved in federal bankruptcy proceedings is overruled. 29 Am.Jur.2d, Evidence, § 58, pp. 90-92.

All concur.

      . References to statutes and rules are to RSMo 1969, V.A.M.S., and to Supreme Court Rules, V.A.M.R.


author: FONES, Justice.

text:
    Dewey Stanley HOPKINS, Petitioner, v. Mary Holloway HOPKINS, Respondent.
    Supreme Court of Tennessee.
    Oct. 30, 1978.
    Jack F. Marlow, Memphis, for petitioner.
    Warren Miller, Memphis, for respondent.
   OPINION

FONES, Justice.

The issue in this divorce case is the availability of relief under T.R.C.P. 60.02, to correct a final decree where wife claims she was awarded husband’s interest in real property and a 1972 Ford station wagon at the hearing, but the final decree failed to mention said award. The trial judge denied relief, the Court of Appeals reversed and remanded for a further hearing, one member dissenting.

The complaint filed on September 18, 1975, sought an absolute divorce, alimony, attorney’s fees and court costs. Defendant was personally served with process and upon failure to answer, a default judgment was entered against him.

The case was heard on March 9,1976, and a final decree of divorce entered on March 25, 1976. That decree granted plaintiff an absolute divorce and required defendant to pay $350.00 attorney’s fees, but contained no reference to alimony or divestiture and vestiture of property, real or personal.

On May 13, 1976, more than thirty (30) days after entry of final decree, plaintiff filed a petition to amend final decree, alleging that at the hearing on March 9, the trial judge had awarded to her, as alimony, defendant’s interest in the real property at 642 South Graham Street, Memphis, Tennessee, and a 1972 Ford station wagon, and that the court’s “blotter” contained notations to that effect. The only additional facts alleged are as follows:

“That on March 25, 1976, a Final Decree of Divorce was entered in this cause; that same grants the divorce and awards an attorney fee of $350.00 against the Defendant, although same was not mentioned at the hearing; that the Decree failed to provide for the divesting and vesting of real and personal property

The relief sought was amendment of the final decree of March 25, 1976, to divest husband’s interest in the real property and automobile or in the alternative grant a new trial.

Husband filed a response to wife’s petition contesting her right to the relief sought and affirmatively alleging that an oral agreement existed between them throughout the pendency of the divorce, that the equity in the real property would be divided equally.

Although the petition makes no reference to T.R.C.P. 60, it is apparent from the meager facts alleged that relief could only be granted under the terms of T.R.C.P. 60.-02(1) predicated upon “mistake, inadvertence, surprise or excusable neglect.”

Where the extraordinary relief provided in T.R.C.P. 60.02(1) is sought, the burden is upon movant to set forth in a motion or petition, or in affidavits in support thereof, facts explaining why movant was justified in failing to avoid mistake, inadvertence, surprise or neglect. See, e. g. Hoffman v. Celebrezze, 405 F.2d 833 (8th Cir. 1969); Hulson v. Atchison T. & S. F. Ry., 289 F.2d 726 (7th Cir. 1961); Smith v. Kincaid, 249 F.2d 243 (6th Cir. 1957); Federal Deposit Ins. Corp. v. Alker, 234 F.2d 113 (3rd Cir. 1956); and Petition of Pui Lan Yee, 20 F.R.D. 399 (N.D.Cal.1957).

The rule expressly provides that the procedure for obtaining relief from a judgment shall be “by motion as prescribed in these rules or by an independent action.” Here, wife filed a motion in the divorce action wherein final decree was entered on March 25, 1976. T.R.C.P. 7.02 requires that motions shall be made in writing and “shall state with particularity the grounds therefor.” T.R.C.P. 9.02 dealing with pleading special matters requires that in all aver-ments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. We regard these rules requiring particularity of pleading to be mandatory as a prerequisite to invoking the jurisdiction of the trial judge to exercise his discretion in granting or refusing the extraordinary relief of disturbing the finality of a judgment on any of the grounds authorized in T.R.C.P. 60.02(1).

The technical record in this case contains the final decree entered on March 25, 1976. The signature of the attorney that represented wife at that time appears on the face of the decree, indicating that it was submitted and approved for entry by him. All that was said in the petition for relief from that decree filed by a subsequently employed attorney, is that the decree “failed to provide for the divesting and vesting of real and personal property.” The circumstances obviously required an explanation and justification for failing to include in a final decree presented sixteen (16) days after the hearing, vestiture of property alleged to have been awarded her, and for failing to discover that omission within the thirty (30) days following entry of the decree, during which time the trial judge retained control thereof.

In the pleading filed and at the hearing had thereon, no offer of proof was made to show facts and circumstances that justify invocation of the extraordinary relief of setting aside a final judgment. See Hoffman v. Celebrezze, supra, and Smith v. Kincaid, supra.

Having found that plaintiff did not plead and prove a state of facts upon which the trial judge could have exercised the discretionary power vested in him to grant relief from a final judgment, we deem it unnecessary to discuss the grounds upon which he denied the application or the grounds upon which the Court of Appeals reversed. Suffice it to say that this Court will affirm a decree of the trial court correct in result, though rendered upon different, incomplete or erroneous grounds. Shutt v. Blount, 194 Tenn. 1, 8, 249 S.W.2d 904 (1952); Hobson v. Hobson, 184 Tenn. 484, 496, 201 S.W.2d 659 (1947); Sheafer v. Mitchell, 109 Tenn. 181, 71 S.W. 86 (1902); and Chambers v. Chambers, 92 Tenn. 707, 23 S.W. 67 (1893).

The judgment of the Court of Appeals is reversed and that of the trial court affirmed. Costs are adjudged against Mary Holloway Hopkins.

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


author: HENRY, Chief Justice.

text:
    C. A. HARLAN, d/b/a Harlan Chevron Service, Appellant, v. Roy McCLELLAN, Appellee.
    Supreme Court of Tennessee.
    Oct. 30, 1978.

      S. Morris Hadden, Kingsport, for appellant.
    J. Kenneth Wright, William H. Cate, Wright & Cate, Kingsport, for appellee.
   OPINION

HENRY, Chief Justice.

In this Workmen’s Compensation case, the employer has appealed the Chancellor’s decision awarding appellee compensation for 25% permanent disability to the body as a whole, plus medical expenses and temporary total disability benefits. We affirm the Chancellor’s award.

I.

Appellee Roy McClellan, an employee at appellant’s service station, injured his back on October 29, 1976 when he slipped on some grease and landed on the concrete floor and a grease rack. Although he was able to work for several days following the accident, he had to cease working for eleven months because of the injury to his back. Dr. Pannell, the treating chiropractor, testified that McClellan had a 30-40% disability to the spine and to the body as a whole as a direct result of the accident. He described the injury as “a disc lesion or an injury at L-5 with some nerve root pressure. . I think it is a functional disability due to involvement of the disc and a subluxation, pinching nerve.” Dr. Panned also stated that McClellan should avoid prolonged standing or lifting, as wed as bending, stooping or twisting.

McClellan has suffered several back injuries during the past thirteen years. The most recent previous injury occurred in December 1974. The disposition of his workmen’s compensation claim arising out of that injury is not clear from the record, but it appears that he settled the claim at a rate approximating a permanent disability of 7-8%. Dr. Panned had also treated McClellan for the 1974 injury. In a letter to McClellan’s counsel at that time, he diagnosed the injury as follows:

Symptoms: Muscle spasm, pain to palpo-tation (sic) at L-5, S-l. Pain and numbness in the right leg.
X-Ray: Disc Lesion (injury) at L-5, S-l. Subluxation Type I of L-5.
The patient ... is, in my opinion, unable to left (sic) or tolerate long periods of standing. He has, as a direct result of the injury December 27, 1974, between 60% to 70% permanent disability to the spine.

Prior to this trial, Dr. Panned did not recall having treated McClellan for the 1974 injury. When it was called to his attention on cross-examination, he stated that although his skid and the standards for determining the degree and permanence of disability were the same in 1974 and 1976, people can recover from seemingly permanent injuries and frequently must work in spite of their injuries. It was his opinion that McClellan had recovered from the 1974 injury since he had been able to return to work.

Appellant claims that there is no material evidence to support the Chancellor’s award and that Dr. Panned’s testimony concerning McClellan’s present disability cannot be relied upon to support the award because of his previous diagnosis. In addition, appellant claims that the finding of a permanent disability is erroneous because McClellan has been able to resume full-time employment.

ii.

Our cases consistently have held that “when an employer employs a workman he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a perfectly normal, healthy person.” Modern Upholstered Chair Co. v. Russell, 518 S.W.2d 519, 522 (1974), Globe Co. Inc. v. Hughes, 223 Tenn. 37, 42, 442 S.W.2d 253, 255 (1969).

Tennessee first recognized this policy in Knoxville Knitting Mills Co. v. Galyon, 148 Tenn. 228, 255 S.W. 41 (1923), in which the Court held that the employee could recover for the loss of his hand although he previously had received compensation for the loss of three fingers. In Williams v. S. & W. Construction Co., 167 Tenn. 84, 66 S.W.2d 992 (1934), the trial court dismissed a claim for the loss of an eye because the employee previously had received full compensation from another employer for the permanent total loss of the same eye. The Supreme Court reversed, ruling that the employee was entitled to prove that he had some useful vision in spite of the award, and that his vision had been impaired by the current injury. In addition, the Court noted that the contractual relationship between an employer and an employee under the compensation law prevented an employer from relying on benefits received from a previous employer for a different accident. This reasoning was applied more recently in McKamey v. Pee Wee Mining Co., Inc., 498 S.W.2d 94, 96-97 (1973). In that case, the Court upheld an award of 100% permanent disability to the body as a whole in spite of a previous award of 60% permanent disability from another employer.

In Laughlin Clinic, Inc. v. Henley, 208 Tenn. 252, 345 S.W.2d 675 (1961), the employee had a previous longstanding back condition and was wearing a brace at the time of her accident. Although she was able to work for two months following the accident, she had to cease working as the pain in her back increased. Since she had been able to perform her work satisfactorily prior to the accident, the Court rejected a claim that the award for 75% permanent disability should be reduced because of the previous back injury.

More recently, in Modern Upholstered Chair Co. v. Russell, supra, plaintiff had suffered a back injury and had received benefits for a 15% permanent disability in 1968. In 1970, she began working for the defendant and satisfactorily performed her work for three years. She was then switched to a more arduous job that resulted in a back injury. The Court held that the record supported an award for 30% disability upon the physician’s testimony that she had a “25 to 30 percent permanent partial disability to the body as a whole . . another 10 to 15 percent on top of the previous 15 percent” disability from the prior injury. Id. at 523. Similarly, in Employers-Commercial Union Companies v. Taylor, 531 S.W.2d 104 (1975) the employee suffered a back injury requiring disc surgery and was awarded compensation for a 50% permanent disability. Four years later, while working for the same employer, his back was injured again and the injured disc was removed. This Court, speaking through Justice Cooper, upheld the trial court’s award for a 60% permanent disability.

The policy allowing compensation in spite of a previous determination of permanent disability to the same member encourages rehabilitation and re-employment. As the Court pointed out in Industrial Carving Co. Inc. v. Hurst, 223 Tenn. 469, 447 S.W.2d 871 (1969):

All things considered, the employee did have an earning power at the time of his subsequent injury, irrespective of the previous adjudication of total permanent disability. Industry saw fit to utilize this recouped earning capacity; therefore, it should compensate him for the loss he has suffered. 223 Tenn. at 475-76, 447 S.W.2d at 873

The Court went on to note that an employee who rehabilitates himself and returns to work rather than relying on public relief should not be penalized for his rehabilitation or discouraged from re-entry into the work force by the denial of benefits for subsequent injuries.

These decisions make it clear that McClellan’s previous injury does not preclude an award for disability resulting from his current injury.

III.

As frequently noted, this Court’s review of factual issues is limited to whether there is material evidence to support the decision below. Thus, even if the evidence preponderates against the decision below, it will be upheld if there is any material evidence to support it. Davis v. Gulf Ins. Group, 546 S.W.2d 583, 585 (1977) and cases cited therein.

Appellant claims that there is no evidence to support the Chancellor’s determination of a 25% permanent disability and that the finding of a disability is erroneous because McClellan has been able to resume full time employment.

Dr. Pannell’s testimony concerning McClellan’s current disability provides material evidence in support of the Chancellor’s award. Although his previous diagnosis assigned a higher percentage of disability for identical injuries, he testified that McClellan had recovered from the 1974 injury since he had been able to resume working without pain.

In Williams v. S. & W. Construction Co., 167 Tenn. 84, 66 S.W.2d 992 (1934), the Court stated:

It is generally recognized that the question of whether or not a present disability is or will prove permanent is frequently one largely determined by the courts, or by the interested parties for themselves, on the basis of appearances at the time and opinion estimates of the apparent probabilities. Some disabilities are taken to be temporary and others to be permanent, so agreed or so determined, when the facts are subsequently demonstrated to be otherwise. 167 Tenn. at 87, 66 S.W.2d at 993

McClellan also testified that he had recovered from his previous injury and had experienced no trouble with his back while working at the service station. He stated, however, that he no longer is able to do hard physical labor. When asked about his present work as a truck driver, he testified:

A. Well, it’s painful, because you are jarred around a lot in a truck. And my back ... it just tears me up, it hurts real bad. I get my wife to massage my back and put a heat pad on it every night.
Q. What about your right leg?
A. Well, it bothers me more now than it ever did, really.

This record offers material evidence in support of the Chancellor’s award. Thus, McClellan’s subsequent employment as a truck driver is irrelevant. Although employment after an injury is a factor that may be considered in determining permanent total disability, a 25% permanent disability obviously does not preclude all types of work. To reduce or disallow partial benefits on the basis of a subsequent resumption of work would penalize the employee and discourage re-employment.

The judgment is affirmed.

FONES, COOPER, BROCK and HARBI-SON, JJ., concur.


text:
    Robert E. GOINES, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Oct. 30, 1978.

      Victor J. Vaughn, Public Defender, Johnson City, for petitioner.
    Brooks McLemore, Jr., Atty. Gen., Robert L. DeLaney, Asst. Atty. Gen., Nashville, Patrick Widener, Martha Sherrod, Asst. Dist. Attys. Gen., Johnson City, for respondent.
   OPINION

HENRY, Chief Justice.

We granted certiorari in this criminal action to determine whether information obtained from an undisclosed informant, standing alone, formed a sufficient basis of probable cause to justify a warrantless arrest. A secondary issue is whether petitioner waived his right to assert this error by failing to move to suppress the evidence.

Petitioner was convicted of possessing heroin, sentenced to serve eleven months and twenty-nine days in the Washington County Jail, and fined $500.00. The Court of Criminal Appeals, treating the issue presented as being “the refusal of the trial judge to require the State to reveal the name of the informant or to require that the informant be called as a witness,” held that the State was “privileged to withhold the identity of the informant.” Further, the Court held that petitioner waived his right to complain by failure to move to suppress the evidence.

In view of our disagreement with these conclusions we vacate the judgment and remand.

I.

Factual Background

The facts are simple and undisputed. A Johnson City police office received information that:

Mr. Goines was in the Belmont area sitting at a table with another gentleman and two ladies. The information was that Goines had heroin and had been selling the heroin, and had heroin in his possession at that time.

Relying on this, the only information the police officer had, he and another officer proceeded to a housing project located in the Belmont area in Johnson City. Upon arrival they observed petitioner, along with another male and two females, sitting at a table under a tree playing cards. There is no suggestion of any disorderly conduct or of any visible infraction of law.

They parked their automobile and Officer February walked straight over to petitioner, placed him under arrest, “patted him down”, and put him in the police car. Nothing was found as a result of this search. His companion, after an affray had been quelled, placed the other male in the police car, without searching him. Both were handcuffed and placed in the back seat of the car.

After they arrived at the police department, petitioner was “strip searched” and a syringe was found inside his sock. The police car was then searched and three packets of heroin were found under that portion of the back seat where petitioner had sat as a passenger.

This prosecution ensued.

II.

Pre-trial and Trial Proceedings

Petitioner filed a motion in the trial court seeking “to require the state to reveal the identity of the alleged informant . or, in the alternative to require the state to dismiss the indictment” because the informant was a participant and his identity and testimony “is relevant to defendant’s guilt or innocence and the revealing of his identity is essential to a fair trial.”

On the day of the trial petitioner filed a written motion for “an in-camera examination of the alleged informant.” He asserts four purposes would be served by this examination, which we summarize:

1. To determine whether there was, in fact, an informant.

2. To determine whether the informant gave the police officer any information that would supply probable cause.

3. To determine whether the alleged informant was a participant.

4. To determine whether the informant’s life had been threatened or placed in jeopardy so as to justify a refusal to reveal his identity.

Petitioner, in his written motion, further asserted that “the credibility of the alleged informant in this case has been a critical issue since the inception” of this prosecution. He further asserted that the interests of justice require this inquiry and that it should be made in-cam,era and in the presence only of the trial judge, the District Attorney General, the official court reporter and counsel for the defendant.

These motions were sufficient to raise the critical issues of the existence of an informer, the extent of the information he furnished the police officer, the credibility of the informer, and the good faith of the police officer. These determinations go to the heart of the probable cause issue and, therefore, bear directly upon the legality of the arrest and the constitutionality of the searches and seizures.

At the hearing of these motions the State took the position that the informant “is not a witness to this crime, and we feel that we do not have to reveal his name.” The State called Officer February to the stand and asked him four questions. Responding he gave his name, affirmed that he was the prosecutor, that he had received confidential information, and that that information was as quoted in Section I, infra.

It is noteworthy that he did not testify, nor did the State otherwise prove, that the informant was reliable or trustworthy or to any experience in relying upon information obtained from him.

The trial judge overruled the motions without significant comment.

The petitioner made no motion to suppress nor was there any objection made contemporaneously with any of the pertinent testimony. A motion for an acquittal predicated upon an absence of probable cause and the illegality of the ensuing searches and seizures was made at the conclusion of the State’s proof, and overruled. It was renewed at the conclusion of all the proof and again overruled.

These issues formed a substantial part of petitioner’s motion for a new trial and of his insistence in the Court of Criminal Appeals.

III.

Probable Cause — Information Supplied by Informant

The issues we address are deeply rooted in probable cause. This follows from the fact that the constitutional validity of the search and seizure is wholly dependent upon the legality of the warrantless arrest, which, in turn, must be bottomed upon probable cause. This determination depends upon “whether at that moment the facts and circumstances within [the officer’s] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” (Emphasis supplied). Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145 (1964).

Our courts, state and federal, have considered the matter of probable cause as supported by disclosures made to police officers by informants, and have sought to balance the State’s privilege to withhold disclosure of the identity of informants against the fundamental requirements of fairness. In so doing certain rules have emerged.

The privilege must yield and the identity of the informant must be disclosed when his identity or “the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause,” Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639, 645 (1957); see also Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487 (1955); or when the informant is a participant in the crime, State v. Campbell, 549 S.W.2d 952 (1977); or when he has knowledge favorable to an accused. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

But the precise question with which we deal is not disclosure of the identity of the informer. There is no showing in the instant case that the informer was an eyewitness or a participant. Indeed, his very existence is questioned. Nor is there any showing that the contents of his alleged communication would have been helpful to the accused, nor that he had any knowledge favorable to him. This, however, does not end the inquiry.

We are concerned with the rules governing the action of a trial judge when a challenge is made to the existence and credibility of the informer and the entitlement of law enforcement officers to rely upon information so obtained. A resolution of cases and controversies involving these considerations does not necessarily require identity disclosure. We recognize that the use of informants is a vital, and perhaps indispensable, part of society’s defense against the ravages of the illicit traffic in drugs, and that forcing an undercover agent or informer to “blow his cover” is generally not in the public interest.

We must balance against this, however, the right of the citizen to be secure in his person and possessions against false charges secretly made by the hidden faces of false accusers, or even worse, by overzealous officers of the law relying upon non-existent informants. Hence, the existence and credibility of an informant and the bona fide character of the law enforcement officer’s reliance on such information must be the subject of penetrating analysis and searching scrutiny by trial judges. Indeed, the law so requires.

A law enforcement officer may arrest, without a warrant, upon “reliable and credible” information that a felony has been committed. Jones v. State, 161 Tenn. 370, 33 S.W.2d 59 (1930), reaffirmed in Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487 (1955).

In Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) the Court reversed a warrantless arrest and search, stating:

When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would “warrant a man of reasonable caution in the belief” that an offense has been committed. (Citations omitted). If the court is not informed of the facts upon which the arresting officers acted, it cannot properly discharge that function.
It is possible that an informer did in fact relate information to the police officer in this case which constituted probable cause for the petitioner’s arrest. But when the constitutional validity of that arrest was challenged, it was incumbent upon the prosecution to show with considerably more specificity than was shown in this case what the informer actually said, and why the officer thought the information was credible. We may assume that the officers acted in good faith in arresting the petitioner. But “good faith on the part of the arresting officers is not enough.” (Citations omitted). If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police. (Emphasis supplied). 379 U.S. at 96-97, 85 S.Ct. at 228-229, 13 L.Ed.2d at 148.

The Court is simply saying that the information must be credible and the officer’s acceptance of its credibility must be founded in reason. Credibility of the informant and the reliability of his information are the touchstones of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and these factors must be shown by the prosecution when a challenge of probable cause is made in a no-warrant arrest based upon information supplied by an informant.

In McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) the Court makes it clear that it is the duty of the trial judge to satisfy himself on the basis of an evidentiary hearing that the informant’s information is credible and reliable.

Perhaps the most significant case pertinent to the issue under discussion is Wallis v. State, 220 Tenn. 400, 417 S.W.2d 781 (1967). There the Court, speaking through Mr. Justice Humphreys, reversed and remanded because the “constitutional safeguard of an independent investigation by the trial judge of the reliability and dependability of the arresting officer’s information was not made.”

In Wallis the Court relied heavily upon Simmons v. State, supra, which, as the Court noted, held it to be “the duty of the trial judge, upon objection to the evidence gained by a search made in connection with [a warrantless] arrest, to conduct an inquiry for the purpose of satisfying himself, as a judge, that the arresting officer actually had information that a felony had been committed, and that the information came from a reliable and dependable source.” 417 S.W.2d 784.

We adopt and reiterate these holdings. To justify a warrantless arrest based upon the testimony of an informant, he must be reliable and his information must be credible. When a question as to the reliability and credibility of an informant or his information is fairly raised, it is incumbent upon the trial judge to conduct an evidentiary hearing for the purpose of satisfying himself not only that the informant was reliable but that the law enforcement officer was justified in accepting and acting upon the information so conveyed.

The record in the instant case falls far short of meeting the requisite standard. There was no proof qf credibility or reliability. Reference to our cases will indicate that the application of the proper standard does not necessarily entail a revelation of the identity of the informant.

In McCray, supra, the requirement was fulfilled where the officer testified that the informant gave specific information that was corroborated by investigation and that he was personally known to the officer and had in the past given reliable information that resulted in convictions. Similar proof of reliability has been held acceptable in Tennessee cases, such as Holder v. State, 490 S.W.2d 170 (Tenn.Crim.App.1972) where there was testimony as to past reliability, and State v. Parker, 525 S.W.2d 128 (Tenn.1975) where the informant had previously supplied reliable information.

We hold on the basis of the record before us, that the petitioner was arrested without probable cause and the resulting searches and seizures were constitutionally infirm under the Fourth and Fourteenth Amendments to the Constitution of the United States and under Article 1, Sections 7 and 8 of the Constitution of Tennessee. This holding, however, will yield to proper findings pursuant to the evidentiary hearing directed in Section V, infra.

IV.

Effect of Failure to Move to Suppress

The State correctly asserts the general rule that a failure to object, upon trial, to the legality of an arrest, waives the right to rely upon it on appeal.

It is the State’s insistence that petitioner’s claim should have been asserted by a motion to suppress.. Without doubt it would have been better to have moved to suppress or to have objected to the testimony when offered at trial. We cannot say, however, that the illegality of an arrest and an ensuing search may not be asserted by appropriate motions made in advance of trial.

The test must be whether the issue was fairly raised, or phrasing it another way, whether the trial judge was fairly apprised of petitioner’s objection or given a reasonable opportunity to consider the matter. See Dotson v. State, 2 Tenn.Cr.App. 388, 454 S.W.2d 174 (1970).

It would be manifestly unjust to apply the waiver rule in this case where the petitioner, in advance of trial, fairly apprised the Court of the substance of his objection to the testimony and where on motion for a new trial the Court was again apprised of the petitioner’s contentions.

Making a motion to suppress or objecting to the testimony after the trial judge had overruled petitioner’s motion and held that there was probable cause for the arrest, would have been an idle ceremony and a useless gesture. The courts do not demand that counsel engage in futile efforts. The trial judge had ruled; the question had been resolved; there was nothing left to decide. Further effort would have been argumentative, repetitious and foredoomed to certain failure.

Moreover, we deal with an error of constitutional proportions. No freedom is more deeply entrenched in Anglo-Saxon jurisprudence than that of freedom from unlawful searches and seizures. When it appears in the record of any criminal case that this constitutional guarantee has been ignored, it becomes the duty of the reviewing court to heed the mandate of § 40-3409, T.C.A. by “rendering] such judgment on the record as the law demands.”

V.

Conclusion

We remand this action to the Criminal Court at Johnson City with instructions that an evidentiary hearing be conducted on the issues of the existence, credibility and reliability of the informant, the credibility of his information and whether the law enforcement officers were justified in accepting and acting upon it. In the event these issues are resolved in favor of the State the judgment will be reinstated; otherwise the case will be dismissed.

Vacated and Remanded.

FONES, COOPER, BROCK and HARBI-SON, JJ., concur.

      . The grant was limited to two assignments of error, raising the questions considered in this opinion.

      . This is an imprecise statement of the issue.

      . The record does not support either of these allegations.