author: BARROW, Chief Justice.

text:
    Dean L. TOLAND, Appellant, v. Jerry AZTON, Appellee.
    No. 15824.
    Court of Civil Appeals of Texas, San Antonio.
    June 29, 1977.
    Rehearing Denied July 20, 1977.
    P. Otis Hibler, San Antonio, for appellant.
    Thomas H. Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellee-purchaser was granted a summary judgment in his suit to recover the sum of $500 deposited as earnest money under the terms of a written contract for the sale by appellant of a residence in San Antonio. The contract was conditioned upon “Purchaser’s ability to qualify for, or Realtor’s ability to secure for Purchaser, a conventional loan . . . amortizable over a period of not less than (30) years, with interest not to exceed (8%) per an-num.” The trial court held that an oral modification by the parties to increase the maximum rate of interest to 9V4 percent per annum was prohibited by the statute of frauds as a matter of law.

Appellant urges on this appeal that the oral modification of the earnest money contract which is evidenced by appellee’s written loan application is not prohibited by the statute of frauds. In any event, appellee is estopped to deny the oral modification or waive the condition precedent.

The following facts are established: Appellant and appellee entered into a written earnest money contract on May 12, 1975, whereby appellant agreed to sell a described house and lot in the City of San Antonio for the sum of $31,000, payable $3,100 in cash including the earnest money of $500, and the remaining sum of $27,900 to be evidenced by a promissory note. The contract was subject to and conditioned upon appellee's ability to obtain a loan as heretofore described. Neither appellee nor appellant was able to obtain a conventional 30-year loan at 8 percent interest. However, appellant learned that First Federal Savings would make such a loan at 9¼ percent interest. Appellant contacted appellee who orally agreed to this rate and said he wanted to close the deal at the higher rate of interest. Subsequently, appellee advised appellant that such loan had been obtained. Appellant then proceeded to make certain repairs and modifications to the house as required by the earnest money contract. Appellee and his financier participated in this work and appellee had the utilities placed in his name. The modifications were completed and appellee was notified that the legal papers were ready for the deal to be closed on June 30, 1975. On this date appellee advised the title company and appellant that he would not close the deal. Appellant refused to return the earnest money because he had spent more than this sum on the modifications and appellee filed this suit.

Appellee urges that the statute of frauds applies to an oral agreement that changes, alters, or is substituted for an initial written contract. In Dracopoulas v. Rachal, 411 S.W.2d 719 (Tex.1967), it was held that parties to a written contract that is within the statute of frauds may not by mere oral agreement alter one or more of the terms thereof and thus make a new contract resting partly in writing and partly in parol. The Supreme Court expressly recognized the rule in Garcia v. Karam, 154 Tex. 240, 276 S.W.2d 255 (1955), that the consideration for a real estate contract does not have to be in writing to comply with the statute of frauds and that the method of paying the consideration could be orally changed. However, the Karam rule was found not to be controlling in Dracopoulas in that the oral agreements relied upon by Rachal made material changes in the original written contract which were essential to his right to recovery.

The oral modification relied upon by appellant changed only the amount of interest on the note to be signed by appel-lee. Although appellant would continue to receive the agreed price of $31,000, appellee would be required to pay a higher price for this sum because of the increased interest rate. Assuming that this modification amounted to a change in the manner of payment of the consideration for the contract, such a change could be orally agreed upon in that the statute of frauds does not require that the consideration for the sale of realty be expressed in writing. Botello v. Misener-Collins Co., 469 S.W.2d 793 (Tex.1971); Garcia v. Karam, supra; Gulf Pro duction Co. v. Continental Oil Co., 139 Tex. 183, 164 S.W.2d 488 (1942).

Furthermore, the oral change in the interest rate was subsequently ratified in writing by appellee. On May 29, 1975, ap-pellee made written application with First Federal Savings for a 30-year conventional loan with interest at the rate of 9¼ percent for purchase of this property. This application was not signed by appellant and he was not a party to same. In Adams v. Abbott, 151 Tex. 601, 254 S.W.2d 78, 80 (1975), the following rule was set forth which is applicable to our case:

A memorandum is required by the statute of frauds, not for the purpose of obtaining a contract in writing, but merely to furnish written evidence, signed by the party to be charged, of the obligation to be enforced against him. Therefore, a valid memorandum of the contract may consist of letters and telegrams signed by the party to be charged and addressed to his agent or the other party to the contract, or even to a third person not connected with the transaction.

Thus, the loan application is a part of the written memoranda evidencing the agreement between appellant and appellee. See also: Taggart v. Crews, 521 S.W.2d 703 (Tex.Civ.App. — San Antonio 1975, no writ).

Appellee, by signing the loan application which provided for interest at the rate of 9⅛ percent per annum, ratified his oral agreement to this change in the consideration.

In any event, this record raises a fact issue on the question of estoppel. Because of the oral modification of the rate of interest and lendor’s approval of the appel-lee for such a loan, appellant carried out his obligations under the contract to make modifications and changes to the residence. Appellee knowingly acquiesced and even participated in this work and the resulting expense incurred by appellant. The Supreme Court in “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934 (Tex.1972), recognized the application of the doctrine of promissory estoppel so as to enforce contracts otherwise barred by the statute of frauds. If appellant’s evidence be accepted as true, enforcement of the statute of frauds should itself amount to a fraud on appellant’s rights.

The trial court erred in granting appel-lee’s motion for summary judgment and granting him judgment for the sum of $500. The judgment of the trial court is reversed and the cause remanded for trial on the merits.

      . Some of the facts are disputed, but for the purpose of this appeal from the granting of a summary judgment, we must accept these facts as true.

      . The expiration date of the written listing agreement was indefinitely extended and the exclusive listing provision was changed to nonexclusive by the oral agreement.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Steven C. SHANE, Respondent.
    Supreme Court of Kentucky.
    July 1, 1977.
    Leslie G. Whitmer, John T. Damron, Ky. Bar. Ass’n, Frankfort, for complainant.
    Steven C. Shane, pro se, Shane & Rebel, Cincinnati, Ohio, for appellee.
   PER CURIAM.

This is a disciplinary proceeding in which the Board of Governors of the Kentucky Bar Association found Steven C. Shane guilty of unprofessional conduct and recommended that he be publicly reprimanded and ordered to pay the costs of the action.

Shane is an Ohio attorney whose address is 2199 Victory Parkway, Cincinnati, Ohio. He is not a member of the Kentucky Bar Association.

In April 1976, Shane entered his name as co-counsel in a civil action pending in the Kenton Circuit Court. Shane represented the defendant. On November 12, 1976, Shane wrote a letter to the attorney for the plaintiff. Shane then forwarded a copy of that letter to the opposing party in direct violation of Disciplinary Rule 7-104(A)(l), which provides that:

(A) During the course of his representation of a client a lawyer shall not:
(1) communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”

On March 4, 1977, the director of the Kentucky Bar Association was advised that the Cincinnati Bar had determined a private reprimand and a letter of apology were sufficient punishment for Shane’s violation of the disciplinary rules of the Code of Professional Responsibility.

The Board of Governors of the Kentucky Bar Association felt otherwise and acted accordingly. Shane was found guilty by unanimous vote of the Board of Governors of violating DR 7-104(A)(l). A majority of the Board of Governors voted that Shane be publicly reprimanded.

Shane admits his violation of DR 7-104(A)(1). However, he opposes the recommendation of the Board of Governors as to a public reprimand. He suggests that his punishment be no more severe than that established by the Cincinnati Bar Association.

Although Shane is not licensed in Kentucky, he is subject to the jurisdiction of this court when he practices law in Kentucky. This court is not bound by the disciplinary penalties imposed on Shane in a foreign jurisdiction for the same conduct for which he is to answer in Kentucky.

The recommendation of the Board of Governors is accepted by this court. Accordingly, it is ordered that Shane be hereby publicly reprimanded and required to pay the costs of this proceeding.

All concur.


author: JONES, Justice.

text:
    Milton (Bus) COLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. SC-103-MR.
    Supreme Court of Kentucky.
    July 1, 1977.

      Jack Emory Farley, Public Defender, Mark A. Posnansky, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Michael R. Beiting, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Bus Cole appeals from a judgment sentencing him to 15 years and to life imprisonment respectively pursuant to a jury verdict finding him guilty of involuntary manslaughter in the first degree and of being a habitual criminal. The trial court directed that the sentences run concurrently. Cole is not satisfied with the result and prosecutes this appeal. It is noted that trial counsel and appellate counsel are not the same. Local attorneys represented Cole at trial; the public defender represents Cole in this appeal.

Cole raises seven issues on this appeal: (1) the indictment was defective; (2) the trial court coerced the jury to return a verdict; (3) the Commonwealth’s Attorney improperly asked leading questions of the prosecution witnesses; (4) the jury, without knowledge or consent of Cole, was allowed to take a dictionary to the jury room during deliberations; (5) a witness for the prosecution was appointed bailiff to wait upon the jury after the case was submitted; (6) Cole was tried as a habitual criminal in a non-bifurcated trial; (7) the Commonwealth’s Attorney should have recused himself because Cole was his former client. Cole asserts that for these reasons he was denied a fair trial.

So that the issues may be properly resolved, it is appropriate to recite briefly some of the pertinent facts.

On July 27,1974, between 11:00 A.M. and noon, Cole and Lisa Dixon (sic) Dickerson, a neighbor girl three years of age, went in Cole’s Cafe in Adairville, Kentucky. Charles Ray Spaulding, an uncle of Lisa’s mother, and approximately eight other persons, were in the cafe. The evidence of those present although in sharp conflict, established that Cole took a .25 caliber automatic pistol from his pocket and pointed it at Spaulding’s chest and face. He then handed the gun to Lisa and told her to “shoot this nigger,” or “shoot that son-of-a-bitch.” Lisa held the gun in both hands, and pointed it at Spaulding. She did not pull the trigger. Cole then grabbed the pistol and tampered with it. He was in the process of handing the gun to Lisa when it discharged into Spaulding’s chest. In two minutes or less, Spaulding was dead. After the shooting, Cole put the gun in his pocket and nonchalantly walked out of the cafe. A few minutes later he returned. Witnesses to the shooting testified that when Cole returned he said: “Don’t blame Lisa, it wasn’t her fault.”

In his defense of accidental shooting and killing Spaulding, Cole testified that he gave the gun to Lisa. He denied telling her to shoot Spaulding. He didn’t know the gun was loaded. He carried it in his tackle box to shoot snakes and wild foxes. He admitted that he had given the pistol to Lisa on other occasions. He did that so she could frighten those who teased her. He testified that Spaulding was a good friend. On a number of occasions when Spaulding was drunk, he cared for him, and was his benefactor in other ways.

Cole first argues that the indictment is defective. He asserts the body of the indictment lists one felony conviction on February 5,1946. He insists there is no record in the indictment as to the principal charge for which he was tried or for the other prior felony conviction. The record reveals that when the prosecutor made an opening statement to the jury, he read the indictment which contained all the counts against Cole and for which he was tried. In preparing the transcript of record for this appeal, the clerk failed to include that portion of the indictment about which complaint is made. On April 20, 1977, this court by order granted the Commonwealth’s motion to correct the transcript of record by adding a missing page. The tendered certified copy was ordered docketed on that date. Thus, all the fuss about the defective indictment is pure fiddle-faddle. The corrected indictment conforms to RCr 6.10 and Willis v. Commonwealth, Ky., 489 S.W.2d 823 (1973).

There is no merit in Cole’s argument that the remarks of the trial court coerced the jury to return a verdict. The jury voluntarily returned to the jury room after the trial court clarified its instructions. It is true that after the jury had deliberated six hours, the foreman reported that the jury was hopelessly deadlocked. The trial court agreed but stated: “You realize this may make us have to go through another week of this.” The foreman of the jury stated that would have no effect on the jury’s deliberation.

Burnam v. Commonwealth, 283 Ky. 361, 141 S.W.2d 282 (1940) cited by Cole is distinguishable from this case. In Burnam the trial court ordered the jury to return to its deliberations. He threatened to keep the jurors sequestered for a week. In this case the jury volunteered to continue its deliberations. The trial court showed compassion for the jury’s welfare. He asked the jury about providing a meal for the members of the jury. The trial court’s remarks about another week was not directed at the jury trying Cole’s case. Hence, there was no coercion by the trial court for the jury to return a verdict. Therefore, Cole was not prejudiced by the trial, judge’s remarks to an inquiring jury. Boggs v. Commonwealth, Ky., 424 S.W.2d 806 (1966).

Cole argues that he was prejudiced by the prosecution’s leading questions. This court has read the entire transcript of the trial proceedings including all the evidence. Both the Commonwealth’s Attorney, as well as counsel for Cole, elicited much irrelevant evidence from the numerous witnesses. There was, on some occasions, a tendency on the part of counsel for the Commonwealth and counsel for Cole to ask leading questions. The practice condemned by Cole is like the “pot calling the kettle black.” However, the trial judge was in command of the trial ship. He ruled upon the objections with dispatch. He sustained an objection of Cole’s attorney to a witness referring to a “bullet hole” in Spaulding’s shirt and directed all references to that statement stricken. Other examples of “leading questions” about which Cole complains involved information which had been elicited from the witnesses on direct examination. A question on redirect examination is not a leading question if the same information has been testified to by the witness on direct examination. Apple v. Commonwealth, Ky., 296 S.W.2d 717 (1956). The trial court’s ruling will be reversed only where a “shocking miscarriage of justice” has occurred. Such has not been shown here. Meredith v. Commonwealth, 265 Ky. 380, 96 S.W.2d 1049 (1936).

There is a time and a place for all things. Permitting a jury to take a dictionary to the jury room is neither the time nor the place. . The record reveals that the bailiff informed the trial court the jury had requested a dictionary. The trial court furnished the bailiff a dictionary. He took it to the jury. At a hearing on Cole’s motion and grounds for a new trial, the bailiff testified that Cole’s trial counsel was notified but had no objection. Cole’s attorney asserted he had no knowledge of the matter until a member of the jury returned the dictionary to the trial court. At that time he objected. In the trial of a case the best practice is to allow jurors to examine matters not introduced in evidence in open court and then only by consent of counsel. Watson’s Executor v. Watson, Et Al., 137 Ky. 25, 121 S.W. 626 (1909).

Cole’s complaint of prejudice is based on the belief that the jury used the dictionary definitions of “wanton act” and “wanton indifference” as a substitute for the definitions contained in the trial court’s instructions. The record reveals that the dictionary was not an aid to the jury. The trial court in his Instruction Number Two (2) on involuntary manslaughter in the first degree defined a wanton act:

“The meaning of the words ‘wanton act’ as used in this instruction means a wrongful act done on purpose in complete disregard of the rights of others, with conscious knowledge of and complete disregard for the probable consequences.”

At the request of the jury, the trial court clarified “wanton act” and “wanton indifference” to the satisfaction of the jury. He explained the definition of “wanton act” in the second paragraph as referring to the same thing as the defendant’s “wanton indifference” in the first paragraph of the instruction. With the clarification, the jury expressed a desire to try to arrive at a verdict. The colloquy between the trial court and the jury’s foreman occurred after the jury had returned the dictionary. Thus, Cole was not prejudiced by the jury’s possession of the dictionary. Therefore, the error, if any, in providing the jury a dictionary was harmless.

Cole’s next assignment of error is that a state trooper who assisted in the investigation of the homicide, and testified as a witness, was appointed bailiff to guard and wait upon the jury. He contends he was denied fundamental fairness at trial by this action. Cole’s trial counsel made no objection to the trial court’s appointment of the state trooper as bailiff. Thus, there was no error. The trial court had no opportunity to rule on the question because it was not brought to his attention.

Complaint is made that the bailiff was not sworn pursuant to RCr 9.68 to keep the jury together and to protect the members from outside communications. It is noted that the trooper acting as bailiff was sworn to guard the jury when the trial court directed it to view Cole’s cafe prior to the introduction of evidence. It is not reversible error in failing to administer the oath to the officer having charge of the jury where that officer actually performs his duties. Mason v. Commonwealth, Ky. App., 463 S.W.2d 930 (1971). Because the state trooper as bailiff properly performed his duties, there was no error. RCr 9.68.

Cole’s argument that the trial court should have held a bifurcated trial is totally without merit. This court has persistently refused to hold that the non-bifurcated trial procedure denies habitual criminals due process of law. See Wilson v. Commonwealth, Ky., 476 S.W.2d 622 (1971).

The enactment of the Penal Code is not applicable in this case. Cole was indicted for the offenses of murder, a violation of KRS 435.010; and habitual criminal, a violation of KRS 431.090. The indictment was returned October 21,1974. He was convicted of the lesser degree of involuntary manslaughter in the first degree, and of being a habitual criminal. The Penal Code is not retroactive, and therefore has no relevance for purposes of this appeal.

Cole challenges the trial court’s instructions to the jury. He contends that the instructions submitted by the trial court are insufficient to reduce the prejudicial effect of the evidence of his prior felony convictions. He asserts that his tendered instructions were improperly denied. This court notes that Cole’s proposed instructions are almost identical to the instructions given by the trial court. Hence Cole’s argument about the instructions is spurious.

Finally, Cole contends that the Commonwealth’s Attorney should have been disqualified from the case because of his representation of Cole at his 1946 conviction. He argues that this is a conflict of interest which denied him his due process right to a fair trial. A prosecuting attorney is disqualified from acting in a criminal case only if he has previously represented or been consulted professionally by the accused with respect to the same offense charged or in matters so closely interwoven as to be in effect a part thereof.

The Commonwealth’s Attorney acquired no confidential information when he defended Cole 29 years previous to this trial which he could have used in the case at bar. The existence of the prior conviction of Cole for the habitual criminal offense was established by the testimony of the clerk of the Logan Circuit Court. It was a matter of public record. Thus, there was no conflict of interest so as to disqualify the Commonwealth’s Attorney.

This court is not willing to substitute its judgment for that of the jury that tried this case. The jury heard many witnesses. It was properly instructed upon the law of the case. Under the evidence presented in this case, the jury could have found Cole guilty of murder. He should be content that it did not so find.

The judgment is affirmed.

All concur.


author: COOPER, Judge.

text:
    Jack L. COLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1977.

      Robert M. Kirtley, Owensboro, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
    Before COOPER, LESTER and WHITE, JJ.
   COOPER, Judge.

This is an appeal from a judgment in the Henderson Circuit Court, wherein the appellant, Jack L. Coley, was indicted and tried for committing the offense of theft by deception, but was convicted of the offense of attempted theft by deception.

David Sheets, a mechanic, testified that he was hired by the appellant to rewire his 1971 Cadillac automobile. He performed the work but the automobile would not run properly. The appellant instructed Sheets to loosen the gas line, that he, the appellant, was going to burn the car. Coley poured gasoline in the front of the car, set it afire and then told Sheets to call the fire department. The car had burned by the time the fire department arrived. Sheets also testified that Coley had attempted to burn the car on a previous occasion, but a truck driver had put the fire out before too much damage had been done.

William S. Jones, a claims representative for the Kentucky Farm Bureau Mutual Insurance Company, testified that Coley filed a claim for loss on April 19, 1976. He stated that Coley reported on the form that the fire had started as a result of the car’s backfiring, and that the total loss was between $2,800 and $3,000. The claim was not paid.

Hugh Stone, a deputy sheriff, testified that he investigated the fire and saw the car while the fire department was attempting to extinguish the fire. He said Coley told him two different stories as to the details of the fire. First, Coley told him that he was towing the car when it backfired and caught fire. Later, Coley said he was driving the car and then it quit; he tried to start it but it backfired and caught on fire.

Roy Crider, Kentucky State Police Arson Investigator, introduced pictures of the damaged car stating that the fire started between the instrument panel and the front seat. He further stated that the instrument panel was on the floor and an acceler-ant was applied, explaining that an acceler-ant was something like gasoline, kerosene or diesel fuel. Samples of the burned material were taken and sent to the laboratory in Frankfort. Crider’s opinion was that the fire did not start in the motor because the hoses were not burned, and it appeared that only a flash fire occurred in the motor section. He stated that the fire could not burn through the fire wall into the driver’s section without burning the motor more than it was burned, and if the fire originated by backfire in the motor section the hood would have been damaged more.

Barry Marston, a chemist with the State Crime Laboratory, stated that the materials found in the sample debris sent to him contained gasoline or flammable petroleum by-products.

Coley testified that the car first burned on an expressway and was put out by a trucker. The car then had a gas leak in it and he employed Sheets to repair the damage. Upon Sheets’s apparent repairing of the car, it again did not work properly and it backfired and caught fire.

On rebuttal, the Commonwealth put on Jack Williams who worked with Coley in the coal mines. He testified that Coley had indicated in front of him and others that he, Coley, was going to burn his car to collect the insurance.

Appellant was indicted for committing theft by deception and the Commonwealth’s attorney stated to the jury that theft by deception was the charge. He further asked the jurors during voir dire whether they could sentence Coley to not less than one (1) year nor more than five (5) years in the penitentiary, the penalty which is provided for theft by deception, if they were satisfied he had been proven guilty.

It developed that no money had been paid by the insurance company, and the only offense that could have been committed was attempted theft by deception. The appellant tendered instructions to the Court on the misdemeanor offense which were accepted and given to the jury.

Appellant was convicted of the offense of attempted theft by deception to defraud his insurer, and received a sentence of 12 (twelve) months in jail and a fine of $500.00.

Two questions are involved in this appeal:

(1) WAS IT PROPER TO TRY THE DEFENDANT ON A CHARGE OF THEFT BY DECEPTION?
(2) WAS THE CLOSING ARGUMENT OF THE PROSECUTING ATTORNEY SO IMPROPER AS TO CONSTITUTE A REVERSIBLE ERROR?

It is the contention of the appellant that his case was greatly prejudiced due to the fact that he was tried on the greater charge, to-wit: theft by deception, and convicted on the lesser charge as per instructions given by the trial court. There is a long line of cases that hold that the rights of a defendant are not prejudiced if he is tried on the greater offense, and the trial court instructs on the whole law of the case and he is convicted of a lesser degree of the offense. In the case of Couch v. Commonwealth, Ky., 479 S.W.2d 636 (1972), the Court held that the giving of an instruction on murder is not prejudicial to defendant who was convicted of voluntary manslaughter. In the case at bar, the only instructions given were on the lesser offense. The Commonwealth’s attorney was prosecuting the case based upon the Grand Jury’s indictment, and by the time of trial the insurer could have paid defendant the money thereby completing the felony charge.

Appellant asserts that the closing argument of the Commonwealth’s attorney was so improper that it constituted a reversible error. As stated in Hunt v. Commonwealth, Ky., 466 S.W.2d 957 (1971): “. . . a Commonwealth’s attorney is entitled to draw reasonable inferences from the evidence, to make reasonable comment upon the evidence and to make reasonable argument in response to matters brought up by the defendant.” Perhaps the language of the prosecuting attorney was not altogether proper, but it certainly was not a prejudicial error considering the overwhelming proof of appellant’s guilt as outlined earlier in this opinion.

The judgment is affirmed.

All concur.


author: LESTER, Judge.

text:
    Joyce Lee HOFFMAN, Appellant, v. Bobby Lee HOFFMAN, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1977.

      Elizabeth E. Vaughn, Vaughn & Vaughn, Henderson, for appellant.
    M. S. Mahurin, Henderson, for appellee.
    Before COOPER, LESTER and WHITE, JJ.
   LESTER, Judge.

On December 22, 1975, the trial court entered a decree of dissolution of marriage which disposed of all issues except the amount of permanent child support and division of the property of the parties. By Decree of April 16, 1976, which included Findings of Fact, the court below awarded $25.00 per week for the support of the infant daughter and ordered the husband to provide for the seventeen year old son. The chancellor found that the parties had certain real and personal property and because he was “unable to ascertain from the pleadings and proof the reasonable value of said property in order to make a fair and equitable distribution of said property”, he ordered all of it sold at a public auction by an auctioneer at such time, place and under such conditions as were to be determined by the auctioneer. From the proceeds of that sale, there were to be paid the costs of the sale, the costs of court, $1,500.00 to each attorney, any non-business debts of the parties in existence prior to their separation, and $500.00 to petitioner as arrearage on child support. Any sums remaining would be divided equally. The notice of entry of judgment was August 4, 1976, and appellant filed her notice of appeal on August 19, 1976.

Petitioner below filed her statement and brief in this Court on December 14, 1976, and appellee failed to file any document whatsoever within the time allotted to him, namely, January 13,1977, which resulted in appellant’s motion of May 4, 1977, to dispose of this appeal under the provisions of RAP 1.260. We note that counsel for the wife certified that not only did she serve the husband’s attorney but also respondent at a Houston, Texas address. On May 12, 1977, by way of response, appellee states that in the early part of December, 1976, he dismissed his trial attorney and that “expense and other difficulties” have prohibited him from filing a brief and he asks that we consider the case on its merits because he believes the judgment below “to be fair and equitable.” We refuse to do so for several reasons.

Appellee was deemed to be on notice that this cause was appealed on August 19, 1976, and instead of responding thereto, he dismissed his attorney in December of that year. Moreover, he continues in his lethargy for some five additional months and then wants his case considered on its merits giving as his only excuse for his apathy that to reply would involve expense among “other difficulties.” We are authorized by RAP 1.260 to impose certain penalties and subsection (c)(3) of that rule permits this Court to regard the appellee’s failure to comply with RAP 1.230 as a confession of error and reverse the judgment without considering the merits of the case. That penalty is appropriate in the circumstances. Commonwealth v. Skiadas, Ky., 454 S.W.2d 110 (1970). This approach has been taken in domestic relation matters, Cartwright v. Cartwright, Ky., 419 S.W.2d 576 (1967) but not in cases involving child custody, Borjesson v. Borjesson, Ky., 437 S.W.2d 191 (1969) which means we will affirm the decree of dissolution of marriage dated December 22, 1975, which determined the child custody question.

The appellant contends that the record is in such a state of confusion that the further taking of proof will be necessary and we are of the opinion that the brief sustains this contention especially when the trial court reached the same conclusion in its findings of fact, supra. However, as did the court in Commonwealth v. Siler, Ky., 487 S.W.2d 926 (1972), we believe it may be helpful to provide some guidance to the trial court and the parties to aid them in the retrial of the case.

KRS 403.190 sets forth the factors to be considered in the division of property. In the case at bar, the parties came into the marriage having no property and subsequent thereto, they acquired several businesses, a home, furniture, automobiles and various items of personalty. The values of these items should be determined as well as the debts of the parties. We are unable to glean from the record to whom the restaurant business belongs, what are its liabilities and who operated it. There is nothing to indicate the income of these individuals and who has the greater ability to pay support at the time of the proceedings and in the future. We are unaware of the wife’s training to enter either a profession or the industrial arena. We believe the court should require further proof under its direct supervision or that of the master commissioner and at the conclusion thereof, apply the principles of the statute and cases decided thereunder.

The judgment of the Union Circuit Court entered December 22,1975, as to the dissolution of marriage and award of custody of the children is affirmed and the judgment of April 16, 1976, is reversed for further proceeding in conformity with this opinion.

All concur.


author: HAYES, Judge.

text:
    Geneva DUNCAN and Jake Duncan, Appellants, v. Robert BECK and Cooper Palléts Company, Appellees.
    Court of Appeals of Kentucky.
    July 1, 1977.

      Stephen R. Yeth, Kenneth R. Burgess, David Kaplan, Louisville, for appellants.
    Chester A. Vittitow, Jr., Hogan, Taylor, Denzer & Bennett, Louisville, for appellees.
    Before HAYES, HOWARD and WIN-TERSHEIMER, JJ.
   HAYES, Judge.

This is an appeal of a summary judgment entered in the Jefferson Circuit Court which dismissed appellants’ claims for personal injuries and property damage arising out of an automobile accident. Appellants, Geneva and Jake Duncan, contend that the trial court erred in granting this judgment. This court agrees in part and reverses that portion of the judgment which concerns the property damage.

On August 5, 1975, appellants were involved in a collision with appellee, Robert Beck, who was driving a vehicle owned by Cooper Pallets. As a result of this accident, appellants suffered certain injuries. In addition, the vehicle, which was owned and driven by Geneva Duncan, was totally destroyed. Jake Duncan’s injuries consisted of contusions and abrasions of the right knee and pain in his neck and back. Geneva Duncan suffered pain throughout most of her body. Both appellants were treated by the same physician and each incurred medical expenses of less than three hundred dollars ($300.00).

Appellants filed suit in February, 1976, seeking to recover for their personal injuries and property damage. Only the appel-lee, Robert Beck, filed an answer to this action, although both appellees were served. A motion for a summary judgment was made in October of 1976, alleging that this claim was barred by KRS 304.39-010 et seq. This motion was granted some three (3) days prior to the scheduled trial date.

Since neither appellant had rejected “no fault” they are both subject to the provisions of KRS 304.39-010 et seq. KRS 304.-39-060(2)(a) abolished tort liability for personal injuries received as the result of an automobile accident. However, KRS 304.-39 — 060(2)(b) does permit tort actions under the following exceptions:

1. Medical expenses which exceed $1,000.00.
2. Permanent disfigurement.
3. Fracture to a weight-bearing bone.
4. Compound, comminuted, displaced or compressed fracture.
5. Loss of body member.
6. Permanent injury within a reasonable medical probability.
7. Permanent loss of a bodily function.
8. Death.

Although their medical expenses do not exceed one thousand dollars ($1,000.00), appellants contend that their injuries are such as to place them within other exceptions listed in KRS 304.39-060(2)(b), and therefore, it was error to grant the summary judgment. Basically, their argument is that they have suffered permanent injuries and that appellant, Jake Duncan, has sustained permanent disfigurement.

In his deposition, appellants’ physician stated that he had no opinion as to the permanency of injury. This is the only proof which appellants had offered concerning this issue. Nevertheless, appellants argue that they should have been allowed to go to trial to prove permanency. KRS 304.-39-060(2)(b) requires that the permanent injury be proven “within a reasonable medical probability”. Since appellees had met their burden as movants under the motion for a summary judgment, it was incumbent upon appellants to present some evidence on this issue. Tarter v. Arnold, Ky., 343 S.W.2d 377 (1960) and Neal v. Welker, Ky., 426 S.W.2d 476 (1968). This they did not do. The mere hope that something would turn up within the last three days is not sufficient to prevent the granting of a summary judgment, Neal v. Welker, Id.

As the result of the abrasions received by appellant, Jake Duncan, he has some small scars upon his right knee. His physician testified that the scars can only be seen upon close examination of the knee. It is appellants’ contention that these scars give rise to a permanent disfigurement under KRS 304.39-060(2)(b). To support their position, appellants cite several Kentucky cases that deal with the issue of permanency of scarring and also quote the definition of “disfigurement” which is contained in Black’s Law Dictionary. That definition is as follows: “That which impairs or injures the beauty, symmetry or appearance of a person or thing, that which renders unsightly, misshapen or imperfect or deforms in some manner.”

When the legislature enacted KRS 304.39-010 et seq., it was their intention to limit tort claims arising out of automobile accidents. This limitation only permits claims of those with serious injuries. Given the facts presented concerning the small scars on the knee of appellant, Jake Duncan, this court does not believe that such injuries constitute “disfigurement” under the statute.

KRS 304.39-010 et seq., however, does not cover claims for property damage, and, as all parties agree, it was error to grant a summary judgment on this issue. The judgment, therefore, is reversed and remanded for a trial on this issue only.

Appellants raise one final issue which requires discussion. Since appellee, Cooper Pallets, filed no answer, was it error to dismiss the action against them? During oral argument, counsel for Beck stated that Cooper Pallets is only a name under which Beck operates his business. With this in mind, upon remand the trial court should examine this issue and determine if there is a need for Cooper Pallets to file an answer.

All concur.


author: HENLEY, Judge.

text:
    In the Matter of INTERIM REPORT OF the GRAND JURY convened FOR the MARCH TERM OF the SEVENTH JUDICIAL CIRCUIT OF MISSOURI 1976. Appeal of Ed STEIN, Movant.
    No. 59578.
    Supreme Court of Missouri, En Banc.
    July 11, 1977.
    Rehearing Denied July 11, 1977.
    Roger Guy Burnett, Liberty, for appellant.
    Thomas E. Allen, Asst. Pros. Atty., Liberty, for respondent.
   HENLEY, Judge.

This is an appeal by Ed Stein (movant) from an order of the Circuit Court of Clay county overruling his motion to expunge from the court’s records an interim report filed by its grand jury convened for the March Term, 1976. The order overruling movant’s motion is a final judgment from which an appeal will lie. State ex rel. Lashly v. Wurdeman, Judge, 187 S.W. 257, 248 (Mo.banc 1916). Appellate jurisdiction is in this court, because the case involves construction of the constitution of Missouri. Article V, § 3, Constitution of Missouri.

The issue presented is whether a grand jury, after investigating the conduct of a named public officer, may report its findings based thereon other than by indictment.

Movant contends that the court erred in overruling his motion, because the grand jury did not have authority under either the constitution or the statutes to “report” the results of this investigation; that it had the authority to report by way of indictment, but no authority to report short of charging him by indictment with commission of a criminal offense. He points to Article I, § 16, the only provision in the constitution regarding the powers of grand juries, and says that that section, unlike § 11 of Article XIV of the prior constitution, does not require or empower a grand jury to “report” to the court the results of its investigation into the conduct of public officers. He also points to § 540.020, the only section of the statutes which authorizes a grand jury to file a “report,” and calls attention to the fact that it specifically limits that authority to a report on the condition of public buildings.

In summary, movant’s position is that, in circumstances such as those presented in this case, a grand jury should either indict or be quiet; that public policy and concepts of fair play require that it do one or the other, because a person accused by indictment is afforded an opportunity to refute the charge by answer and to present his defense at a trial, but where the accusation is by report he is denied that opportunity.

The grand jury (as respondent), through its counsel, contends that there is authority at common law and in the constitution and statutes for it to make the type of report filed in this case; that the authority to investigate implies the power to file for record a report which accuses but does not indict.

In approaching the issue presented we bear in mind two historical functions of a grand jury under the common law of England adopted by what is now § 1.010. One was to accuse and thereby bring to trial those believed to have violated the law. The other, equally important but often overlooked, was to protect the citizen against unfounded accusation of crime. Conway v. Quinn, 168 S.W.2d 445, 446[1] (Mo.App.1942). In State ex rel. Lashly v. Wurdeman, supra, 187 S.W. at 259, this court, speaking of grand juries, said: “That body is a component part of the court, existed at common law, and is recognized in the Constitution, where some of its duties are specified. Its creation and duties are provided for by statutes. The grand jury is a great inquisitorial body, originally designed to vindicate the law and to protect the body of the people from the encroachments of arbitrary power. It is a necessary adjunct of all courts charged with the enforcement of the criminal law.” See also State ex rel. Hall v. Burney, 229 Mo.App. 759, 84 S.W.2d 659, 664[5] (1935).

There is a division of opinion as to whether at common law a grand jury had the power to file a report (as distinguished from an indictment) censuring an individual, some cases and articles on the subject taking the view that the grand jury did not have such power and others that it did. We will assume, for the purposes of this case, that at common law a grand jury had the duty and the authority to report the results of its investigation of the official acts of officers having charge of public funds. We know it had that duty and authority under the 1875 constitution. Article XIV, § 11, supra, of that constitution clearly so provided. Hence, if our assumption is accurate, it may be said that this provision of the 1875 constitution was consistent with the common law.

However, that provision in the 1875 constitution is not to be found in the present constitution. And, while the common law was adopted by § 1.010, it is clear from chapter 540, particularly § 540.020 thereof specifying in detail the duties and powers of the grand jury, that the general assembly intended that the common law applicable to grand juries be superseded by these statutes. The power of a grand jury to “investigate * * * all character and grades of crimes” and “to inquire into the willful misconduct in office of public officers” is limited by § 540.020 and Article I, § 16, to finding or returning indictments. Now, as in the 1875 constitution, a grand jury may inquire into the misconduct of public officers, but the authority to report thereon explicit in the 1875 constitution is conspicuous by its absence.

The italicized portion of Article I, § 16, supra, appears for the first time in the 1945 constitution and is almost identical to Article I, § 6, of the New York constitution adopted in 1938. The court of appeals of that state had occasion to interpret § 6 in Wood v. Hughes, 9 N.Y.2d 144, 212 N.Y. S.2d 33, 173 N.E.2d 21 (1961) which involved the same issue presented in this case. The court held that the “grand jury had no authority to make a report concerning alleged mismanagement of public office where investigation into charges of misconduct on part of public officials uncovered no evidence warranting an indictment.” The court stated that it had been explained at the Constitutional Convention that the purpose of the quoted provision of the constitution was to make certain that the “legislature * * * would never be able to * * * take from the grand jury its authority to investigate and indict for alleged criminal acts by public officials,” as had been attempted in a neighboring state. Discussing this purpose in connection with the question of whether § 6 had anything to do with a grand jury’s power to make and file a report, the court said: “Not only does it avoid any intimation of a grand jury power to make or publish a report, but, in so many words, it inseparably links the grand jury’s power ‘to inquire into the wilful misconduct of public officers’ with its power ‘to find indictments * * * in connection with such inquiries.’ Here, rather than constitutional recognition of a power to report, is explicit constitutional guarantee of a power in the grand jury to inquire and indict.” 212 N.Y.S.2d at 37,173 N.E.2d at 24. It is quite clear that the purpose of the italicized portion of § 16 of Article I was to insure that the power of a grand jury to investigate and indict public officials for criminal acts in office could not be suspended; that it had nothing whatsoever to do with a power to report short of indictment.

The argument that the power given by the constitution and chapter 540 to investigate implies the power to report is not persuasive. Subsection 1 of § 540.020, implementing the constitutional provision, expressly gives the grand jury “power to investigate and return indictments for all grades of crimes.” The power to report is not mentioned. Instead, under this subsection, investigation contemplates and authorizes only the return of an indictment. Subsection 2 lists several specific areas for grand jury inquiry and investigation. The first area mentioned explicitly directs that the grand jury “examine public buildings, and report on their conditions” (emphasis added), but reporting power is not expressed in connection with the other specific areas or in connection with the general areas of law violations which the trial court may direct the grand jury to investigate. Had authority to report the results of the grand jury’s inquiry or investigation in these other areas been intended, it would have been a simple matter to so provide. There is simply no basis in the statute for assuming that the legislature intended to empower a grand jury to report the result of its investigation where that result disclosed that there was not sufficient grounds for indictment.

The report filed in this case should be expunged from the record because it is not authorized by law, and because it is a quasi-official accusation of misconduct which movant is precluded from answering in an authoritative forum.

The judgment based on the order overruling movant’s motion is reversed and the case is remanded with directions that the grand jury’s report be expunged from the court’s files and records.

All concur.

      . Movant is the planning director and zoning enforcement officer of the Clay County Planning and Zoning Commission.

      . The report, in pertinent part, is as follows:
      “The investigation revealed that Mr. Stein became aware of the mishandling of funds [in the petty cash account of the Clay County Planning and Zoning Office] and after becoming aware did not take any appropriate action to protect these funds, either through releasing the employee involved or by taking effective action to prevent said employee from having the opportunity to mishandle the funds.”

      . References to the constitution are to the 1945 Constitution of Missouri, as amended, unless otherwise indicated.

      .Article I, § 16, is as follows:
      “That a grand jury shall consist of twelve citizens, any nine of whom concurring may find an indictment or a true bill: provided, that no grand jury shall be convened except upon an order of a judge of a court having the power to try and determine felonies; but when so assembled such grand jury shall have the power to investigate and return indictments for all character and grades of crime; and that the power of grand juries to inquire into the willful misconduct in office of public officers, and to find indictments in connection therewith, shall never be suspended.” (emphasis added).

      . Article XIV, § 11, constitution of 1875, is as follows:
      “It shall be the duty of the grand jury in each county, at least once a year, to investigate the official acts of all officers having charge of public funds, and report the result of their investigation in writing to the court.” (emphasis added).

      . References to sections of statutes are to RSMo 1969.
      Subsection 1 of § 540.020 provides, in part, that a “ * * * grand jury shall have the power to investigate and return indictments for all grades of crimes * *

      . Subsection 2 of § 540.020 is as follows:
      “A grand jury shall be convened at the discretion of a judge of the court having the power to try and determine felonies, to examine public buildings, and report on their conditions; to inquire into violations of the game and fish law, the election laws, the various liquor laws, and such other violations as the court may direct. The grand jury shall make careful inquiry into the failure or refusal of county and municipal officers to do their duty, as provided by law, and the court shall charge each grand jury to make inquiry into any violations by county officers of laws relating to the finances or financial administration of the county.”

      . See: 30 University of Kansas City Law Review 200 (1962-63), “Inquiry Into The Power Of A Missouri Grand Jury,” by the Honorable John W. Oliver, Judge, United States District Court for the Western District of Missouri, and cases referred to therein. See also: Application of United Electrical, Radio & Machine Workers of America, 111 F.Supp. 858, 863 [footnote 12] and 866 [footnote 26] (S.D.N.Y. 1953).

      . See: 1962 Washington University Law Quarterly, pp. 191-207, “Grand Jury Reports — A Safeguard of Democracy,” by Noah Weinstein, Judge, Circuit Court of St. Louis county, and William J. Shaw, First Assistant Prosecuting Attorney, St. Louis county; and, 55 Columbia Law Review 1103 (1955), “The Grand Jury ‘Presentment’: Foul Blow or Fair Play,” by Richard H. Kuh, Assistant District Attorney, New York county, and cases referred to in these law review articles.

      .We note in this connection that this part of the 1875 constitution is the only source relied upon in State ex rel. Lashly v. Wurdeman, supra, as supporting the statement that a grand jury had the power to report the result of its investigation of public officers; no reference is made to the common law as supporting the statement. 187 S.W. at 259.

      .Article I, § 6, Constitution of New York, is as follows:
      “The power of grand juries to inquire into the wilful misconduct in office of public officers, and to find indictments or to direct the filing of informations in connection with such inquiries, shall never be suspended or impaired by law.”

      .Essentially the same explanation was made by a delegate to our 1943-1944 Constitutional Convention in connection with the proposal for adoption of the italicized language in what became § 16 of Article I of the 1945 constitution: “It is only when they are investigating officials that are in power that you are liable to have some official try to pass a law to abolish a grand jury system or to curb their rights of investigation and my thought in this proposition was to fix the Constitution so that no corrupt legislature or governmental power could curb the right of a grand jury to investigate.” See: Debates of the Missouri Constitutional Convention, April 18, 19, 1944, at pp. 1143-1157; 1962 Washington University Law Quarterly at pp. 196-198.


text:
    William L. MILLER, Jr., Appellant, v. Marion E. MILLER, Respondent.
    No. 38097.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 14, 1977.

      Justin C. Cordonnier, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for appellant.
    Claude Hanks, Hanks, Taylor & Sud-darth, Clayton, for respondent.
   PER CURIAM.

Petitioner, husband, appeals from the judgment of dissolution of a marriage of 27 years. The court by its judgment made disposition of property awarding to respondent, wife, the home of the parties, the furniture remaining in the home and one of two automobiles. All other property, marital or separate, was awarded to the husband. The court awarded the wife $45,-000.00 maintenance in gross, the custody of a 13 year old son with the sum of $50.00 per week as support. The court made an award of $6,150.00 as respondent’s attorney fee with one-half to be paid by petitioner. Each of the parties were to pay one-half of the costs.

Petitioner appeals urging that under the Dissolution of Marriage Act, § 452.300-§ 452.415, the court may not make an award of maintenance in gross. Petitioner also contends there was no basis for an award of maintenance under § 452.-335 1(1), (2). He also complains that the award was excessive.

Before discussing petitioner’s contention we consider respondent’s contention that the appeal be dismissed because of the failure of petitioner to comply with Rule 84.04(c). There is some merit to this contention, however, respondent, specifically adopted petitioner’s statement of fact. Under the circumstances we will undertake to rule the case.

The authority of the trial court to award maintenance in gross has most recently been determined in the well reasoned opinion of Judge McMillian, in D.E.W. v. M.W., 552 S.W.2d 280 (Mo.App.1977).

Petitioner argues that because respondent was awarded the family home and because she has the skills and education to work, respondent is not entitled to maintenance. He argues that the house valued at $57,000.00 with an encumbrance outstanding has a net value of $35,000.00. At another point in his brief he gives a value of $30,000.00. However, there is also evidence from which the court could find that the net value was approximately $23,000.00. Petitioner also ignores completely the question of the reasonable needs of the respondent. We find no reference in the brief to the cost of maintenance of her household. Petitioner also ignores the cost of support for the child, and petitioner’s indebtedness.

When it comes to the reasonableness of the amount of the award to respondent, petitioner again makes no reference to respondent’s needs, the standard of living of the parties, petitioner’s income and financial resources, or the petitioner’s ability to meet his needs while providing for respondent.

We have reviewed the transcript on appeal, the exhibits which were filed and the briefs of the parties. We cannot say that the judgment of the trial court was against the weight of the evidence, that it erroneously declares the law or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976).

A detailed breakdown of the fact and figures which were before the trial court, which neither party delineates in their briefs, would be of no precedential value. Rule 84.16(b).

The judgment of the trial court is affirmed.

All Judges concur.

      . “1. In a proceeding for nonretroactive invalidity, dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance
      (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
      (2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.”

      . The petitioner testified he would be willing to pay $400.00 to $450.00 per month for support, which is some evidence of the reasonable needs for the child. The court allowed respondent only $50.00 per week.


author: SMITH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Roland Ross STOER, Defendant-Appellant.
    No. 37702.
    Missouri Court of Appeals, St. Louis District.
    June 14, 1977.
    William J. Shaw, Clayton, William B. Haller, St. Louis, for defendant-appellant.
    Donald A. Purdy, Jr., Asst. Atty. Gen., John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Clayton, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his conviction of two murders in the second degree and the resulting 30 year sentences to be served concurrently. Defendant limits his attack to the instructions.

The evidence indicated and the defendant admitted on the stand that he killed his mother and stepfather with a baseball bat during the course of an argument. There was no evidence to support either justifiable or excusable homicide.

The verdict-directing instructions, six in number, were all MAI-CR. Two instructions (one for each victim) were given for first degree murder, for second degree murder, and for manslaughter.

Defendant’s attack is upon each set of instructions as failing to properly instruct the jury on each of the three grades of homicide. We need not consider defendant’s attack on the first degree murder instruction since he was convicted of second degree murder and may not in that posture attack the instruction on the higher degree crime. State v. Aubuchon, 394 S.W.2d 327 (Mo.1965) [11]; State v. Adams, 497 S.W.2d 147 (Mo.1973) [6]. Further, the Supreme Court has expressly approved MAI-CR 6.02, the first degree murder instruction, in State v. Marston, 479 S.W.2d 481 (Mo.1972).

The Supreme Court has also approved MAI-CR 6.06, the second degree murder instruction, against the same attack leveled here — that it fails to require a finding by the jury of premeditation and malice. State v. Jackson, 496 S.W.2d 1 (Mo.banc 1973) [1]; State v. Graham, 527 S.W.2d 722 (Mo.App.1975) [4].

Defendant’s attack on MAI-CR 6.08, the manslaughter instruction, is that it failed to require a finding that the killing was intentional. MAI-CR 6.08 has been upheld against this attack by this Court in State v. Blockton, 526 S.W.2d 915 (Mo.App. 1975) [8,9]. Additionally, the second degree murder instruction, upon which the jury convicted defendant, clearly required a finding the killings were intentional. This fact question was decided by the jury against defendant and there could be no prejudice to defendant if his attack on 6.08 were meritorious.

Judgment Affirmed.

McMillian, p. j., and stewart, j., concur.


author: MeMILLIAN, Judge.

text:
    Hope H. FARNSWORTH, Appellant, v. Nile W. FARNSWORTH, Respondent.
    No. 37989.
    Missouri Court of Appeals, St. Louis District.
    June 14, 1977.

      Wiley, Craig, Armbruster, Wilburn & Mills, Earl B. Wilburn, St. Louis, for appellant.
    Tremayne, Lay, Carr & Bauer, Bertram W. Tremayne, Jr., Clayton, for respondent.
   MeMILLIAN, Judge.

Upon respondent’s motion for modification of maintenance, the circuit court reduced the maintenance award from $975.00 per month to $200.00 per month. The wife appeals contending that the court’s order was an abuse of discretion. We agree and remand cause with directions as contained herein.

A decree of divorce was granted the parties on May 21, 1970. Pursuant to that decree, the court ordered respondent to pay appellant $850.00 per month as alimony (now maintenance) plus $150.00 per month per child as child support for the parties’ two minor children. Respondent’s annual adjusted gross income at that time was $38,165.00.

On March 19, 1973, by agreement of the parties, the court increased the maintenance allowance to $975.00 per month. At that time respondent’s adjusted gross income was $75,778.00. Respondent had remarried and had a child of that marriage. In addition, the two children of respondent’s second wife reside with them.

On October 25,1974, the respondent filed a motion to reduce maintenance. Contemporaneously, respondent unilaterally, without prior court approval, reduced maintenance payments to $400 per month. On February 10, 1976, the court rendered the decision from which this appeal arises. Since the 1973 modification, respondent has changed jobs and he now estimates his annual salary at $35,000.00. He also receives the use of an automobile as part of his compensation. A second child has been born of his second marriage. He has been relieved of half of the total $300.00 per month child support payment to his first wife on account of the emancipation of their eldest child. Appellant now works, earning a gross monthly salary of $500.00. Her monthly take home pay is $386.00.

The income and expense statements of the parties which were introduced into evidence reveal the following facts. Appellant’s monthly expenses for herself and one child total $1071.00. Her gross income from wages, child support, other income, and $200.00 maintenance totals $904.05. Thus, under the circuit court’s order appellant’s expenses exceed her income by $166.95 per month or $2,003.40 per year. By the provisions of the 1973 modification appellant received a total monthly income of $1119.05, which amounts to $48.00 more than her expenses. On the other hand, respondent’s monthly expenses, excluding his maintenance payments, are reported at $2090.00. He reports monthly income of $2,692.32, thus he has an excess income of $602.32 per month from which maintenance can be paid.

Appellant initially alleges error in the trial court’s treatment of the facts of respondent’s remarriage and his fathering of additional children as changed circumstances such as would justify a modification of the maintenance award. She contends that consideration of such unilateral acts of the respondent as changed circumstances amounts to an abuse of discretion. This claim is contrary to well established Missouri law. It is generally held that although remarriage alone is not sufficient grounds for decreasing maintenance, but where children are born of that marriage it will be considered as one factor, Markham v. Markham, 506 S.W.2d 84 (Mo.App.1974); Clisham v. Clisham, 485 S.W.2d 660 (Mo.App.1972) and Jourdan v. Jourdan, 251 S.W.2d 380 (Mo.App.1952). We see no reason to depart from the rule at this juncture.

Appellant further claims that the sheer magnitude of the monetary reduction is in itself evidence of an abuse of discretion. The court will adjust an award where “the amount awarded is so excessive or inadequate as to appear to be an abuse of judicial discretion. . . Harriman v. Harriman, 281 S.W.2d 566 (Mo.App.1955). An award of 90% of the respondent’s net worth was held an abuse of discretion in Swanson v. Swanson, 464 S.W.2d 225 (Mo.1971). The elimination of alimony, leaving the wife with insufficient income to maintain herself and the children in the manner to which they were accustomed was held an abuse of discretion in Landreth v. Landreth, 326 S.W.2d 128 (Mo.App.1959). In determining the reasonableness of the award, courts balance the husband’s ability to pay against the wife’s reasonable needs, Larison v. Larison, 524 S.W.2d 159 (Mo.App.1975); Richardson v. Richardson, 524 S.W.2d 149 (Mo.App.1975); Palmer v. Palmer, 467 S.W.2d 303 (Mo.App.1971) and Brosam v. Brosam, 437 S.W.2d 694 (Mo.App.1969).

Neither party in the case at bar contests the income and expense statements of the other, nor is there evidence that either party concealed any assets. The circuit court’s award works an extreme financial hardship on the appellant. With her present expenses she would be over $2,000 in debt every year. Her only recourse would be to downgrade her lifestyle from the manner to which she was accustomed. At the same time even after a halving of his salary and the birth of another child, her former husband has an excess income of more than $600 each month from which he could contribute to her support. Although appellant now takes home $386 a month from her job, she has lost $775 in maintenance as a result of respondent’s decreased income and the birth of one additional child. Under these circumstances, we find that the amount awarded appellant was so inadequate as to be an abuse of discretion. We cannot find any logical or legal justification for the drastic reduction to $200 a month. Consequently, the cause is remanded to the trial court with directions to set aside its award of maintenance and to enter an award of $375.00 per month as of the date of the final judgment from which this appeal was taken, and as amended, the judgment is affirmed.

STEWART and REINHARD, JJ., concur.

      . In passing, we note an issue that was argued but not briefed. The question argued is whether the date of the change of circumstances used as the basis for a modification where there had been a prior modification is to be the date of the original decree or the date of the last prior modification. In our view, although a modification is ancillary to the original decree, yet it is an independent action. Hence, the date of the change of circumstances to be used would be the last prior modification rather than the circumstances existing on the date of the original decree.


author: DOWD, Judge.

text:
    Maria Johanna HUTCHERSON, Petitioner-Appellant, v. Harry Lee HUTCHERSON, Respondent.
    No. 38057.
    Missouri Court of Appeals, St. Louis District.
    June 14, 1977.

      Richard B. Dempsey, St. Louis, for petitioner-appellant.
    Stephen D. Smith, St. Louis, for respondent.
   DOWD, Judge.

Appellant, Maria Hutcherson, appeals from the modification of a 1972 divorce decree. The modification reduced Harry Hutcherson’s spousal support obligation from $150.00 per month to zero and reduced respondent’s child support obligation from $175.00 per month for each of the parties’ two children to $15.00 per week per child.

At the time the divorce decree was entered, appellant was not employed, and respondent was earning $20,000.00 per year as an “advertising and P.R. man” at C. V. Mosby Company. Following the divorce, appellant obtained employment; and, at the time of the hearing on the motion to modify, she was planning to start a new job on April 1, 1976 learning bookkeeping at a salary of $700.00 per month.

Respondent, on the other hand, had not been employed for over one and one half years at the time the motion for modification was heard. He testified he had attempted to find employment and was listed at two employment agencies. He had done some free lance writing, photography, printing, and public relations work while he searched for a job but found that his expenses were greater than his gross income from such work. In order to meet his living expenses of $200 to $300 per month, respondent was consuming his savings. He had approximately $2800.00 left in his savings account at the time of the hearing.

On appeal, appellant contends the trial court erred in reducing respondent’s spousal and child support obligations because the evidence showed respondent was not using his best efforts to gain employment and squandered what funds he had on his own luxuries rather than paying support, because the amount of reduction was excessive, and because there were no findings or evidence of a substantial and continuing change of circumstances.

We have examined the transcript, briefs, and authorities cited and affirm the judgment of the trial court. The trial court’s order modifying the respondent’s spousal and child support obligations is supported by substantial evidence and is not against the weight of the evidence. The trial court’s order neither erroneously declares nor applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Giving deference to the trial court’s ability to judge the credibility of the witnesses, substantial evidence before the trial court showed a “substantial and continuing” change of circumstances such as to make the terms of the original decree unreasonable. § 452.370 RSMo 1973. Reduction of support awards is justified if the party owing support can show involuntary financial reverses or unemployment causing severe financial difficulty. Brown v. Brown, 537 S.W.2d 434, 438-37 (Mo.App.1976); Foster v. Foster, 537 S.W.2d 833, 836[4] (Mo.App.1976).

The judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


text:
    In re The MARRIAGE of Ruth Geraldine FOUTS, Appellant, and Cordell George Fouts, Respondent.
    No. 38268.
    Missouri Court of Appeals, St. Louis District.
    June 14, 1977.

      James L. Anding, Pacific, for appellant.
    Joel W. Case, Manchester, for respondent.
   DOWD, Judge.

Appellant-mother appeals from the trial court’s order changing child custody to the respondent-father.

In brief, the facts are that the parties were divorced on July 10, 1972. The respondent did not appear in the divorce proceeding initiated by the appellant. The divorce decree awarded custody of the parties’ children, Gary Wade Fouts and Alice Lynn Fouts, ages 8 and 2 at the time of the divorce, to the appellant.

On March 31, 1976 respondent filed a petition to modify the divorce decree based on a change of circumstances.

At the trial the evidence showed that the minor children were in the actual custody of respondent at the time of the divorce and that appellant permitted the children to remain with respondent for three years following the divorce. During this three year period the wife would have temporary custody of the children.

Each party introduced evidence reflecting the social habits of the other. Both parties were accused of sexual misconduct and periodic drinking. There was substantial evidence that the respondent was a good cook, housekeeper and parent. The testimony included the parties’ son, Gary Wade Fouts, who expressed a strong desire to live with the respondent.

At the conclusion of the testimony, the trial court granted the petition for a change in custody. The respondent was awarded primary custody of the parties’ two children, and the appellant received visitation rights. Appellant filed a timely notice of appeal.

Appellant raises one issue on appeal. Appellant contends the evidence did not show a change of circumstances.

We have read the transcript, the briefs, and the authorities cited therein and have concluded that the order changing custody of the parties’ children to the respondent is supported by substantial evidence and is not against the weight of the evidence. We further conclude that the order does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

We further believe that an opinion would have no precedential value and therefore affirm in accordance with Rule 84.16(b).

The judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


text:
    Howard M. ACKERMAN and Barbara F. Ackerman, his wife, et al., Plaintiffs-Appellants, v. CITY OF CREVE COEUR, a Municipal Corporation, et al., Defendants-Respondents.
    No. 38005.
    Missouri Court of Appeals, St. Louis District.
    June 14, 1977.
    James P. Finnegan, Jr., St. Louis, for plaintiffs-appellants.
    Merle L. Silverstein, St. Louis, J. Leonard Walther, Clayton, for defendants-respondents.
   DOWD, Judge.

In this action plaintiffs, residents of Runnymede subdivision in the City of Creve Coeur on their own behalf and as representatives of the other residents of the subdivision as a class, sought a declaration that § 9G.4.B of the zoning ordinance of Creve Coeur does not permit an access road across a required rear yard adjacent to the subdivision, and an order restraining the defendant Planning and Zoning Commission from approving the road and the defendant Roy-alway Development Co. from constructing it. The Circuit Court of St. Louis County found in favor of defendants. We remand, with instructions to dismiss the petition.

On April 13, 1959, the comprehensive Zoning Ordinance of the City of Creve Co-eur, Ordinance No. 225, became effective. On October 26, 1970, Ordinance No. 556 amended the comprehensive ordinance by establishing the “0” Central Core Business District.

Preliminary plans for the development of the Creve Coeur Estates Condominium Project, later renamed Coeur de Royale Condominiums, on a lot in the “0” district, were presented to the Creve Coeur Planning and Zoning Commission, which recommended their approval on May 8, 1973. At subsequent meetings of the commission throughout the remainder of the year, revised preliminary plans were submitted. Members of the subdivision, which lies directly south of the lot to be developed, appeared on occasion to express concern that the rear access road planned for the condominium project would funnel traffic onto Magna Carta Drive, which runs through the subdivision.

The rear of the condominium project lot lies adjacent to a small portion of the subdivision’s northern border. Magna Carta Drive, beginning at an intersection with Balias Road, runs east, for a short distance along the northern border of the subdivision and half of the southern border of the condominium lot. At that point, Magna Carta enters the subdivision, turning southeast and running in that direction to the southern entrance of the subdivision at Ladue Road, where it ends. The other half of the condominium lot’s southern border coincides with a portion of the subdivision’s northern border.

The instant suit was filed on February 16, 1974, seeking declaratory and coercive relief. Plaintiffs alleged that the rear yard requirement of that portion of the zoning ordinance regulating the “0” Central Core Business District, prohibited the building of an access road onto Magna Carta Drive. The section states:

“§ 9G4.B. Side and rear yards — no direct limit, except where a lot line coincides with a lot line in an adjacent residence district, then such yard should be landscaped on the residential side with natural plantings and/or a six (6) foot high solid wall or fence provided, as reviewed and approved by the Planning and Zoning Commission. Side and rear yards to fifty (50) feet shall be maintained when adjacent to a residential district; there shall be no automobile parking in this area.”

Defendant developer filed a motion to dismiss on March 6, 1974, alleging, inter alia, plaintiffs’ failure to exhaust their administrative remedies under Chapter 536, RSMo. The motion was overruled on October 14, 1974.

At the Planning and Zoning Commission’s regular meeting on April 15, 1974, final plans for the condominium project were examined, and unanimous approval was given for the issuance of a building permit. Since the issue of the access road’s legality under the ordinances was pending, its construction was not begun.

Trial began on January 21, 1976, and on February 10, 1976, the court entered its order in favor of defendants, finding that plaintiffs were not entitled to any injunc-tive relief, that the Planning and Zoning Commission had the power to approve defendants’ plans, and that the ordinance in question does not prohibit the proposed access road. Plaintiffs bring this appeal.

At the outset we are bound to examine the procedural route followed by this case. Compliance with the statutory procedure designed for cases of this nature is a jurisdictional matter, and we must determine jurisdiction prior to any discussion of the substantive issue raised. Randles v. Schaffner, 485 S.W.2d 1, 2 (Mo.1972); Lafayette Federal Savings and Loan Assn, of Greater St. Louis v. Koontz, 516 S.W.2d 502, 504 (Mo.App.1974); American Hog Company v. County of Clinton, 495 S.W.2d 123, 125 (Mo.App.1973). Finding that the plaintiffs have not so complied, we must conclude that the proceedings before the trial court lacked jurisdiction and are therefore void. Randles, supra at 2; Brogoto v. Wiggins, 458 S.W.2d 317, 319 (Mo.1970); Lafayette, supra at 504.

Section 536.050 RSMo 1969 provides that courts may render declaratory judgments “respecting the validity of rules, or of threatened applications thereof, and [that] such suits may be maintained against agencies whether or not the plaintiff has first requested the agency to pass upon the question presented.” This remedy is not available to plaintiffs, since their action is not directed against a “rule” as defined in Rule 100, American Hog, supra at 126, and since the provisions of Chapter 536 and its corresponding Rule 100 are not applicable to agencies whose own separate review procedures are provided in other statutes. American Hog, supra at 126-27. See Brogoto, supra at 319; Cohen v. Ennis, 314 S.W.2d 239, 244 (Mo.App.1958).

Plaintiff in American Hog was advised by the county Planning Commission that its livestock confinement feeding operation was in violation of a county ordinance, and that plaintiff must bring its operation into conformance. Instead of appealing the ruling to the County Board of Zoning Adjustment as directed by § 64.660, a planning and zoning statute applicable to class two and three counties, plaintiff brought a declaratory judgment action seeking a determination that its operation was acceptable as a nonconforming use. The issue was found against plaintiff, and he appealed. The reviewing court held first that, while § 536.050 authorizes declaratory judgment actions respecting the validity of an administrative rule or its threatened application, plaintiff’s action was not directed against a “rule”, defined in § 536.010 as one “of general application and future effect”. Plaintiff’s controversy with the county agency was properly designated a stage of a “contested case” as defined in § 536.010. The procedure available to plaintiff would have been that described in § 536.100 and Rule 100.03, for review of contested cases, except that § 64.660, providing for comparable review in plaintiff’s specific case, was applicable. The Court held further that plaintiff’s action was not authorized under the Declaratory Judgment Act, § 527.020, since the declaratory judgment procedure could not be used where a specific statutory method of review is provided. The court quoted 26 C.J.S. Declaratory Judgments § 20, which states:

“As a general rule where a statute provides a special form of remedy for a specific type of case, the statutory remedy must be followed, and under such circumstances a declaratory judgment will not be granted.”

The case was remanded with instructions to dismiss the plaintiff’s petition.

American Hog, supra, applies here. First, plaintiffs’ action was not directed against a “rule” as it is defined. For its definition we are directed by Rule 41.02 to consult Rule 100.01, which states:

“(2) ‘Agency Rule’ includes every regulation, standard, or statement of policy or interpretation of general application and future effect, including the amendment or repeal thereof, adopted by an agency, whether with or without prior hearing, to implement or make specific the law enforced or administered by it or to govern its organization or procedure, but does not include regulations concerning only the internal management of the agency and not directly affecting the legal rights or privileges of, or procedures available to the public.” (emphasis added).

Plaintiffs in this case are not challenging the validity or threatened application of a rule of general application and future effect, but a decision respecting a specific set of facts and effective only as to those facts.

Secondly, a specific statutory procedure was available to plaintiffs. Chapter 89 concerns itself specifically with zoning and planning in all cities, towns and villages of the state, § 89.010, and thus provides the procedural framework within which plaintiffs may act. Pertinent portions of this chapter relating to a Board of Adjustment are included in the Creve Coeur Comprehensive Zoning Ordinance, Article 21, and provide for an appeal from the decision of the Planning and Zoning Commission to the Board of Adjustment, § 89.100 and Section 21.3(a) to (c) and from the decision of the Board of Adjustment to Circuit Court, § 89.110 and Section 21.6. Declaratory judgments are not provided for in the statutory scheme of Chapter 89.

Plaintiffs argue that the holding in Evans v. Roth, 356 Mo. 237, 201 S.W.2d 357 (banc 1947) authorizes their action. In that case, however, the pertinent statute and ordinance did not provide an adequate procedure by which plaintiffs could file a complaint with a building inspector or cause him to carry on an inspection which would have revealed an illegal use of property. Plaintiffs were therefore granted the injunction they sought. The court made clear, however, that “if the plaintiffs had an adequate statutory remedy, the procedure prescribed therefor would be exclusive.” 201 S.W.2d at 360.

Thus plaintiffs’ proper course was to await the Planning and Zoning Commission’s final approval of the developer’s plans, which came two months after this suit was filed, and then appeal the decision to the Board of Adjustment. Such an appeal would have halted all proceedings on the access road, § 89.100 and Section 21.3(6), until final disposition of the issue of its legality under the ordinance. Since plaintiffs failed to follow the appropriate statutory procedure, we find ourselves and the court below without jurisdiction to decide the issue.

This cause is remanded with instructions to dismiss plaintiffs’ petition.

CLEMENS, P. J., and SMITH, J., concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Respondent, v. Danny CHOATE, Appellant.
    No. 37953.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 21, 1977.

      Richard E. Snider, Cape Girardeau, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, Bradshaw Smith, William L.
    Syler, Asst. Pros. Atty., Cape Girardeau, for respondent.
   NORWIN D. HOUSER, Special Judge.

This is an appeal from a judgment finding Danny Choate guilty of burglary, second degree, § 560.070, and assault with intent to do great bodily harm without malice, § 559.190, and sentencing him to two consecutive 5-year terms, following trial by jury.

Appellant’s first point is that Instructions Nos. 8 and 9 are repetitious, conflicting, misleading and prejudicial. Instruction No. 8 properly directed the jury to find defendant guilty of assault upon a finding of the two stated essential elements of the offense. Instruction No. 9, intended as a converse instruction identical with MAI-CR 3.06, erroneously omitted the words “do not” following the words “As to Count II, if you * * Thus Instructions Nos. 8 and 9 gave the jury diametrically opposite directions upon a finding of precisely the same facts. In this situation we held in State v. Grothe, 540 S.W.2d 221 (Mo. App. 1976), that this error did not require reversal of the judgment of convic tion; that the omission of the negative worked in favor of the defendant. On che authority of and for the reasons stated in State v. Grothe appellant’s point that he was prejudiced by the conflict between Instructions Nos. 8 and 9 is ruled against him.

Appellant further claims that because Instruction No. 9 failed to negative the elements of the offense he was deprived of a converse instruction to Count II, to which he was entitled, having requested same. The record does not show that appellant made such a request, and in the absence of a record in the matter there is nothing for a reviewing court to decide. Jackson v. State, 514 S.W.2d 532, 533-534 (Mo.1974). In any event, appellant had the benefit of a converse instruction to Count II, to wit, the last paragraph of Instruction No. 8.

Finally, appellant attacks the general language of the last paragraph of Instruction No. 8, and the similar conversing language in the last paragraph of Instruction No. 6, which is the verdict director on the charge of burglary. Conceding that he finds no case authority to support his argument appellant contends as an elementary and fundamental proposition of law that a defendant “must be acquitted even though the jury may find against him on one or more, so long' as it is less than all, of the essential elements of the crime charged.” As alternatives to Instructions Nos. 6 and 8 appellant offered Instructions A and B, verdict directors which concluded with a conversing paragraph directing not guilty verdicts upon a failure to find any one or either one of the elements of the offense postulated in the main body of the instruction.

The general converse paragraph in given Instruction No. 6 is verbatim MAI-CR 7.32. The general converse paragraph in given Instruction No. 8 is verbatim MAI-CR 6.24. The short and conclusive answer to appellant’s last point is that the trial court had no alternative. The forms utilized by the trial court were forms prescribed by the Supreme Court, which has superintending control over all inferior courts. Art. V, § 4(1), Mo.Const. 1945. It was obligatory on the trial court under Rule 20.02(c) to give the verdict directors in the forms found in MAI-CR, and it is our duty on appeal to uphold the action of the trial court in following the dictates of MAI-CR.

Judgment affirmed.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.

      . All section citations refer to RSMo 1969.

      . Instruction No. 8: “As to Count II, if you find and believe from the evidence beyond a reasonable doubt;
      “First, that on or about the 17th day of June, in the County of Cape Girardeau, State of Missouri, the defendant shot a loaded gun at Wm. W. Stover, and
      “Second, that he did so with the intent to do great bodily harm to one William W. Stover, then
      you will find the defendant guilty under Count II of Assault With Intent to do Great Bodily Harm without Malice Aforethought.
      “However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty under Count II of that offense.”

      .Instruction No. 9: “As to Count II, if you find and believe from the evidence beyond a reasonable doubt each and all of the following:
      “FIRST, that on or about the 17th day of June, 1975, in the County of Cape Girardeau, State of Missouri, the Defendant shot at William W. Stover, and
      “SECOND, that Defendant did so with intent to do great bodily harm to William W. Stover, then you must find the Defendant not guilty, under Count II of Assault with intent to do great bodily harm without malice aforethought.”

      . “However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.”

      . “Whenever there is an MAI-CR instruction or verdict form applicable under the law to the facts, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other on the same subject.”


author: WEIER, Judge.

text:
    Julius ROBINSON, Plaintiff-Appellant, v. LACLEDE GAS COMPANY, Defendant-Respondent.
    No. 38105.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 21, 1977.

      Theodore F. Schwartz, Clayton, for plaintiff-appellant.
    Alan C. Kohn, St. Louis, for defendant-respondent.
   WEIER, Judge.

This is a suit for damages for personal injuries and destruction of personal property. Plaintiff appeals from the judgment of the trial court directing a verdict for defendant at the close of plaintiff’s evidence.

The statement of facts consumes twenty-nine (29) pages in plaintiff’s brief on appeal. Pages three (3) through twenty-seven (27) of the brief are a verbatim reproduction of some of the questions and answers of witnesses in the trial of the case. At the conclusion of this recital of the testimony is a copy of plaintiff’s petition for damages which occupies the remaining five (5) pages. Nowhere in the brief is there “a fair and concise statement of the facts” as required by Rule 84.04(c). Such failure warrants dismissal of an appeal. State v. Schulten, 529 S.W.2d 432, 434[1] (Mo.App.1975).

The point relied on is error in the action of the court in directing a verdict at the close of the evidence. The reason given in this point is “that plaintiff’s evidence was sufficient, as a matter of law, to make a submissible case for the jury’s consideration.” This does not satisfy the requirements of Rule 84.04(d) that points relied on set out briefly and concisely wherein and why the ruling of the court sought to be reviewed is erroneous. The erroneous ruling is described but the description as to why it is erroneous is abstract, in that it merely states the evidence is sufficient to make a submissible case. Here appellant needs to state his theory of liability and set out concisely a brief summary of the evidence that supports it. This may be done in outline form. As a court, we are not required to search the record to determine whether or not there was sufficient evidence to submit the case to the jury. Barber v. M. F. A. Milling Company, 536 S.W.2d 208, 211[13] (Mo.App.1976).

A reading of the argument in the brief reveals only two references to the transcript. One concerns the complaint of plaintiff transmitted to defendant concerning the odor of gas. The other refers to an interrogatory and its answer. Although plaintiff’s claim of error succeeds only if he mustered sufficient evidence to make a sub-missible case on any of his theories of liability, he fails to substantiate his alleged proof by references to the pages of the transcript that support his theories of liability. This is a critical violation of Rule 84.04(h). Ward v. Johnson, 480 S.W.2d 104, 107[8] (Mo.App.1972).

The appeal is dismissed for failure to comply with Rule 84.04 in the above particulars.

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


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Anthony T. HALL, Appellant.
    No. 38118.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 21, 1977.
    William W. Brown, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., William M. Frain, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

On unchallenged evidence a jury found defendant guilty of tampering with a motor vehicle and he was sentenced to a year’s imprisonment. He appeals, contending the trial court improperly denied his motion for new trial because of the state’s allegedly improper closing argument. Defendant had not objected to the argument at trial.

The sufficiency of the state’s evidence is unchallenged. In closing argument state’s counsel obtusely referred to defendant’s failure to call family members to support his “innocent bystander” testimony, and referred to a defense witness as being on welfare. As said, defense counsel did not object or request corrective action. In context, the argument is not inflammatory.

We have reviewed the record in light of the plain error rule (Rule 27.20(c), VAMR) and find neither manifest injustice nor a miscarriage of justice.

Judgment affirmed.

DOWD and SMITH, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Farrell SHEPHERD, Appellant.
    No. 37546.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 21, 1977.
    Robert Babione, Public Defender, Mary Louise Moran, Henry J. Rieke, Asst. Public Defenders, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant Farrell Shepherd guilty of statutory rape and the trial court sentenced him, as a second offender, to 35 years’ imprisonment. He appeals, raising a single point: error in denying his voir dire challenge for cause against a venireman who believed defendant should testify.

On voir dire, defense counsel asked whether anyone felt defendant should be required to testify and whether anyone would hold it against him if he chose to remain silent. Venireman Molkenbur answered, “I think he should be on the witness stand. I personally feel they should be on the stand.” Defense counsel moved to strike the venireman for cause but the court denied the motion: “I think we need more evidence on the record to disqualify . the record is not clear that she would hold it against him and not be able to give him fair trial.” On further defense inquiry, Mrs. Molkenbur stated she had “misunderstood” the question of defense counsel-and that she had once been required to testify as a defendant in a civil case. After defense counsel explained that an accused does not have to testify, Mrs. Molk-enbur answered that she was “quite positive” she would not “hold it against” the defendant if he did not testify. Further questioning revealed she understood the difference between a civil and criminal case and would follow the court’s instructions as to the accused’s right to remain silent. The court then denied defendant’s motion to strike.

Defendant argues that Mrs. Molkenbur exhibited prejudice against him when she initially responded she felt he should testify in his own behalf. Defense counsel repeatedly asked if Mrs. Molkenbur would “hold it against” defendant if he did not testify and each time she failed to respond affirmatively. Her reasons for initially stating she felt the defendant should testify was because she “misunderstood” the question and because she had once been required to testify as a defendant in a civil action. Upon defense counsel’s explanation that an accused does not have to testify, Mrs. Molk-enbur responded that she was “quite positive” about her ability to judge the case fairly and impartially.

Defendant’s sole challenge is based on Mrs. Molkenbur’s initial response that she felt defendant should testify. But further questioning showed she would not be prejudiced by defendant’s failure' to testify and would follow the court’s instructions as to defendant’s right to remain silent. We assess Mrs. Molkenbur’s qualifications not on the first isolated response but on the examination as a whole. State v. McGrew, 534 S.W.2d 549[5, 6] (Mo.App.1976).

So considering the record, we assess the trial court’s ruling in light of the admonition given in State v. Harris, 425 S.W.2d 148[8] (Mo.1968): “Determination by the trial judge of the qualifications of a venireman necessarily involves a judgment based on an observation of the demeanor of the venireman, and in light of that observation, an evaluation and interpretation of his answers as they relate to whether [or not] he would be fair and impartial if chosen as a juror. The trial judge is in a far better position to make that determination than we are from the cold record.”

The trial court did not abuse its discretion in failing to strike the prospective juror.

Judgment affirmed.

DOWD and SMITH, JJ., concur.


text:
    John W. JOHNSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38252.
    Missouri Court of Appeals, St. Louis District.
    June 21, 1977.
    William J. Shaw, Public Defender, Richard L. Rodemyer, Asst. Public Defender, Clayton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

Movant’s Rule 27.26 motion was denied by the trial court without an evidentiary hearing and he has appealed.

Movant had been found guilty of possessing heroin and sentenced to five years’ imprisonment. We affirmed the conviction in State v. Johnson, 529 S.W.2d 658 (Mo.App.1975). Thereafter movant filed his “post-conviction motion to vacate the judgment of conviction and sentence.”

We limit our review to deciding whether the trial court’s order is clearly erroneous. Rule 27.26(j).

The only ground in movant’s motion challenges the original search and seizure of his briefcase. In McCrary v. State, 529 S.W.2d 467[3] (Mo.App.1975) we ruled that “a claim of illegal search is not cognizable in 27.26 proceedings.” Further, this point was adjudicated on appeal and cannot be reconsidered in a post-conviction proceeding. Cochran v. State, 545 S.W.2d 710[1] (Mo.App.1975).

The state’s motion to retax costs is denied.

Judgment affirmed.

DOWD and SMITH, JJ., concur.