author: ALBERT L. RENDLEN, Special Judge. McMILLIAN, Presiding Judge,

text:
    STATE of Missouri, Respondent, v. Walter SCOTT, a/k/a Willie Roy Jones, Appellant.
    No. 37218.
    Missouri Court of Appeals, St. Louis District.
    Nov. 15, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 18, 1978.

      Robert C. Babione, Public Defender, Joseph W. Warzycki, Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Preston Dean, Jefferson City, J. Brendan Ryan, Terrence J. O’Toole, St. Louis, for respondent.
   ALBERT L. RENDLEN, Special Judge.

Walter Scott appeals his conviction of attempted burglary second degree and sentence by the court under the Second Offender Act to five years imprisonment.

Defendant contends on appeal: (1) the court erred in overruling appellant’s objection to a statement by the prosecutor during voir dire examination outlining appellant’s right not to testify; and (2) error in overruling appellant’s objection to testimony by the arresting officers that a car parked at the scene had its ignition on, as it raised an inflammatory inference that it was a “getaway car”.

The facts are simple. On December 29, 1974, at about 3:00 a. m., two St. Louis police officers, responding to a radio report of prowlers attempting entry, observed defendant in the process of prying open a door of the Sorrento Lounge with a crow bar. His companion, Louis Hall, assisted by holding a flashlight to illuminate the work at hand. Defendant and his cohort (who also had a screwdriver) were arrested flagrante delicto.

During voir dire of the venire the prosecutor made the following statement and asked the following question:

“You are all aware of the Fifth Amendment to our constitution that a person has a right, and [sic] absolute right not to testify, and as a result of electing to use that right, his decision to do so you may not make any assumption based on that. You may not draw any unfavorable conclusions as to what were the causes of a man choosing not to testify. Is there anyone who doesn’t understand or who can’t agree with that[?]”

Objecting out of the jury’s hearing, defendant complained the statement constituted a comment on his failure to testify. The trial court, overruling the objection, indicated the statement was not a comment on the failure to testify when made at that stage of the proceeding and the court did not perceive any prejudicial effect. The prosecutor did not pursue that line of questioning.

Section 546.270, RSMo 1969, YAMS, and Supreme Court Rule 26.08 forbid the state to comment on a defendant’s failure to testify. The purpose of this Rule, to avoid drawing the jury’s attention to a defendant’s exercise of his right not to testify, can only be served if the state refrains from mention of the right. However, in this case the prosecutor’s statement was not a comment on the defendant’s failure to testify as condemned in State v. McNeal, 517 S.W.2d 187 (Mo.App.1974). Clearly, there was no direct and certain reference to defendant’s failure to testify as denounced and proscribed in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, rehearing den. 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730 (1967). See also State v. McNeal, supra at 188[1], and State v. Gray, 503 S.W.2d 457 (Mo.App.1973). The prosecutor’s statement was simply a general statement of the law concerning an accused’s Fifth Amendment rights. We find that the court’s ruling on the objection to the statement during voir dire was not an abuse of discretion constituting prejudicial error warranting mistrial. Though our courts are properly critical of prosecutorial comment on the assertion by a defendant of his Fifth Amendment rights, the language here was not manifestly intended nor of such character that it could be said to have constituted a reference to defendant’s failure to testify. State v. Wilborn, 525 S.W.2d 87 (Mo.App.1975).

In addition, defendant effectively waived his prior objection to the statement made to the venire. The voir dire was extensive, filling forty-six transcript pages and the prosecutorial statement to which defendant objected occurred early in the state’s inquiry to the array. At the conclusion of the state’s interrogation, defense counsel questioned the venire at length and on completion of that examination but prior to making the preemptory strikes, he turned to the court and stated, “Your Hon- or, this panel is acceptable to the defendant.” This effectively waived defendant’s prior objection to the “offending” question and statement of the prosecutor. The announcement of defense counsel, made in the presence of the jury was unsolicited and could not be construed as coerced or forced by any question from the bench. It is clearly within the viable ambit of State v. Turn-bough, 498 S.W.2d 567, 570[1] (Mo.1973), even as the holding in that case has been construed and narrowed by State v. Brown, 547 S.W.2d 797 (Mo. banc 1977). Defense counsel’s gratuitous comment to the court in the presence of the array could only have been intended to intentionally waive his previously overruled objection and to impress the listening prospective jurors of his approval of them as the panel from which the jury of twelve could be selected. Under the facts here, defendant may not expressly accept a panel, proceed to trial and then, only after an adverse verdict, complain of prejudice in voir dire. The point is denied.

Defendant next contends the trial court erred in overruling his objection to testimony by the arresting officer that he examined an automobile parked near the scene and found it unlocked with the ignition on but the motor off. Out of the jury’s hearing the prosecutor argued materiality of these facts as tending to show “the means and the preparations.” No testimony was offered to connect defendant to the car (it had been stolen), but the court permitted the testimony as part of the res gestae.

Without evidence to tie the car to defendant, the materiality of this testimony was at best tenuous. However, we are unable to see how defendant was prejudiced. “The admission in evidence of facts immaterial or irrelevant to the issues and without probative force cannot constitute prejudicial or reversible error. Irrelevant or immaterial evidence is excluded not because it is inflammatory or prejudicial, but because its admission has a tendency to draw the jury’s attention away from the issues it has been called on to resolve.” State v. Walden, 490 S.W.2d 391, 393[3] (Mo.App.1973); State v. Kerr, 531 S.W.2d 536, 543[16] (Mo.App.1975). Defendant argues the jury would infer the car was a “getaway car” and thus be prejudiced. This merits little discussion.

A car is not automatically a getaway car. The jury could only arrive at this inference after concluding appellant was engaged in some illegal act requiring a “getaway car”. We are mindful that this is not a typical circumstantial evidence case, the direct evidence with only minimal reliance on the reasonable inferences pointed to guilt. Testimony concerning the automobile may be described as inconsequential, if there was error in its admission no prejudice resulted.

Judgment affirmed.

McMILLIAN, P. J., dissents in separate opinion.

STEWART, J., concurs.

McMILLIAN, Presiding Judge,

dissenting.

I respectfully dissent. As our supreme court has said on numerous occasions, we must assume that jurors are possessed of normal intelligence. Consequently, those veniremen that were ultimately selected to hear the case obviously knew that a person, in this case the defendant, had the right not to testify. This because they had been informed by the prosecutor, with the court’s tacit approval, on the voir dire examination that such was the case. While it is true that the prosecutor did not say defendant in so many words, yet, he did say “person,” and defendant was the only person then being tried. Moreover, I reject the notion of the majority that the statement in question made by the prosecutor gained in respectability simply because (1) it was made preliminary to the trial proper; or (2) that it was simply a general statement of the law concerning an accused’s Fifth Amendment right.

Additionally, I find that the majority’s reliance upon State v. Turnbough, 498 S.W.2d 567, 570[1] (Mo.1973) is not only misplaced but also is an abortive attempt to find a waiver, contrary to what was decided in State v. Brown, 547 S.W.2d 797, 805 (Mo. banc 1976). In fact, the court’s reliance upon Turnbough is in direct conflict with the holding in the Brown case.

For the reasons given above, I would reverse the judgment and remand the cause for a new trial.

      . In State v. McNeal, supra at 188, the prosecutor during closing argument made use of the critical words, “[the] defendant himself elected not to testify,” after noting that the defendant had chosen not to take the stand.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    John Bell BROWN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39244.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 20, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 18, 1978.

      David V. Uthoff, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Carson El-liff, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

Movant John Bell Brown (hereafter Defendant) has appealed denial of his Rule 27.26 motion. We affirm.

In 1971 defendant was convicted of armed robbery and after a finding of seven previous felonies the court sentenced him to 25 years’ imprisonment. Judgment was affirmed on appeal. State v. Brown, 480 S.W.2d 843 (Mo.1972).

Defendant seeks to set aside his conviction by his present Rule 27.26 motion, contending he was deprived of effective assistance of counsel. He faults his court-appointed counsel for inadequate consultation, his failure to produce alibi witnesses and depose the victim.

Defendant and his trial counsel testified at the evidentiary hearing. The record warrants these findings of fact: Counsel employed an investigator to aid in trial preparation. Defendant told the investigator that on the day of the robbery he had been in jail in Illinois and his mother and grandmother could account for his whereabouts. Jail records showed defendant had been released several days before the robbery. Counsel was unable to find the victim for deposing and his motion for a continuance was denied. Defendant was identified only by the robbery victim. Trial counsel produced defendant’s brother and sister-in-law to testify as to a change in defendant’s personal appearance since the date of the robbery. After trial, counsel appealed and argued the case in the supreme court.

Defendant’s general complaint is that his counsel failed to devote sufficient time in consultation with him. It would seem so superficially, but “the amount of time spent by an attorney with his client is not the standard for determining the adequacy of his efforts on behalf of his client.” Babcock v. State, 485 S.W.2d 85[3, 4] (Mo.1972). Here, defendant demolished his own asserted alibi, leaving misidentification the only viable defense. He has failed to meet his burden of showing prejudice by insufficient consultation. Fritz v. State, 524 S.W.2d 197[1-3] (Mo.App.1975).

Defendant contends trial counsel failed to render effective assistance by not producing his mother and grandmother as alibi witnesses and by not deposing the victim. Assuming the verity of defendant’s testimony that he told counsel about the possible alibi witnesses — which counsel did not confirm — their testimony would have conflicted with defendant’s statement that he was in jail. And, further, defendant waited five years after conviction to file his post-conviction motion, by which time both witnesses were dead.

Defendant also contends that if counsel had deposed the victim — whom counsel could not locate — this “would have allowed defense counsel to find helpful areas of cross examination evidence.” Defense counsel vigorously cross examined the victim at trial about his identification of defendant, which counsel considered the weak point in the state’s case. Defendant does not demonstrate how deposing the victim would have enhanced that cross examination.

The ultimate test in determining adequate legal representation is whether the conduct of counsel so prejudiced defendant that he was denied a fair trial. Arnold v. State, 545 S.W.2d 682[R-4] (Mo.App.1976). Defendant failed to meet his burden of showing a fuller investigation would have uncovered evidence which would have improved his trial position and that by such neglect he was deprived of substantial evidence. See Fritz v. State, 524 S.W.2d 197[1-3] (Mo.App.1975). Since we cannot conclude the trial court’s denial of defendant’s motion was clearly erroneous, there is no reversible error. Dill v. State, 525 S.W.2d 437[2-3] (Mo.App.1975).

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: STONE, Presiding Judge.

text:
    Anna Mae RYAN, Plaintiff-Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Defendant-Respondent.
    No. 10209.
    Missouri Court of Appeals, Springfield District.
    Dec. 23, 1977.
    Motion for Rehearing Denied Jan. 20, 1978.

      R. Deryl Edwards, James F. DeNeen, Joplin, for plaintiff-appellant.
    Malcolm L. Robertson, Joplin, for defendant-respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   STONE, Presiding Judge.

In this jury-waived, court-tried action at law, plaintiff Anna Mae Ryan (Anna Mae), as the named beneficiary under a group life insurance policy issued by The Equitable Life Assurance Society of the United States (Equitable) to FAG Bearings Corporation (FAG) and affording life insurance coverage on FAG employees, seeks to recover $6,000 on account of the death of her husband, Charles L. Ryan (Charles). At the close of the evidence, the court took the case under advisement and in due time filed findings of fact and conclusions of law, found the issues in favor of defendant and against plaintiff, and accordingly entered judgment for defendant.

On May 8,1972, Charles was employed by FAG at its plant in Joplin, Missouri, as a machinist on an hourly rate, with hours of employment from 3:00 p.m. to 11:00 p.m. Monday through Friday. Charles’ last day of work at FAG was Thursday, October 26, 1972. During the afternoon of Friday, October 27,1972, Charles called the FAG plant and told an unidentified person that he (Charles) “wouldn’t be in for work” that day; and on Monday, October 30, 1972, he picked up his tools at the FAG plant. On November 29, 1972, Charles (then 57 years of age) died.

The Equitable policy provided, in pertinent part, that coverage would cease automatically upon termination of employment and that cessation of active work by an employee would be deemed to constitute termination of employment, with other provisos that (1) an employee given a “leave of absence” might be regarded as an employee during such leave for a period not to exceed eleven months, (2) an employee dying, within thirty-one days after termination of employment would be regarded as covered by the policy, and (3) an employee might, at his option, convert his coverage under the group policy to coverage under an individual policy on himself.

The trial court found that Charles was not given a leave of absence on Friday, October 27, 1972; that his employment terminated upon his cessation of active work on Thursday, October 26, 1972; and that consequently, when he died on Wednesday, November 29, 1972, the thirty-fourth day after his cessation of active work for PAG, death benefits were not payable to Anna Mae under the Equitable group life insurance policy.

On this appeal, Anna Mae complains that cessation of active work does not “mean the last hour the employee physically worked,” challenges the trial court’s finding that Charles “was not given a leave of absence on Friday, October 27, 1972,” and questions the court’s application of definitions in the Master Policy which allegedly were more detailed than the terms in the employee’s handbook.

Since this action was tried by the court, we “review the case upon both the law and the evidence as in suits of an equitable nature” with “[d]ue regard . to the opportunity of the trial court to have judged of the credibility of witnesses.” Rule 73.01, subd. 3, ¶¶ (a)(b). And, it becomes our appellate duty to sustain the judgment nisi unless no substantial evidence supports it, or the judgment is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32(1) (Mo.banc 1976); Obermoeller v. Speck, 544 S.W.2d 21, 22(1) (Mo.App.1976); State ex rel. Shepherd v. St. Louis County Board of Education, 542 S.W.2d 55, 60(11) (Mo.App.1976).

The judgment under review is presumed to be correct and the burden of proving that it is erroneous rests upon appellant. Crossgates Home Ass’n. v. Blomquist, 537 S.W.2d 429, 430(1) (Mo.App.1976); Pallardy v. Link’s Landing, Inc., 536 S.W.2d 512, 515(2) (Mo.App.1976). Insofar as the testimony is conflicting, we accord deference not only to the trial court’s findings as to credibility but also to that court’s conclusions. Stenzel v. State Department of Revenue, 536 S.W.2d 163, 168(7) (Mo.App.1976). See Mize v. Sims, 516 S.W.2d 561, 564(2, 3) (Mo.App.1974); Pittman v. Great American Life Ins. Co., 512 S.W.2d 857, 858(1) (Mo.App.1974); Noelker v. Wehmeyer, 392 S.W.2d 409, 413(5) (Mo.App.1965).

Although the record is grossly incomplete and deficient (of which more shortly), the evidence in the transcript was neither unequivocal nor uncontroverted on the significant issues as to (1) what constituted “cessation of active work” within the contemplation and meaning of that language in the Equitable policy and (2) the time when Charles, the insured, ceased active work and thereby terminated his employment with FAG. In this situation, we necessarily “heed the well fixed principle that in court tried cases where the evidence conflicts sharply, appellate courts resolve the conflict by according due deference to the trial court because of its superior opportunity ‘to observe the conduct and demeanor of the parties and their witnesses and to weigh, evaluate and assess their testimony.’ ” Pittman v. Great American Life Ins. Co., 512 S.W.2d 857, 861-862(7) (Mo.App.1974). And, we are mindful that “the trial court, when sitting as the trier of fact, may believe all or none of the testimony of a witness, or accept it in part and reject it in part.” Mangan v. Mangan, 554 S.W.2d 418, 421(4) (Mo.App.1977). Accord: Cockrum v. Cockrum, 550 S.W.2d 202, 205(2) (Mo.App.1977); Long v. Lincoln, 528 S.W.2d 512, 513(3) (Mo.App.1975).

Having carefully reviewed the transcript with the foregoing precepts in mind, we have no doubt but that the record does support the findings, conclusions and judgment of the trial court. So determining, we need not, and accordingly do not, extend this opinion by chronicling and recording in tedious detail the testimony and evidence, in some particulars disparate or equivocal, as presented by the respective parties.

As mentioned supra, the record before us is grossly incomplete in that none of plaintiff’s thirteen exhibits (all of which were received in evidence) and none of defendant’s eight exhibits (seven of which were received in evidence) were either included in the transcript or filed with the clerk of this court, although the case was submitted here on briefs some months ago. Hence the intendment and content of such exhibits are to be taken as favorable to the trial court’s ruling and as unfavorable to plaintiff-appellant. Empire Gas Corporation v. Randolph, 552 S.W.2d 82, 84(4) (Mo.App.1977); Godsy v. Godsy, 531 S.W.2d 547, 553(9) (Mo.App.1975); Lange v. Baker, 377 S.W.2d 5, 7(4) (Mo.App.1964). See also Wykle v. Colombo, 457 S.W.2d 695, 699-700(4) (Mo.1970); Suesserman v. Suesserman, 539 S.W.2d 741, 743(4) (Mo.App.1976); Fuzzell v. Williams, 288 S.W.2d 372, 373(2) (Mo.App.1956).

Having carefully reviewed the transcript and painstakingly examined the excellent briefs of opposing counsel and the authorities cited therein, we are constrained to conclude that the judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence and that further extension of this opinion would have no precedential value. Accordingly, the judgment nisi is affirmed. Rule 84.16(b) V.A.M.R.

HOGAN and TITUS, JJ., concur.

      . On Friday, October 27, 1972, Charles had a job interview with the personnel manager of Vickers, Inc., at its Joplin plant and was oí-fered a job subject only to Charles passing a physical examination, which he subsequently did.


author: PER CURIAM.

text:
    John Wesley WILLIAMS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38478.
    Missouri Court of Appeals, St. Louis District, Division 1.
    Jan. 3, 1978.
    Peter J. Wunderlich, St. Louis, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for respondent.
   PER CURIAM.

This is an appeal by movant-appellant, John Wesley Williams, from a final order of the Circuit Court of the City of St. Louis denying, without an evidentiary hearing, movant’s motion to vacate two judgments of conviction after pleas of guilty imposing eight-year sentences to run concurrently for the offenses of robbery.

On December 2, 1975, movant pleaded guilty to two charges of robbery and was sentenced. On January 30, 1976, movant filed his motion to vacate the sentences and moved to disqualify the sentencing judge. The latter motion was sustained and the case reassigned.

The grounds for the motion to vacate were that movant’s pleas of guilty to the offenses were involuntarily made because (1) he was denied effective assistance of counsel because counsel sent someone to the jail “to offer movant some time in prison,” (2) he was subjected to coercion by the judge in that the judge sent movant’s grandmother to him to attempt to persuade him to plead guilty, (3) he was subjected to coercion by the judge in that the judge sent movant’s lawyer to offer him seven years and because he was scared, (4) the judge became an agent for the prosecutor, and (5) he was denied effective assistance because his lawyer told him to answer questions in the negative.

The trial court made findings of fact and conclusions of law and denied the motion without an evidentiary hearing.

Movant’s sole point on appeal is that the court erred in denying him an evidentiary hearing to determine the voluntariness of the pleas. The thrust of appellant’s contention is that the pleas were involuntary because there was coercion by the court in exerting pressure upon retained counsel and his grandmother to have him plead guilty to the charges. Appellant in his brief urges that his pleas of guilty were involuntary because “there was coercion by the Judge . by placing undue pressure upon [him] through means of his grandmother imploring him ... to enter a guilty plea” and by the court in “exerting pressure upon retained legal counsel.” He further argues that he was “scared both by his own counsel and the Court” and was denied a trial by jury.

He argues that he has met the requirements laid down in the judicial decisions so that the trial court erred in denying him an evidentiary hearing on these allegations. Movant’s brief makes much of the fact that he is a young man with a limited education.

The rules relating to requiring an evidentiary hearing are clear and have been often repeated. “. . .A 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.” Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974); Winston v. State, 533 S.W.2d 709, 715 (Mo.App.1976). The test is not whether a particular ritual is held but whether in fact the plea is voluntarily and intelligently made. The fact that a person is youthful or has a limited education is not the test. Neither does the fact that a plea results from a plea bargain or to escape a heavier sentence make the plea involuntary. Baker v. State, 524 S.W.2d 144, 147 (Mo.App.1975).

The allegations that the court exerted pressure upon retained counsel and his grandmother to induce him to plead guilty are insufficient, without more, to require an evidentiary hearing. The movant was an adult, he was experienced in the criminal process, he had a free will, he heard the circuit attorney relate the details of the robberies and he admitted they were substantially correct. He was informed that a jury panel was available, he was interrogated, it was explained to him the sentence he would receive and he was warned that he need not plead guilty.

Hence, we believe that the allegations made in the motion either do not warrant relief or are refuted by the record of the guilty plea. The record of the plea proceedings shows that the movant understood the nature of the charges and that his pleas were made voluntarily and with understanding.

Under this record and under the settled rules relating to motions to vacate, we are convinced that the trial court was not clearly erroneous in denying the motion without an evidentiary hearing and in its findings of fact and conclusions of law. Toler v. State, 542 S.W.2d 80, 83 (Mo.App.1976); Ross v. State, 517 S.W.2d 185, 187 (Mo.App.1974); Bolin v. State, 552 S.W.2d 58, 60 (Mo.App.1977). We have examined the other authorities relied upon by appellant and find them inapposite.

The judgment is affirmed.

All the Judges concur.

      . The trial court found that Burgin v. State, 522 S.W.2d 159 (Mo.App.1975) was not applicable. We agree. In Burgin, movant alleged in his motion that he had been promised a two-year sentence and was told by his counsel to answer in the negative when the court asked if any deal had been made. The court held that the withholding from the trial judge of a promise destroys the purpose prompting the inquiry by the court. The gist of the opinion is that a promise by anyone other than the judge is not binding on the court and the defendant should not be misled by a promise not within the promisor’s power to perform. Here the trial judge explicitly informed movant that he was going to sentence movant to eight years. Movant was not misled by an unfulfilled promise. See also Giggar v. State, 547 S.W.2d 870 (Mo.App.1977); Mainord v. State, 541 S.W.2d 779, 781 (Mo.App.1976).

      . Movant does not detail the facts as to how the court exerted pressure on third parties to induce him to plead guilty.

      . Nelson v. State, 537 S.W.2d 689, 693 (Mo.App.1976).


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Marvin Lee CROWELL, Defendant-Appellant.
    No. 10677.
    Missouri Court of Appeals, Springfield District.
    Jan. 9, 1978.

      Robert L. Payne, Pros. Atty., Dade County, for plaintiff-respondent.
    John A. Watkins, Greenfield, for defendant-appellant.
   TITUS, Judge.

Defendant was convicted of first offense operating a motor vehicle while intoxicated [§ 564.440(1)] and appeals.

Defendant’s brief on appeal contains five points relied on. Points 3,4 and 5 are tendered without citation of authority as required by Rule 84.04(d). When this occurs, the points are deemed to have been waived or abandoned. State v. Davis, 556 S.W.2d 745, 747[8] (Mo.App.1977); State v. Halliburton, 531 S.W.2d 554, 556[5] (Mo.App.1975); State v. Schulten, 529 S.W.2d 432, 434[2] (Mo.App.1975). In point numbered 2, defendant complains of the giving of Instruction No. 5. However, that instruction is not set forth in the argument portion of the brief as required by Rule 84.04(e), and the point has not been preserved for review. State v. Rantz, 546 S.W.2d 200, 201[1] (Mo.App.1977); State v. Adams, 537 S.W.2d 201, 202[1] (Mo.App.1976). Defendant’s point numbered 1 is likewise deficient and has been penned contrary to the dictates of Rule 84.04(d). It reads: “The court erred in permitting testimony pertaining to the results of the breath test when no proper foundation had been laid.” To ascertain “wherein and why” defendant contends no proper foundation had been laid would require that we either (1) resort to the argument portion of the brief or (2) speculate and guess what is intended by the abstraction. We are not required and decline to do either. State v. Morrow, 541 S.W.2d 738, 741[5] (Mo.App.1976), trsf. den. 1977; State v. McClain, 541 S.W.2d 351, 354[7] (Mo.App.1976); State v. Robbins, 455 S.W.2d 24, 26[1] (Mo.App.1970).

However, before dispatching the appeal for failure to comply with the rules relating to briefs, we make the following observations ex gratia. The first four points relied on by defendant concern alleged errors of the court in permitting and failing to strike testimony anent blood alcohol by breath analysis and giving MAI-CR 3.40, when, as to all of the above, defendant asserts no proper foundation had been laid by showing the test was administered in accordance with the rules and regulations of the Division of Health, and in refusing defendant’s proffered jury argument about the state’s failure to introduce those rules and regulations into evidence.

“[F]or any chemical analysis of [a] person’s breath[ ] to be considered valid under the provisions of [§ 564.442], it shall be performed according to methods approved by the state division of health.” State v. Deimeke, 500 S.W.2d 257, 258[1] (Mo.App.1973). This requirement is a substitute “for a common law foundation for the introduction of evidence of the analysis for blood alcohol.” State v. Kramme, 491 S.W.2d 24, 26[1] (Mo.App.1973). There was no need that the Rules for Determination of Blood Alcohol by Breath Analysis (13 CSR 50-140) be in evidence to enable the court to determine whether they were complied with because § 536.031-5 mandates that “[t]he courts of this state shall take judicial notice, without proof, of the contents of the code of state regulations.” The case of State v. Sinclair, 474 S.W.2d 865, 868[2] (Mo.App.1971), which is cited and relied on by defendant, is not contrary authority because it was premised on the old, now defunct rule that courts could not take judicial notice of the rules and regulations of state administrative agencies.

The evidence was that the test ampules were within the required volumetric and chemical tolerances and that the testing machine was in good operating condition before and after the testing. The trooper who administered the test had a type III permit from the Division of Health. He testified that he did not deviate from the manufacturer’s procedures, that the breathalyzer was operating properly and that he conducted the test in conformity with the Rules of the Division of Health. Although he stated that he observed defendant for non-consumption of alcohol and vomiting for 15 minutes rather than the 20 minutes prescribed by the Highway Patrol checklist, the regulations of the Division of Health require only 15 minutes of observation [13 CSR 50-140.040(3)(H)], and the trooper testified he otherwise complied with the patrol checklist, a copy of which was in evidence. State v. Cook, 530 S.W.2d 38, 40[1] (Mo.App.1975) and State v. Kramme, supra, 491 S.W.2d at 27[3] approved introduction of breath analyses upon lesser foundations than shown in the instant record. See also State v. Forester, 490 S.W.2d 671, 672[2] (Mo.App.1973).

For the reasons first stated, the appeal is dismissed.

All concur.

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


author: FLANIGAN, Judge.

text:
    Ross L. GREEN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10306.
    Missouri Court of Appeals, Springfield District.
    Jan. 9, 1978.

      John L. Woodward, Steelville, for mov-ant-appellant.
    John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Movant Ross L. Green appeals from a denial of his “Motion to Vacate Judgment and Set Aside Sentence under Rule 27.26.” A jury found movant guilty of the forcible rape of a seventeen-year-old girl and he received a sentence of 20 years’ confinement. On appeal from that conviction, this court affirmed. State v. Green, 515 S.W.2d 197 (Mo.App.1974). Counsel was appointed to represent defendant on the motion. After holding an evidentiary hearing in the presence of defendant and his attorney, the trial court made certain findings of fact and conclusions of law.

Although the motion contained several grounds for relief, only one of those grounds, that alleging denial of effective assistance of counsel, has been carried forward in movant’s brief and it alone need be considered, the others having been abandoned. Herron v. State, 498 S.W.2d 530, 531[1] (Mo.1973).

On this appeal movant asserts that counsel was ineffective in four respects. Two of the latter have not been preserved for appellate review for the reason that they were neither raised in the motion nor tried by the express or implied consent of the parties in the meaning of Rule 55.33(b). Harkins v. State, 494 S.W.2d 7, 14[7] (Mo.1973); Garrett v. State, 528 S.W.2d 174, 176[3] (Mo.App.1975).

The facts relative to the other two respects in which counsel was allegedly ineffective were fully developed at the eviden-tiary hearing. As to them, the trial court made findings of fact and conclusions of law in compliance with Rule 27.26(i). This court has reviewed the record and the briefs and considered the authorities cited by the parties. The judgment of the trial court is based on findings of fact and conclusions which are not clearly erroneous and no error of law appears. An opinion would have no precedential value.

Pursuant to Rule 84.16(b) the judgment is affirmed.

All concur.


text:
    The CORNING BANK, a Banking Corporation, Plaintiff-Appellant, v. Gerald HAGER, Defendant-Respondent.
    No. 10516.
    Missouri Court of Appeals, Springfield District.
    Jan. 10, 1978.

      Ted M. Henson, Jr., Scott & Henson, Poplar Bluff, for plaintiff-appellant.
    Ronald L. Little, Little, Million & Teran-do, Poplar Bluff, for defendant-respondent.
   PER CURIAM.

Plaintiff is the assignee of Nationwide Building Contractors, Inc. (Nationwide). On October 18,1974, defendant and Nationwide entered into a written contract under which Nationwide was to provide the labor and materials incident to the erection of a steel building according to certain specifications. The contract price was $29,140 payable in three installments. The first installment ($7,285) was paid by defendant on execution of the contract.

The building was only partially completed. Plaintiff sued for the balance of the contract price. The answer of defendant alleged, among other things, that the building was not constructed in accordance with the specifications, that the portion of the building which was completed was of no value, and that Nationwide had abandoned the contract. The trial court, sitting without a jury, rendered judgment in favor of defendant. Plaintiff appeals.

Plaintiff’s first “point relied on” is that the trial court erred in failing to render “a brief opinion containing a statement of the grounds for its decision,” Rule 73.01 para. 1(b), although the court had been requested to do so before final submission of the case. After the case was lodged here, this court, by order, directed that the appeal be held in abeyance and the cause be remanded to the circuit court for the preparation by the trial court of the “brief opinion containing a statement of the grounds for its decision.” This court’s order also directed that the opinion of the trial court be filed with the clerk of this court and that counsel be furnished with copies.

The trial court, in compliance with the order of this court, prepared a written “opinion containing statement of grounds for trial court’s decision.” That opinion contained the statement that the trial court found the issues in favor of defendant on certain grounds. Among the grounds were these: Nationwide breached the contract by “failing to complete the building as called for in the contract and by failing to carry the work to completion as rapidly as [called for] in the contract”; Nationwide failed to obtain and install doors needed to complete the building and to protect it from wind damage; Nationwide did not pay its subcontractors; plaintiff had no greater rights than Nationwide, its assignor. There was evidence to support the findings of fact included in the trial court’s grounds.

Each party was given the privilege of filing a supplemental brief in light of the opinion of the trial court but neither exercised that privilege. Accordingly the appeal has been considered on the original briefs and arguments.

Plaintiff’s first point now lacks factual support and is moot. There is no claim that the opinion of the trial court, prepared in response to this court’s order, did not comply with Rule 73.01 para. 1(b). Accordingly plaintiff’s first point now has no merit.

Plaintiff’s second “point relied on” is stated as follows: “The trial court erred in entering judgment for the defendant and against the plaintiff because there is not sufficient evidence to support that judgment.” This point preserves nothing for appellate review for it violates Rule 84.04(d) in failing to state “briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” Similar defective statements have been accorded the same fate. Wombles v. General Am. Life Ins. Co., 541 S.W.2d 45, 46 (Mo.App.1976); Stokes v. Kelly, 537 S.W.2d 562 (Mo.App.1976); Barber v. M. F. A. Milling Company, 536 S.W.2d 208, 211[13] (Mo.App.1976); Davis v. Schott, 508 S.W.2d 193 (Mo.App.1974).

The judgment is affirmed.

All concur.


author: PER CURIAM:

text:
    David Lee McCLAIN, a/k/a David Lee McLain, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10693.
    Missouri Court of Appeals, Springfield District.
    Jan. 10, 1978.

      Robert W. Evenson, Pineville, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM:

Movant (then defendant) was convicted of molesting a minor female with immoral intent (§ 563.160) and, in accordance with the jury’s verdict, was sentenced to five years’ imprisonment. Per our special order under Rule 28.07, movant appealed and the conviction was affirmed. State v. McClain, 541 S.W.2d 351 (Mo.App.1976). The present appeal is from denial, after evidentiary hearing, of movant’s Rule 27.26 motion.

On this appeal and citing eight specific instances, movant’s attorney asseverates that the conviction should be set aside and a new trial granted because movant was denied effective assistance of counsel at his trial on the criminal charge. “In measuring the performance of counsel against a charge of inadequate representation, there are four gauges: 1) since he is vested with broad latitude he is not to be adjudged incompetent for mere errors of judgment; 2) his ineffectiveness must constitute the proceedings a farce or mockery of justice; 3) his representation must be so woefully inadequate that it shocks the conscience; and 4) his incompetency must have deprived his client of a fair trial.” State v. Garrett, 510 S.W.2d 203, 207[6] (Mo.App.1974).

Initially, movant says his trial counsel was ineffective because, after adducing testimony raising the defense of alibi, he failed to request the giving of either alibi instructions MAI-CR 3.20 or MAI-CR 3.22. These instructions are required to be given only if requested. MAI-CR 3.00 Series. To understand this segment of movant’s point, we need some factual background. The father and brother of the involved minor were called as defense witnesses at the criminal trial. Each testified that at the time of the charged offense movant was sitting between them .viewing television. On cross-examination of the brother, he denied he “ever had any homosexual relations with this Defendant.” On rebuttal, the state produced a witness who testified that at some time near the date of the charged offense he had seen the victim’s brother and defendant “playing with each other . . They was handling each other’s penis.”

Movant has cited no authority to support the initial segment of his point. We could, therefore, consider it waived or abandoned. State v. Halliburton, 531 S.W.2d 554, 556[5] (Mo.App.1975). Nevertheless, we will briefly consider the matter for we doubt that counsel’s failure to request an alibi instruction even constituted an error of judgment. If the jury was to believe the alibi testimony, an alibi instruction was not an absolute necessity before it could do so. On the other hand, if the testimony was to be accorded no credence, emphasizing it by a specific instruction would only serve to accentuate the rebuttal testimony, supra, which would be morally offensive to most, if not all, of the jurors. Under the circumstances, trial counsel could have correctly concluded that the least said about the alibi testimony, the better it would be for the defendant.

Parts two and three of movant’s point will be considered together. In substance they charge trial counsel with ineffectiveness for not having impeached the state’s witness Simon. This is based on the assertions that Simon testified at the preliminary hearing he could not identify the perpetrator of the crime, whereas at trial Simon identified defendant as the culprit, and that trial counsel failed to show Simon had a motive to lie and cooperate with the state by revealing that his children were in the custody of the juvenile authorities. The principal difficulty with the allegations made by movant in these parts of his point is that they are factually incorrect. Simon did not identify movant at the criminal trial as the perpetrator of the crime. He testified he could not say with whom he had observed the minor female because “I only seen his clothes and his leg, that’s all I could see.” Simon further said that “I wouldn’t swear” that the trousers worn by the man on the bed were the same trousers he later observed the movant wearing. With the record in this posture, there was no reason that defense counsel should have undertaken to impeach Simon’s testimony or to show that he may have had a motive to lie.

The fourth segment of movant’s point is: “Trial defense counsel failed to impeach Michael Kissinger, a crucial state’s witness, and to discredit his testimony before the jury by showing his various arrests on various charges.” It was stipulated in the 27.26 proceeding that Kissinger had been arrested on numerous charges, but no convictions were shown. It did not constitute ineffectiveness when counsel did not undertake impeachment of the witness by showing the arrests. “The record of arrests alone was not admissible to impeach or contradict the witness even by way of cross-examination. State v. Sanders, Mo.Sup., 360 S.W.2d 722, 725[4]; State v. Menz, 341 Mo. 74, 106 S.W.2d 440, 448[5, 6].” Jones v. State, 491 S.W.2d 233, 235[3] (Mo.1973).

The fifth section of movant’s point is to the effect that trial counsel was ineffective because he failed to produce evidence of the minor female’s incompetency. As pointed out in State v. McClain, supra, 541 S.W.2d at 355, trial counsel did produce the minor’s natural mother who testified her daughter was “retarded” and “you can’t believe what she tells you.” However, mere retardation or adjudication of incompetency does not prevent a person from becoming a proper witness if he understands the nature of an oath and shows that he possesses mental capacity sufficient to observe, recollect and narrate the things he heard or saw [Dennis v. Sears, Roebuck & Company, 461 S.W.2d 325, 330[7] (Mo.App.1970)], and children under ten years of age are incompetent to testify only if they “appear[] incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.” § 491.060(2). Movant suggests various sources which trial counsel could have employed to gain additional evidence of the child’s retardation. But whether such evidence would have been sufficient to absolutely disqualify the child as a witness has not been demonstrated. A movant in a Rule 27.26 proceeding claiming ineffective assistance of counsel has the burden of establishing that ground for relief by a preponderance of the evidence. Dove v. State, 553 S.W.2d 554, 556[1] (Mo.App.1977). That burden is not met when a basic claim reposes in undemonstrated territories, particularly when the court that determined the motion specifically found that the additional testimony anent retardation, as here, would not have changed the court’s ruling as to the child’s competency as a witness.

The final portions of movant’s point are: “6. Trial defense counsel failed to prepare and file a motion for new trial, and failed to take meaningful steps to preserve the defendant’s right to an appeal by his failure to preserve errors at the trial by objection; 7. Trial defense counsel failed to advise the defendant of the right to, meaning of, and need for a motion for new trial; 8. Trial defense counsel failed to advise the defendant of the right to, and the significance of an appeal.”

The second half of sub-point 6, supra, preserves nothing for appellate review. In what specifics trial defense counsel failed to preserve error by objecting can be ascertained, if at all, only by resorting to the argument portions of movant’s brief. This we are not required to do. State v. Redd, 550 S.W.2d 604, 607[4] (Mo.App.1977). In reference to movant’s complaint that his trial defense counsel did not file a motion for a new trial and did not explain the necessity thereof, we note again that the transcript on appeal in the criminal cause shows that the movant advised his attorney he did not want him to file such a motion and, furthermore, that the movant expressly told the trial court, when he appeared for allocution and sentencing, that he felt “the same way today.” The failure of movant’s trial counsel to file a motion for a new trial did not amount to ineffective assistance of counsel, particularly when the motion was not filed in compliance with movant’s instruction. White v. State, 430 S.W.2d 144, 147[3] (Mo.1968). The complaint that trial defense counsel did not advise movant regarding an appeal seems moot when it is considered that an appeal was, in fact, permitted by special order under Rule 28.07 and that all allegations of error (save the issue of ineffective assistance of counsel herein now reviewed) were considered on their merits. State v. McClain, supra, 541 S.W.2d 351.

The judgment of the circuit court is affirmed.

All concur.

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

      . By stipulation of the parties, the transcript of the criminal trial was included in the record for this appeal.


text:
    Valeria RUTH, Appellant, v. James H. RUTH, Respondent.
    No. 38447.
    Missouri Court of Appeals, St. Louis District, Division 1.
    Jan. 10, 1978.

      Pannell, Dodson & Robinson, William H. Pannell, Festus, for appellant.
    Albert H. Feldt, Clayton, Clinton Almond, Joseph E. Furtaw, Hillsboro, for respondent.
   CLEMENS, Presiding Judge.

The only issue in this case is whether there was evidence to support that part of the court’s decree of dissolution which terminated plaintiff-wife’s $40-a-week maintenance allowance 14 months after the decree. The parties were married in 1958, separated in 1974, and their marriage was dissolved June 9, 1976.

The decree gave plaintiff custody of the children and ordered defendant to make support payments of $40 a week for each child and $40 weekly maintenance payments until September 23, 1977.

The record shows plaintiff is employed as a school bus driver at a net salary of $258 per month; she has no other special skills or occupational training. She requested a support and maintenance award of $700 a month. Defendant earns about $22,000 a year as a plant foreman and his monthly living expenses total $995. No anticipated change in the parties’ circumstances appears in the record. There is no evidence either party’s needs, occupation or income will change.

The standard of our review is prescribed by Murphy v. Carron, 536 S.W.2d 30[1-3] (Mo.1976): “The decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it.”

Two recent cases are in point. In In re Marriage of Powers, 527 S.W.2d 949[11] (Mo.App.1975), we reviewed the decree provisions awarding plaintiff-wife $300 a month maintenance with payments to be terminated in seven years. We reversed, holding the trial court erred in ordering the termination where there was no evidence the parties’ circumstances would be different in seven years. We held: “Awards of limited duration are entirely proper where the trial court has before it evidence of some impending change in the financial conditions of the parties or at least some reasonable expectation that such a change will occur.”

Similarly, in LoPiccolo v. LoPiccolo, 547 S.W.2d 501[3-5] (Mo.App.1977), we reversed the provision terminating maintenance where that part of the decree was unsupported by substantial evidence, saying: “Maintenance should not be prospectively decreased or terminated if there is no evidence or reasonable expectation that the circumstances of the parties will be markedly different in the future.”

So it is here. Termination of the maintenance allowance was made without any showing of a prospective change in circumstances. To that extent the decree was not supported by evidence. We reverse and remand with directions to the trial court to modify its decree as of the date of entry, by deleting the words “until September 23, 1977.”

SMITH and McMILLIAN, JJ., concur.


author: SIMEONE, Chief Judge.

text:
    STATE of Missouri ex rel. W. F. SCOTT, Statutory Trustee for concluding the affairs of S&S Service, Inc., Relator, v. Honorable James SANDERS, Presiding Judge of the Circuit Court of the City of St. Louis, Respondent.
    No. 39083.
    Missouri Court of Appeals, St. Louis District, Division 4.
    Jan. 10, 1978.

      J. Martin Hadican, Lawrence J. Permu-ter, Clayton, for relator.
    Bussey, Collier & Dorsey, P. C., Charles L. Bussey, Jr., St. Louis, for respondent.
   SIMEONE, Chief Judge.

This is an original proceeding in mandamus. We have jurisdiction. Article V, Sec. 4, Mo.Const.

On March 1, 1976, relator, W. F. Scott d/b/a S&S Service, Inc., filed a petition in two counts against Primm Garden, Inc. seeking damages for breach of a service contract to furnish Primm a certain number of containers for placing trash therein. The contract allegedly was for a three-year term. S&S alleged that the defendant, Primm Garden, cancelled the contract. Count I of the petition alleged the express contract and Count II pleaded quantum me-ruit. Primm Garden filed two motions to dismiss the petition on the grounds that (1) the contract is “invalid and void” and (2) the petition failed to state a claim upon which relief can be granted. Primm also filed a motion to make more definite and certain. Relator confessed the motion to make more definite and certain, and on November 19, 1976, W. F. Scott, statutory trustee of S&S Service, Inc., filed an amended petition in two counts — Count I alleging an express agreement and seeking damages thereunder and Count II quantum meruit for services furnished at the request of Primm. It is Count II which is the subject of this proceeding. Count II alleged that

“[o]n or about May 11,1973, at the special instance and request of the Defendant, PRIMM GARDEN, INC., S&S SERVICE, INC. agreed to furnish certain services to the Defendant, namely, a certain number of containers of various size for placing of trash therein, for a certain price . for three (3) years, or until May 11,1976.”

The petition further alleged that (1) the services were furnished at the “special instance and request” of the defendant until August, 1974 when S&S was advised that the services were no longer desired, (2) the defendant failed to pay the reasonable amount for the services furnished and that the reasonable amount for such services was $24,000, and (3) the statutory trustee has made “repeated demands” for the payment of $24,000, the reasonable value of the services furnished, but that defendant has refused to pay the same. Count II prayed for damages in the sum of $24,000 with interest for the “services performed by the said Plaintiff.” (emphasis added).

On December 29, 1976, Primm Garden moved to dismiss Count II of the petition because it “fails to state a cause of action upon which relief can be granted.” The motion was heard by a judge of the circuit court, sitting for the respondent judge, and on February 10, 1977, the court ordered that Count II of the amended petition be dismissed.

On March 31,1977, the relator-Scott filed his petition for mandamus in this court seeking our alternative writ to require the respondent to vacate and set aside his order of February 10, 1977 dismissing Count II of the amended petition. In his petition relator-Scott alleged that Count I “alleged a cause of action against Defendant for breach of contract,” and Count II “alleged an alternative cause of action against said Defendant in quantum meruit for services provided.” Relator alleged that the respondent stated that relator “was compelled to make an immediate election, prior to trial, as to whether to sue on contract or in quantum meruit.” Relator therefore prayed that the respondent be required to vacate his order dismissing Count II.

We issued our alternative writ. Return and answer to the return were filed.

In his brief relator-Scott contends (1) that the trial judge erred in dismissing Count II because it states a claim upon which relief can be granted and states all the elements necessary to state a claim in quantum meruit, and (2) that mandamus is the appropriate remedy to require the respondent to vacate his order dismissing the quantum meruit count.

After reviewing the record, the brief of the relator and appropriate authorities, we must conclude that our alternative writ was improvidently issued and therefore quash our alternative writ. We shall discuss the issues in the posture presented to us: (1) whether relator may plead alternatively an express contract and quantum meruit, (2) whether Count II stated the necessary elements of quantum meruit and (3) whether mandamus is the appropriate remedy.

First, it is now clear that under modern principles of pleading, and unlike the strict rules of common law pleading, a party may plead in the alternative. Rule 55.10, amended in 1973, states explicitly that “[a] party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses.” Under this rule an express contract and an implied contract may be pleaded in the alternative without the pleading being struck for insufficiency. Norman Schuman Interiors, Inc. v. Sacks, 479 S.W.2d 200, 203 (Mo.App.1972); Edmonds v. Stratton, 457 S.W.2d 228, 231 (Mo.App.1970); Burck hardt v. General Am. Life Ins. Co., 534 S.W.2d 57 (Mo.App.1975).

Second, a pleading states a claim in quantum meruit if it alleges that the defendant is justly indebted to the plaintiff for services rendered or materials furnished at the defendant’s instance and request. Service Construction Company v. Nichols, 378 S.W.2d 283, 288 (Mo.App.1964). To state a cause of action in assumpsit on quantum meruit all that is required to be alleged is a

“. . . request, consideration, indebtedness, performance by the claimant, a demand and a claim for damages or allegations from which it could only be inferred that the services were not gratuitously rendered or had not been paid for

Laughlin v. Boatmen’s Nat. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974, 978 (Mo.1945) and cases cited therein; see also 29A Mo. Digest, Work and Labor,

Third, while we believe the plaintiff may, under the Supreme Court Rules, plead alternatively, we nevertheless conclude that the extraordinary writ of mandamus is not an appropriate remedy under the circumstances of this proceeding.

Mandamus, governed by statutes and rules, is a stern, harsh writ which when issued is an unreasoning, inflexible peremptory command to do a particular thing therein specified without conditional limitations of any kind. State v. Ewing, 404 S.W.2d 433, 440 (Mo.App.1966). Mandamus is one of the most powerful writs a court can issue. State v. Crain, 308 S.W.2d 451 (Mo.App.1958). It is not a writ of right, but rather its issuance lies in the sound discretion of the court. Mandamus is not the proper proceeding if another adequate remedy exists, such as an appeal. State ex rel. University Bank v. Blair, 365 Mo. 699, 285 S.W.2d 678, 679 (banc 1956). See discussion in Thompson and Campbell, Mandamus, Mo. Appellate Practice and Extraordinary Remedies, Mo. Bar CLE, ch. 8, sec. 8.17, pp. 8-12.

Neither will mandamus lie in circumstances where the right sought to be enforced is doubtful, State ex rel. Crites v. West, 509 S.W.2d 482, 485 (Mo.App.1974), nor where the act sought to be compelled involves the exercise of judicial discretion. State ex rel. Diners’ Financial Corporation v. Swink, 434 S.W.2d 593, 597 (Mo.App.1968). For a complete discussion see Notes, Mandamus in Missouri: Old Standards and New Developments, 1972 Wash. U. L. Q. 719.

We had occasion recently to discuss the appropriateness of this extraordinary remedy insofar as it relates to pleadings. In State ex rel. Pisarek v. Dalton, 549 S.W.2d 904 (Mo.App.1977), Mr. and Mrs. Pisarek brought an original proceeding, in mandamus to compel the respondent judge to vacate his order dismissing certain counts of their petition for damages for breach of contract. We discharged our alternative writ as improvidently granted and quashed it. In the course of our opinion we discussed the function of the writ and its availability in cases of this kind:

“The traditional function or purpose of the writ of mandamus is to enforce, not establish, a claim of right, ... or as frequently stated, to execute, not to adjudicate. . . . [T]he writ of mandamus will not be issued when there is an adequate ordinary remedy, and particularly so when that remedy is by way of appeal. .
Mandamus does not ordinarily lie to review the sufficiency of pleadings and the rulings relating thereto. The only exception is where appellate review is not adequate. .
. [C]ourts ‘are extremely reluctant to infringe upon the normal appellate process by extending the scope of any extraordinary legal remedy,’ . . ” State ex rel. Pisarek v. Dalton, 549 S.W.2d at 905.

We noted that the trial court did not designate its order a final judgment for purposes of appeal which it could have done under the authority of Rule 81.06 , nor did the plaintiffs request such a designation. We held in that decision that ordinarily mandamus is not available until all ordinary remedies are exhausted, and that if plaintiff “had requested, or should now request, the dismissal order to be so designated,” there was no “positive barrier” to its approval.

We believe that Pisarek controls the situation here. The relator did not seek, nor did the trial court designate, the dismissal of Count II as a final order for purposes of appeal. In the absence of such designation, mandamus should not lie. The relator may still try the cause under Count I of the petition and preserve its right to appeal the dismissal of Count II. This may never be necessary depending on the outcome of the relator’s cause of action against Primm Garden, Inc.

We therefore hold that mandamus is not an appropriate remedy under the eircum-stances here and quash our alternative writ previously issued. We have examined the authorities relied upon by the relator and find them not to be controlling.

The alternative writ if discharged and the peremptory writ denied.

DOWD and SNYDER, JJ., concur.

      . Count II appears to be a claim for $24,000 for the services “furnished” at the request of Primm from May 11, 1973 to August, 1974. But Count I, on the express contract, is a claim for breach of contract because the defendant, Primm Garden, cancelled the services two years prior to the termination date stated in the agreement, and as a result S&S suffered damages in the amount of $24,000. Therefore, we believe that Count I is a claim for damages for anticipatory breach of contract and Count II is a claim for quantum meruit for services “furnished.”

      .Nothing in the petition for damages indicates that the claims are alternative. A close reading of Counts I and II appears to indicate that Count I is a claim for damages for anticipatory breach and Count II for services furnished. However, we shall treat the proceeding as one of alternative pleading whether the counts are for future or past damages or whether they are alternative theories of an express or implied contract for future or past damages.

      . We have not been favored by a brief from the respondent.

      . So also, a plaintiff may sue in quantum meru-it in general assumpsit even though there is an express contract, introduce the contract in evidence and recover the reasonable value of the services not in excess of the contract value. Grue v. Hensley, 357 Mo. 592, 210 S.W.2d 7, 11 (1948).
      However, where the petition declares upon an express contract, no recovery thereon can be had on the theory of quantum meruit. O’Neal v. Mavrakos Candy Co., 255 S.W.2d 138, 140 (Mo.App.1952), aff'd. 364 Mo. 467, 263 S.W.2d 430 (Mo. banc 1953).

      . Sections 529.010-529.100.

      . Rules 84.20-84.25.

      . It may well be that the respondent exercised his discretion in dismissing Count II because it sought damages for services “furnished” whereas Count I sought damages for anticipatory breach of contract.

      . Rule 81.06 provides that . . [w]hen a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless specifically so designated by the court in the judgment entered. . . .’’In Pisarek we construed this language to apply to the dismissal of certain counts of the plaintiffs’ petition.

      . Relator relies on Holtz v. Superior Court of City & Co. of San Francisco, 3 Cal.3d 296, 90 Cal.Rptr. 345, 475 P.2d 441 (banc 1970). That decision is not dispositive of the issues here. This is not a situation where a party is deprived of an opportunity to plead his cause of action or defense.

      . Professor Tuchler suggests that “. . . [a] superintending court . . might adopt a set of criteria which are based upon old formulae concerning the issuance of writs. For example: No writ will issue to correct trial court error unless there is clearly no adequate remedy by appeal or by procedures in the trial court, and unless the error is either (1) transgression of jurisdictional lines between courts or between courts and other government organs, or (2) a matter concerning the administration of the judicial system relating to the operation of a court or the prevention of conflict between courts.” Tuchler, Discretionary Interlocutory Review in Missouri: Judicial Abuse of the Writ?, 40 Mo.L.Rev. 577, 626-627 (1975). We find none of these criteria here.

      . In State ex rel. Broglin v. Nangle, 510 S.W.2d 699, 704 (Mo. banc 1974), there was no question of the exercise of discretion. “There is but one proper decision” under the conflict of laws rules.

        Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597 (Mo.1953) and Schoiz Homes, Inc. v. Clay Wideman & Sons, Inc., 524 S.W.2d 896 (Mo.App.1975) did not involve mandamus but whether there was a final judgment for purposes of appeal.


author: ROBERT G. J. HOESTER, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Raymond CHAMPION, Defendant-Appellant.
    No. 38415.
    Missouri Court of Appeals, St. Louis District, Division 3.
    Jan. 10, 1978.

      Robert C. Babione, Public Defender, Joseph Webb, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff and respondent.
   ROBERT G. J. HOESTER, Special Judge.

This is an appeal from a judgment entered on August 13, 1976. Defendant Raymond Champion was convicted of second degree burglary. The appropriate statutes are 560.045 and 560.095 RSMo. 1969, and appellant was sentenced to ten years in the Missouri Department of Corrections.

Appellant relies on three errors. Two errors relate to the admission into evidence of State’s Exhibit 15, a screwdriver, and State’s Exhibit 16, a comb. The third error will be discussed later.

The appellant argues that the admission into evidence of the screwdriver and the comb, which were not in his possession at any time, and were not shown to have been used by him in the commission of the burglary was error.

The black comb and screwdriver were found in the residence of the victim in one of the bedrooms. The owner-victim testified that the comb and screwdriver found by the police did not belong to him.

The appellant was seen by one of the police officers exiting from the house of the victim with a TV in his hands. Appellant placed the TV in a car parked at the curb, got in the car where he was arrested. The officer found one AM/PM radio in the car. The owner of the house identified the TV and the AM/PM as his property and further testified that he had not given appellant permission to be in the house. The resident-victim also testified that the door and doorjamb had marks on them that were not there earlier in the afternoon when he left the house.

The screwdriver was properly admitted into evidence. State v. Marler, 453 S.W.2d 953 (Mo.1970), l. c. 956, “Admission in evidence of State’s Exhibits 10, 12 and 13 is assigned as error on the ground that they were not shown to have been in appellant’s possession at any time or to have been used in the commission of the burglary. Exhibit 10 was a lug wrench; 12 was a large screw driver (sic) and 13 was a crowbar. The crowbar and wrench were found inside the store, lying on a cardboard box near the store safe. The store manager had never before seen them. The screw driver (sic) was found just outside the back doors on the pavement. The front door of the store had been ‘jimmied’ and the door jamb (sic) sprung by insertion of some sort of tool. The rear doors had been forced by the use of some sort of tool.” The Missouri Supreme Court held that these items were properly admitted into evidence.

“Where the evidence shows that accused was in the vicinity of the scene of a burglary . . . about the time of its commission, evidence that he was in possession of or had access to burglarious tools with which the crime was or might have been committed is competent, if under the particular facts of the case the tools . are sufficiently connected with accused and the' crime to become relevant and have some probative value and if they bear on the question of intent.” State v. Miller, 368 S.W.2d 353, 360[4] (Mo.1963). Although these exhibits were not shown to have been the property of appellant and it was not shown by direct eyewitness testimony that they were actually in his possession, the jury reasonably could infer under the circumstances that these exhibits had been in the possession of appellant and his companions when they entered the store, and that they had been used in the commission of the burglary. A case in point is State v. Lindner, 282 S.W.2d 547, 551[6] (Mo.1955), in which crowbars foreign to the establishment, found in the burglarized premises under analogous circumstances, were held properly admitted in evidence.

We conclude that the screwdriver was properly admitted into evidence because the defendant was seen exiting from the residence of the victim at the time of the commission of the burglary with some of the victim’s possessions in his hands and these facts are sufficient to connect the accused to the screwdriver. The admission of the comb, although probably irrelevant, if error, would be harmless error and we would not reverse.

The third error assigned is the giving of MAI-CR 7.22 as modified by instruction MAI-CR 2.12. The instruction reads:

If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about March 31, 1976 in the City of St. Louis, State of Missouri, the defendant or Sylvester Jones broke into the dwelling place of John Richardson located at 5464 Garland and entered therein, and
Second, that he did so with the intent to steal property therein, and
Third, that the defendant acted either alone or knowingly and with common purpose together with Sylvester Jones in the conduct referred to in the above paragraphs, then you will find the defendant guilty of burglary in the second degree.
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.

Appellant argues the first paragraph of the instruction would permit the jury to find that the breaking and entering need not have been done by the defendant because of the word “or” between the defendant and Sylvester Jones. Appellant’s argument continues that the jury could have found and believed from the evidence that Sylvester Jones broke and entered, without considering the defendant’s participation in this element.

The third paragraph of the instruction allows the jury to find the defendant guilty if he acted either alone or together with Sylvester Jones. Appellant then argues that the defendant could be found guilty if Sylvester Jones was the only person who broke and entered. (Emphasis supplied).

The evidence clearly establishes appellant’s participation and the co-defendant was arrested inside the house.

In State v. Timley, 541 S.W.2d 6 (Mo.App.1976), the court discusses the use of MAI-CR 2.10, 2.12 or 2.14. The court states the failure to use MAI-CR 2.10 and 2.12 will not be deemed error even if there is substantial evidence that the appellant was a joint active participant or actor so long as there is no evidence that he was only an aider or encourager. The Notes on Use of the Missouri Approved Criminal Instructions says that MAI-CR 2.12 should be used if defendant was an active participant. Here the lawyers for the State, to their credit, conscientiously tried to comply with the suggestions as to use of MAI-CR instructions.

When we read instruction MAI-CR 2.12, the language says to use the disjunctive “or.” MAI-CR Page 2-18, “. . . use the word or phrase applicable to describe the person or persons who engaged in that conduct e. g. ‘defendant’ or the name or names of the other or others or a certain person or certain persons or ‘defendant or another’ or defendant or others.” Clearly the Notes on Use use the disjunctive which was used in the instructions given. There is no error in the instruction given.

The judgment will be affirmed.

GUNN, P. J., KELLY and WEIER, JJ., and HERBERT LASKY, Special Judge, concur.


author: STONE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Henry J. WOODS, Defendant-Appellant.
    No. 10676.
    Missouri Court of Appeals, Springfield District.
    Jan. 11, 1978.

      John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Charles E. Buchanan, Public Defender, Joplin, for defendant-appellant.
   STONE, Judge.

On February 28, 1977, a Jasper County jury found defendant guilty of auto theft. On March 23,1977, defendant filed a timely motion for new trial, which was overruled on April 5, 1977. On April 15,1977, allocution was granted and the court pronounced the “[¡judgment and sentence of the Court that the defendant be sentenced to the custody of the Department of Corrections for a term of ten years.”

Rule 27.11, V.A.M.R., provides that “[wjhenever a judgment upon a conviction shall be rendered in any court, the clerk of such court shall enter such judgment and sentence thereon fully on the minutes, stating briefly the offense for which such conviction shall have been had, and the court shall inspect such entries and conform them to the facts; but the omission of this duty, either by the clerk or judge, shall in nowise affect or impair the validity of the judgment or sentence.”

The transcript in this case includes the above-quoted rendition of judgment by the court but no entry of judgment by the clerk is shown. Rule 81.12(c), V.A.M.R., authorizes non-judicial approval of a transcript on appeal only where “. . the parties agree that the transcript correctly includes all of the record . . . .” Since opposing counsel of record in this court have affixed their signatures to the transcript beneath an entry entitled “Approval of Transcript,” certainly we can not assume that the circuit clerk’s duty to enter the judgment of record has been fulfilled.

It is essential for the purpose of appellate review that upon conviction the clerk’s entry of judgment and sentence be preserved and included in the transcript. Therefore, we must hold the appeal in abeyance, remand the cause to the trial court for entry of the required judgment, and thereafter reinstate the appeal upon receipt of a supplemental transcript containing a proper judgment. State v. Shipman, 560 S.W.2d 603 (Mo.App.1978); State v. Asberry, 553 S.W.2d 902, 903(2) (Mo.App.1977); State v. Pogue, 552 S.W.2d 75, 76 (Mo.App.1977). See also State v. Skaggs, 248 S.W.2d 635, 638(9-14) (Mo.1952); State v. Vinson, 337 Mo. 1023, 1027-28, 87 S.W.2d 637, 640(8) (1935).

It is so ordered.

BILLINGS, C. J., and HOGAN, TITUS and FLANIGAN, JJ., concur.


author: COOPER, Justice.

text:
    Robert ANTHONY, Petitioner, v. J. T. and Gerald TIDWELL, Respondents.
    Supreme Court of Tennessee.
    Dec. 27, 1977.
    John S. Porter, Burch, Porter & Johnson, Memphis, for petitioner.
    Charles S. Kelly, Kelly & Dearing, Dyers-burg, for respondents.
   OPINION

COOPER, Justice.

This case presents the question of whether the defense of the statute of frauds may be raised by a motion to dismiss for failure to state a claim brought under T.R.Civ.P. 12.P2(6).

The plaintiffs J. T. Tidwell and Gerald Tidwell filed a complaint in which they asserted that they had entered into an oral contract with defendant Robert Anthony to purchase one hundred head of cattle at a price of $500.00 each, and that they delivered to Anthony a check for $1,000.00 “as earnest money or good faith money towards the purchase of the . . . cattle.” The plaintiffs further alleged that the defendant refused to sell the cattle to the plaintiffs pursuant to the alleged contract, subsequently selling the cattle in question to defendant Lofton, and prayed that the court compel the defendant either to perform the contract, or to compensate them for the damages they had suffered from the alleged breach of contract. The defendants did not file an answer, but moved to dismiss the complaint for failure to state a claim upon which relief could be granted under T.R.Civ.P. 12.02(6), asserting, inter alia, that the contract alleged in the complaint was unenforceable under the provisions of T.C.A. § 47-2-201. This statute provides, in pertinent part, as follows:

(1) Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars ($500) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought .
******
(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable
(a) if the goods are to be specifically manufactured for the buyer .
(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or
(c)with respect to goods for which payment has been made and accepted or which have been received and accepted .

In opposition to the motion to dismiss, plaintiffs submitted several affidavits which tended to prove the allegations in their complaints. With the record in this state, the chancellor sustained the motion to dismiss. The Court of Appeals reversed, with one judge dissenting. Robert Anthony petitioned this court for the writ of certio-rari, which was granted.

The majority of the Court of Appeals held that an affirmative defense, such as the statute of frauds, may not be raised by a motion to dismiss for failure to state a claim upon which relief can be granted under T.R.Civ.P. 12.02(6), but may only be raised in the defendant’s answer, or by subsequent motion supported by affidavits. In this the Court of Appeals was in error. A complaint is subject to dismissal under rule 12.02(6) for failure to state a claim if an affirmative defense clearly and unequivocally appears on the face of the complaint. It is not necessary for the defendant to submit evidence in support of his motion when the facts on which he relies to defeat plaintiff’s claim are admitted by the plaintiff in his complaint. White v. Padgett, 475 F.2d 79 (5th Cir. 1973); Berry v. Chrysler Corp., 150 F.2d 1002 (6th Cir. 1945); 5 Wright and Miller, Federal Practice and Procedure § 1357 at 605 et seq. Compare Hixson v. Stickley, 493 S.W.2d 471 (Tenn.1973) and Carrier v. Knapp, 442 F.2d 422 (3d Cir. 1971), where the basis of the defense did not appear clearly in the complaint.

In the instant case, according to the allegations of the complaint, the contract entered into by plaintiffs and defendants was oral and was in the amount of $50,000.00. Such a contract is unenforceable under T.C.A. § 47-2-201, and a complaint based on the contract is subject to being dismissed on motion, except in those instances where there are allegations in the complaint which bring the contract within one or more of the exceptions to the statute of frauds. The only allegation that possibly could be construed as bringing the contract within the statutory exceptions is the allegation that plaintiffs delivered a $1,000.00 check to the defendants “for the good faith purchase of the cattle.” If the payment were made for the purpose alleged, and we must assume that it was in reviewing the chancellor’s action on a rule 12 motion, it could constitute a partial payment within the meaning of T.C.A. § 47-2-201(3)(c) and plaintiffs would be entitled to enforce the oral contract, but only to the extent of the payment made. In re Augustin Bros. Co., 460 F.2d 376 (8th Cir. 1972); Bagby Land & Cattle Co. v. California Livestock Commission Co., 439 F.2d 315 (5th Cir. 1971); Sparing v. Fairmont Foods Company, 424 F.2d 337 (7th Cir. 1970); U.C.C. § 2-201, Comment 2.

It follows that the chancellor properly dismissed the complaint in so far as it sought enforcement of the entire contract, but was in error in denying plaintiffs the opportunity of proving the partial payment, as alleged, and of enforcing the contract to the extent of the down payment.

In dicta, the majority of the Court of Appeals stated that, since the plea of the statute of frauds implicitly admits the existence of an oral contract, it may not be raised by a party who denies that a contract was made. They further stated that such an implicit admission of the existence of an oral contract renders the contract enforceable to the extent admitted under the provisions of T.C.A. § 47-2-201(3)(b). However, as noted by the dissenting opinion in the court below, even assuming that a plea of the statute of frauds and a denial of a contract are inconsistent defenses, both may be advanced by a party under T.R. Civ.P. 8.05. Furthermore, technical admissions of this nature, made solely in connection with a motion to dismiss, do not necessarily constitute admissions chargeable to the party for the purposes of the litigation as a whole. See, e. g., M. Snower & Co. v. U. S., 140 F.2d 367 (7th Cir. 1944).

Accordingly, the judgment of the Court of Appeals is reversed, and the complaint is dismissed in so far as it seeks enforcement of the contract as a whole. The case is remanded to the chancellor for further proceedings not inconsistent with this opinion. The costs will be divided between the parties.

HENRY, C. J„ and FONES, BROCK and HARBISON, JJ., concur.


author: PARROTT, Presiding Judge (E.S.)

text:
    GENERAL PORTLAND, INC., Appellee, v. CHATTANOOGA-HAMILTON COUNTY AIR POLLUTION CONTROL BOARD et al., Appellants.
    Court of Appeals of Tennessee, Eastern Section.
    April 2, 1976.
    Certiorari Denied by Supreme Court Oct. 4, 1976.

      James F. Turner, Josiah Baker, Chattanooga, for appellants.
    Stophel, Caldwell & Heggie, Chattanooga, for appellee.
   OPINION

PARROTT, Presiding Judge (E.S.)

Purportedly acting pursuant to the Tennessee Air Quality Act (T.C.A. 53-3408— 53-3422) and particularly T.C.A. 53-3422, the County Council of Hamilton County enacted the Hamilton County Air Pollution Control Regulation. The purpose of the regulation as stated in Section 1-B is “to provide a program of air pollution prevention, abatement, and control.”

This regulation created the Chattanooga-Hamilton County Air Pollution Control Board and a Bureau of Air Pollution Control. The administration of the air pollution control regulation is the overall duty and responsibility of both bodies.

T.C.A. 53-3422 provides in pertinent part:

Any municipality or county in this state may enact, by ordinance or resolution, air pollution control regulations not less stringent than the standards adopted for the state pursuant to §§ 53-3408— 53-3422. However, before such ordinances and regulations shall become effective, such municipality or county must apply for and receive from the board an exemption .

Section 9, Rule 12 of the Hamilton County Air Pollution Control Regulation is as follows:

Rule 12 — Regulation of Odors in the Ambient Air
Rule 12.1. An odor will be deemed “objectionable” when 15 percent or more of the people exposed to it believe it to be objectionable in usual places of occupancy based on a sample size of at least 20 people or if fewer than 20 people are exposed, when a minimum of three people exposed to it believe it to be objectionable.
Rule 12.2. No person shall cause, suffer, allow or permit emission such as to cause an “objectionable” odor on or adjacent to residential, recreational, institutional, retail sales, hotel or educational premises.
Rule 12.3. No person shall cause, suffer, allow or permit emission such as to cause an “objectionable” odor on or adjacent to premises other than those listed in Rule 12.2 unless air containing such odorous matter is diluted with four or more volumes of odor-free air.

In December of 1971, the Chattanooga-Hamilton County Air Pollution Control Bureau served notice on General Portland Cement Company, Signal Mountain Portland Cement Division (now General Portland, Inc.) charging that on the 4th, 12th, and 17th of November that company “did cause, suffer, allow, or permit emission such as to cause an objectionable odor from your plant on Suck Creek Road,” in violation of Section 9, Rule 12.

At the conclusion of the hearing on the charges, the Board found General Portland in violation of the regulation. The Board ordered “General Portland Cement Company to cease and desist all operations at the Signal Mountain Portland Cement Division in Hamilton County effective 12:00 noon, December 15, 1971 unless prior thereto a corporate surety bond in the amount of $10,000.00 payable to Hamilton County Tennessee is posted with the Chattanooga-Hamilton County Air Pollution Control Board, said bond to be with a corporate surety in a form acceptable to the Board. Forfeiture to be conditioned upon any further violation of the provisions of the Section 9, Rule 12 of the County Regulation.” Portland posted the specified bond, conditioned as directed by the Board, on December 15, 1971.

It appears that the odor emitted was attributable to sulphur compounds which were discharged from Portland’s smokestacks as a result of burning coal, that contained sulphur. As the learned chancellor found in a careful and thorough memorandum opinion, the record shows that after extended and expensive research and development, Portland perfected monitoring systems which effectively measured and controlled the quantity of hydrogen sulfide (⅞ S) and sulphur dioxide (SO2) emitted. Apparently those systems properly performed that function from December 15,1971, until January 26, 27 and 28 of 1974.

On February 11, 1974, the Board gave Portland notice charging that on January 26, 1974, from about 7:00 a. m. until noon, on January 27, 1974, from about 3:00 p. m. until 7:00 p. m., and on January 28, 1974, from about 6:00 a. m. until 10:00 a. m., “. . . you did cause, suffer, allow or permit emission such as to cause an objectionable odor from your plant on Suck Creek Road, Hamilton County, Tennessee” in violation of Section 9, Rule 12, of the Hamilton County Air Pollution Control Regulation. Following hearings on March 4, 1974, and April 1, 1974, the Board found Portland had violated the regulation on January 26 and 28, 1974, as charged in the notice, but had not violated it on January 27, 1974. The Board’s order, entered April 5, 1974 nunc pro tunc for the 1st day of April, “ORDERED that Special Counsel for the Chattanooga-Hamilton County Air Pollution Control Board be, and hereby is, instructed, after consultation with the County Attorney for Hamilton County, to institute appropriate legal action for forfeiture upon the bond previously posted with the Bureau.”

Accordingly, the Board’s counsel and the County Judge of Hamilton County filed suit in the chancery court of that county on April 22,1974, against Portland and Travelers Indemnity Company seeking forfeiture of the above-mentioned $10,000.00 bond which had been filed by the defendants on December 15, 1971.

On May 30, 1974, Portland petitioned the Chancery Court of Hamilton County for, and was granted, writs of certiorari and supersedeas to review the Board’s decision and order seeking forfeiture of the bond.

After considering the record of the proceedings before the Board, the chancellor held the Board was without authority to require the posting of a bond and declared same null and void ab initio. Also, the chancellor held Section 9, Rule 12 of the Hamilton County Air Pollution Control Regulation to be in violation of the Fourteenth Amendment of the United States Constitution and Article 1, Section 8 of the Constitution of the State of Tennessee.

The Chattanooga-Hamilton County Air Pollution Control Board has appealed from the chancellor’s decree.

We agree with that part of the chancellor’s decree which finds the Board did not have express or implied authority to require General Portland to post the $10,-000.00 bond. Further, we believe, as the chancellor did, that it was proper to cancel the bond and relieve General Portland of any financial obligation imposed thereby.

Administrative agencies have only such power as is granted them by statute, and any action which is not authorized by the statutes is a nullity. Pharr v. Nashville, C. & St. L. Ry., 186 Tenn. 154, 208 S.W.2d 1013 (1948); Tennessee-Carolina Transportation, Inc. v. Pentecost, 206 Tenn. 551, 334 S.W.2d 950, 953 (1960); Boyce v. Williams, 215 Tenn. 704, 389 S.W.2d 272 (1965); 1 Am.Jur.2d, Administrative Law, Sec. 70.

The Tennessee Air Quality Act expressly provides that violations of the Act are to be punishable by a fine of not less than $50.00 nor more than $1,000.00, with each day of violations being a separate offense. Upon a determination that a violation constitutes a public nuisance, such nuisance may be abated as provided by the general law. T.C.A. 53-3419. The Act, by Sec. 3418, provides the right to institute a civil action for in-junctive relief to prevent any violation of a rule, regulation or order promulgated under the Act. A reading of the Act clearly shows the only enforcements for violations applicable to this case are: a fine, an action to abate a nuisance, or an action for an injunction. These methods being the only ones allowed by the Act, all others must be considered as being illegal. By no stretch of the imagination can these provisions of the Act be logically construed to authorize the exacting of bond as was done in this case or the forfeiture of the bond.

It is not arguable that the provisions of Sec. 3422, permitting “regulations not less stringent than standards adopted by the state . . . ” empower the Board to require the posting of a bond for a violation. The “less stringent” requirement clearly pertains to “standards” and not to penalties or enforcement methods.

An administrative agency such as this board has no inherent or common law powers. Being a creature of statute, it can exercise only those powers conferred expressly or impliedly upon it by statute. In this absence of statutory authority, administrative agencies may not enforce their own determinations. Administrative determinations are enforceable only by the method and manner conferred by statute and by no other means. The exercise of any authority outside the provisions of the statute is of no consequence. Tennessee Transportation, Inc. v. Pentecost, supra; Pharr v. Nashville, C. & St. L. Ry., supra; 2 Am.Jur.2d, Administrative Law, Secs. 70 and 506.

Our determining the Board did not have authority to require the posting or forfeiture of the bond is depositive of the real issues in this case. Therefore, it is unnecessary to address the asserted constitutional question.

It is well settled that a court will not pass on the constitutionality of a statute, or any part of one, unless it is absolutely necessary for the determination of the case and of the present rights of the parties to the litigation. State v. Murray, 480 S.W.2d 355 (Tenn.1972); West v. Carr, 212 Tenn. 367, 370 S.W.2d 469 (1963); State v. National Optical Stores Co., 189 Tenn. 433, 225 S.W.2d 263 (1950).

Applying the above rules, we affirm only that part of the chancellor’s decree cancel-ling and holding null and void the bond.

Let the costs incident to this appeal be taxed to the appellant.

GODDARD, J., and DAVIS, Special J., concur.

      . T.C.A. 53-3416 permits the commissioner of public health, with the concurrence of the technical secretary and approval of the governor, to issue an emergency order to discontinue immediately the emission of air contaminants.
      T.C.A. 53-3423—any city, town or county having a population of 600,000 or more (federal census 1960 or subsequent census) is authorized to enact ordinances or regulations not less stringent than the provisions of the Tennessee Air Pollution Control Act punishable as misdemeanors.


author: NEARN, Judge.

text:
    NORTON CREEK COMMUNITY ASSOCIATION, Appellee, v. RODMAN CORPORATION, Appellant.
    Court of Appeals of Tennessee, Western Section.
    Oct. 6, 1977.
    Certiorari Denied by Supreme Court Jan. 9, 1978.
    Edward M. Ellis, Knoxville, for appellant.

      W. Keith McCord, Knoxville, for appellee.
   NEARN, Judge.

The complaint filed below was frivolous and this appeal is frivolous. Sua sponte we invoke T.C.A. § 27-124.

In this cause a judgment was heretofore rendered against Rodman Corporation in the amount of $52,000.00. Appeal was taken to this Court where the judgment was affirmed. A petition for certiorari was denied by the Supreme Court on July 6, 1976.

On August 26,1976, the following “pleading” was filed in the Chancery Court for Sevier County using the same cause number as the case in which the $52,000.00 judgment was rendered:

Comes the defendant, Rodman Corporation, and shows to the Court that the proceeding by which a judgment resulted against the Corporation is void from the beginning because the defendant was denied an adequate opportunity to prepare its defense.
WHEREFORE, the defendant requests that the Court set aside the judgment and set the matter for full and final hearing.

A motion to dismiss was filed by the Norton Creek Community Association on the following grounds:

1. The alleged “complaint” fails to state a claim upon which relief can be granted in this cause.
2. The Court does not have jurisdiction over the subject matter in this cause, the Court having previously entered a final judgment in this cause more than thirty (30) days prior to the filing of the complaint; the matter having been appealed to the Court of Appeals by defendant from which the Court of Appeals affirmed this Court’s final judgment; and the defendant having further filed a petition for writ of certiorari to the Supreme Court of Tennessee and the same having been denied. The judgment in this cause is final and binding upon the defendant and cannot now be attacked in this cause.
3. The alleged “complaint” fails to comply with Rule 9 of the Tennessee Rules of Civil Procedure.
4. The alleged “complaint” shows on its face that it is frivolous.
5. The alleged “complaint” is an improper method of attacking a final judgment under the Tennessee Rules of Civil Procedure.

Counsel for Rodman filed a pleading styled and as follows:

MOTION TO RECUSE
Comes the defendant, Rodman Corporation, and moves the Honorable James Jarvis, to recuse himself from any further hearings in this cause for the following reasons:
(1) The trial judge has personal knowledge of disputed evidentiary facts concerning the proceeding. More particularly, the trial judge has personal knowledge of facts disclosed to him at a time prior to the hearing in this cause relating to the defendant’s “voluntary” waiver of legal time limits in order to permit an expedited hearing. [Rule 43, Supreme Court Rules, Canon 3(C)(1)(a)]
(2) The trial judge is likely to be a material witness in the proceeding. More particularly, the trial judge can testify as to the magnitude of the litigation, the time consumed in litigation, the relative degree of preparation by the parties and the time over which the preparation occurred, the difficulty experienced by the defendant in presenting its case, the issues presented for hearing and as to the Special steps taken by the trial judge to assist the defendant in its defense. [Rule 43, Supreme Court Rules, Canon 3(C) (D(d)(iv)]
(3) The trial judge was an intimate part of the procedure by which the defendant was required to defend itself which is the subject of the collateral attack filed in this proceeding. [Rule 43, Supreme Court Rules, Canon 3(C)(1) and Rule 48, Supreme Court Rules, Cannon 3(A)(4)]

Upon the hearing of arguments the Trial Court overruled the motion to recuse and granted the motion to dismiss.

The Assignments of Error are:

1. The Trial Court erred by refusing to recuse himself in the Rule 60 proceeding.
2. The Trial Court erred in sustaining the motion to dismiss.

We have before us the technical record only. There accompanied the technical record papers styled “Transcript of Hearing on Motion”. If it is supposed to be a Bill of Exceptions it is not signed by the Trial Judge and in no manner complies with T.C.A. §§ 27-109, 110. We do not consider it.

No error appears on the face of the record.

The judgment below is affirmed.

All Court costs in this Court are adjudged against appellant and surety and execution for same shall issue from this Court.

The case is remanded to the Chancery Court where the Chancellor shall adjudge all of appellee’s expenses, including reasonable attorney fees, incident to this appeal and award judgment therefor against appellant.

Honorable William H. Inman, by designation of the Supreme Court of Tennessee, took part in the hearing of this appeal in the absence of Presiding Judge C. S. Carney.

MATHERNE, J., and INMAN, Special J., concur.