text:
    Wayne BAUMSTARK, Plaintiff-Appellant, v. Elizabeth JORDAN, Defendant-Respondent.
    No. 37337.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 17, 1976.
    O. J. Mundwiller, Hermann, McQuie & Deiter, Montgomery City, for plaintiff-appellant.
    Jenny, Cole & Eckelkamp, James A. Cole, Joseph M. Ladd, Union, for defendant-respondent.
   McMILLIAN, Judge.

Plaintiff appeals from a judgment of the Circuit Court of Gasconade County granting summary judgment in his action for specific performance of a contract for the sale of land. The decision of the trial court refusing specific performance was premised on a finding that the contract contained a liquidated damages clause providing an agreed upon alternative to respondent’s conveyance of the land. The contract was found to be unambiguous as a matter of law. Appellant rejected respondent’s tender of $1,000 in compliance with the contractual provision as interpreted. Appellant contended at the trial level and on appeal that the contractual provision for liquidated damages was intended as a remedy simply for breach of the express time-of-the-essence condition of the contract and, therefore, was supplemental to specific performance or at least that the provision rendered the contract ambiguous so as to require extrinsic evidence to establish the parties’ intent.

In the trial court, the respondent filed a counterclaim alleging undue influence and fraud in the formation of the contract. The trial court’s entry of a summary judgment dealt solely with the issue of contractual interpretation. Action on respondent’s counterclaim was expressly continued pending appellant’s appeal.

Although not raised by either party, the principal issue on this appeal is the procedural one as to whether the decision of the trial court is a final judgment for purposes of appeal. We reach this issue because it is the duty of the appellate court to order dismissal sua sponte if the judgment is not final, Federal Deposit Insurance Corporation v. Crismon, 516 S.W.2d 57, 58 (Mo.App.1974) and Coonis v. Rogers, 413 S.W.2d 310, 313 (Mo.App.1967).

The general rule of finality of judgment requires that the judgment to be final must dispose of all parties and all issues in the case, Federal Deposit Insurance Corporation v. Crismon, supra, at 58 and Barton v. City of Ellisville, 504 S.W.2d 202 (Mo.App.1973). An order disposing of the principal claim but not counterclaims in a case is generally not considered final, Bennett v. Wood, 239 S.W.2d 325, 327-328 (Mo.1951) and Farmers Mutual Hail Insurance Company v. Garnand, 238 S.W.2d 437, 438 (Mo.App.1951). An exception to this general rule is recognized when a judgment is entered on one of a number of claims arising out of the same transaction, occurrence or subject matter if the trial court specifically designates that the judgment is deemed final for purposes of appeal, Rule 82.06, V.A.M.R. This exception does not appear applicable to the present case because the record reveals no such specific designation, cf. Dotson v. E. W. Bacharach, Inc., 325 S.W.2d 737, 739 (Mo.1959). We are also unconvinced that such a procedure would be appropriate in the context of a mutually exclusive claim and counterclaim as involved here.

A corollary to the general rule of finality allows characterization of a judgment as final where the decision on one claim implicitly disposes of the other claims, Glick v. Glick, 372 S.W.2d 912, 915 (Mo.1963) and cf. Custom Control Manufacturer, Inc. v. Matney & Co., Inc., 480 S.W.2d 321 (Mo.App.1972) and Franken v. Carpenter, 364 S.W.2d 15 (Mo.App.1963). Respondent argues that the trial court’s interpretation of the contract was not an implicit recognition of the existence of a contract so as to dispose of respondent’s counterclaim because respondent has always made its claims of undue influence and fraud expressly alternative to its suggested interpretation of the contract. We are, however, unable to follow the logic of the respondent. We cannot understand how the trial court could expressly limit the appellant to what it determined to be a contractually provided alternative remedy to specific performance if the same court might find that a contract did not exist because the product of the undue influence and fraud. The trial court’s decision can, therefore, only be viewed as an implicit rejection of respondent’s contract formation defenses. It is, however, difficult to characterize the trial court’s ruling as an implicit disposition of respondent’s counterclaim in this situation where the trial court explicitly continued the counterclaim pending appeal. Thus the confused state of the litigation develops. It would be futile for this court to treat the trial court’s ruling on appellant’s action as final, affirm the trial court’s interpretation of the contract and then have the trial court determine that a valid contract never existed because it was the product of fraud and undue influence.

Appeal dismissed as premature.

WEIER, P. J., and RENDLEN, J., concur.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    Johnny TRICE, Movant, v. STATE of Missouri, Respondent.
    No. 37730.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 17, 1976.

      Susman, Schermer, Wilier & Rimmel, Leonard Komen, St. Louis, for movant.
    John C. Danforth, Preston Dean, Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   GUNN, Judge.

Movant pleaded guilty to first degree murder. He subsequently filed a Rule 27.26 motion to set aside the guilty plea, claiming that ineffective assistance of counsel rendered his plea involuntary. After extensive hearing, the trial court denied movant’s motion and he has appealed.

On appeal, movant raises the single issue that the assistance of his trial counsel was ineffective for the reason that his counsel failed to advise him of his right to challenge the psychiatric report declaring movant sane at the time of the commission of the murder and competent to proceed to trial. Movant contends that his co-counsel ordered a psychiatric examination but failed to pursue a challenge to the medical report; that as a consequence movant received ineffective assistance of counsel and his ultimate plea of guilty was not knowingly or voluntarily made. Movant’s contention in the illumination of the circumstances is chimerical.

Movant murdered a drugstore proprietor in the course of a robbery. He was charged with first degree murder and represented by two counsel. After conferring, investigating and reviewing the evidence, mov-ant’s counsel had a presentiment that prospects for successful defense were not sanguinary — a sentience concurred in by mov-ant. The ploy of strategy decided upon was to seek a psychiatric examination for mov-ant, hopefully to establish his mental incompetency to stand trial. Such an examination was ordered and given, with the results inimical to movant’s best interests. After the disquieting results of the examination, the movant was daunted and of the opinion that the gas chamber was ineluctable. Although movant’s counsel sought a second mental examination, before it was taken, movant pleaded guilty to murder first degree. Although movant contends that his counsel did not advise him he could challenge the mental examination or pursue a further examination, the record shows otherwise. Movant’s trial counsel, after reviewing the report, were also convinced of movant’s competency to stand trial and of the fact that a plea of guilty was knowingly and voluntarily made. It is also manifest that movant’s trial counsel did not coerce movant into pleading guilty but only laid the alternatives before him.

The 27.26 record further indicates that movant palpably knew what he was doing when he pleaded guilty, for his plan was to escape from losing his life. At the Rule 27.26 hearing, movant reasserted that his initial plea was knowingly and voluntarily made, and his attack in this appeal is thus too feeble to succeed:

“Q. . . . Didn’t you know what you were doing when you pleaded guilty?
A. [movant] When I said that I was afraid I would lose my life I had no other alternative but to plead guilty in order to stay alive so I guess you would say yes, I knew what I was doing so I guess you would say that.
Q. When you stood there and told and pleaded guilty you knew you were pleading guilty, did you not?
A. I guess you could say that.
Q. Well, what did you think you were doing?
A. Pleading guilty.
* * * * * *
Q. One thing, Mr. Trice. When it came to deciding to plead guilty your’re the one that made that decision, did you not?
A. That’s correct.”

There are numerous reasons for affirming the trial court’s ruling against movant’s 27.26 motion that he received ineffective assistance of counsel:

1) While movant stated that he was not advised that he could challenge the psychiatric report or that his counsel did not pursue an additional report, the trial counsel’s testimony refutes this contention. The credibility of the witnesses is left for the trial court’s determination. McLarty v. State, 536 S.W.2d 173 (Mo.App.1976); Dean v. State, 535 S.W.2d 301 (Mo.App.1976). The trial court was not in error in believing movant’s trial counsel.

2) “Since the results of the examination indicated movant to be mentally competent, counsel chose not to contest the report and decided to advise his client to plead guilty. There is no indication that counsel doubted either defendant’s competency or the validity of the report. While movant urges that counsel should have challenged the report, no such duty is imposed on a defense attorney.” Shubert v. State, 518 S.W.2d 326, 328 (Mo.App.1975), (emphasis added).

3) Movant’s counsel was under no duty to advise movant of all his rights upon a plea of guilty, nor is counsel under a duty to advise his client of his right to challenge a psychiatric examination, particularly under the circumstances of this case. Therefore, even had movant’s counsel not advised him of his right to challenge the psychiatric examination report—which they in fact did—such failure would not have been ineffective assistance of counsel. See Baker v. State, 524 S.W.2d 144 (Mo.App.1975); Shubert v. State, supra.

4) The record is clear from the interrogation of the movant at the 27.26 hearing that his plea of guilty was knowingly and voluntarily made and that movant was acutely aware of his action; hence, challenge to the mental competency report would be unavailing, and no basis existed to assert incompetency of counsel for failure to challenge the report or pursue another. The trial court’s finding that movant was mentally competent to plead guilty was thereby not clearly erroneous. Sears v. State, 536 S.W.2d 923 (Mo.App.1976); Clay v. State, 532 S.W.2d 216 (Mo.App.1975); Brown v. State, 530 S.W.2d 56 (Mo.App.1975); Yates v. State, 528 S.W.2d 168 (Mo.App.1975); Parsons v. State, 528 S.W.2d 162 (Mo.App.1975); Boyer v. State, supra.

5) Through the efforts of movant’s trial counsel, movant was given a mental examination which showed him competent to stand trial. The failure of movant’s counsel to proceed further on this line of attack was not dereliction of duty where the evidence on the question was persuasive that movant was competent to proceed. Davis v. State, 517 S.W.2d 97 (Mo.1974).

Movant has failed in his essential proof by a preponderance of evidence that there was a manifest injustice in failing to set aside his guilty plea in this case. Bonner v. State, 535 S.W.2d 297 (Mo.App.1976).

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . See Boyer v. State, 527 S.W.2d 432 (Mo.App.1975), for a discussion of psychiatric examination anent insanity at the time of the criminal act and competency to stand trial.

      . Movant’s appeal counsel, in view of the record, had naught to do but pursue such an approach.

      . Movant’s plea was in 1970 — pre-Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, rehearing den. 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 163, 164 (1972).

      . “Q. [movant’s 27.26 counsel] Did you discuss with Mr. Trice whether or not he could challenge this report and seek additional examinations or have a hearing on the matter?
      A. [movant’s trial counsel] We — the answer to that whole question is yes as a whole. We— and in fact we did file for a motion for a second psychiatric examination.”

      . Fear of death penalty does not vitiate a guilty plea. Johnson v. State, 519 S.W.2d 731 (Mo.App.1975).


text:
    Otis JACKSON, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 37049.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 17, 1976.
    Hayes & Heisler, Daniel B. Hayes, Clayton, for plaintiff-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for defendant-respondent.
   GUNN, Judge.

After full hearing and a comprehensive opinion, the trial court ruled adversely to defendant on his Rule 27.26 motion for post conviction relief, and defendant has appealed. We find no error and affirm the judgment of the trial court.

Defendant was convicted of the first degree murder of Eugene Helm, and the judgment of conviction was affirmed on appeal in State v. Jackson, 511 S.W.2d 771 (Mo.1974), which details the facts giving rise to defendant’s conviction. It is enough to state that defendant shot Helm with a rifle, and Helm bled to death from a wound in his hip.

The thrust of defendant’s Rule 27.26 motion is inadequate assistance of counsel, and we find defendant’s position in this regard to be untenable. Defendant asserts that his trial counsel failed to elicit from him that Helm had a reputation for violence. The evidence was that defendant’s trial counsel did make inquiry of several people whether Helm had the nature of causing any trouble or had been in any fights. The response to the trial counsel’s investigation was negative. While defendant urges that he advised his trial counsel that Helm had a reputation for bellicosity, the trial counsel testified at the 27.26 hearing that although the defendant was specifically asked, the defendant never indicated that Helm had a reputation for violence. We recognize that inquiry into the general reputation of a decedent for turbulent disposition is legitimate. State v. Maggitt, 517 S.W.2d 105 (Mo. banc 1974). But according to defendant’s trial counsel, after investigation and inquiry, such a line of attack would have been fruitless. The trial court resolved the conflict between defendant and his trial counsel in the latter’s favor, and we defer to the trial court’s finding. Dean v. State, 535 S.W.2d 301 (Mo.App.1976); Floyd v. State, 518 S.W.2d 700 (Mo.App.1975).

Defendant also attacks the action of his trial counsel: a) in failing to impeach the testimony of an eyewitness to the shooting; b) in failing to obtain expert testimony regarding the characteristics of the rifle utilized by defendant and the fact that it was deliberately aimed low to hit Helm in the hip rather than some other vital part of the body; 3) in failing to argue to the jury that defendant aimed low to halt, rather than kill Helm. None of these charges is availing for defendant. According to defendant’s trial counsel his investigation revealed no contradictions of the eyewitness worthy of impeachment, and, furthermore, argument was made to the jury that defendant had deliberately aimed low to avoid inflicting a fatal wound; that after full consideration, it was determined that no need existed for bringing in an expert witness regarding the structure of the gun and the fact that it would have had to have been intentionally aimed low in order to inflict the hip wound. Under the circumstances, the question of impeachment and of obtaining a gun expert were matters of trial strategy and technique, which will not serve as a basis for ineffective assistance of counsel. Haynes v. State, 534 S.W.2d 552 (Mo.App.1976).

Defendant argues that his trial counsel failed at trial to make objection or move for mistrial during portions of the prosecutor’s argument to the jury. This matter was specifically covered by the Supreme Court in State v. Jackson, supra, and it was held, in spite of defendant’s contentions of plain error on the appeal of his trial conviction, that the prosecutor’s “argument was based upon matters in evidence and does not afford any grounds for concluding that substantial rights of appellant [defendant] were infringed.” Id. at 775-76. We need not consider this point further, except to state that the fact that there was a failure of objection or request for mistrial is not a basis for ineffective assistance of counsel unless there has been a substantial deprivation of the movant’s right to a fair trial. McConnell v. State, 530 S.W.2d 43 (Mo.App.1975). Defendant was not deprived of a fair trial in this case.

In his pro se 27.26 motion, defendant alleges as proof of ineffective assistance of counsel that his trial counsel was so overwhelmed and discomfited by his inept performance that he was “driven into an infantile hysterical tantrum which was tantamount to a disturbed child eluding a bully but exclaiming his humiliation while doing so as the Defense Counselor climaxed his unskilful performance with a serious series of ambidexterous arm swings and an audible rhythmical cresendo of, (quote) ‘Fiddle Sticks, Awe Poot’, (unquote) repetitiously.” At the hearing on the 27.26 motion, defendant’s trial counsel scoffed at the suggestion that his efforts left him with naught to say but “Fiddle Sticks, Awe Poot,” and denied that such comment was within his exclamatory lexicon. The trial court agreed with defendant’s trial counsel, and we defer to the trial court’s finding in this regard. Dean v. State, supra.

Finally, defendant urges ineffective assistance of counsel for the reason that his trial counsel was unable to locate a witness known only as “Porky.” The record is clear that defendant’s trial counsel made noble attempt to locate Porky and interviewed numerous witnesses in a futile effort to locate him. The best that could be determined was that Porky was somewhere in Arkansas. Defendant’s trial lawyer’s failure, after valiant effort, to locate someone named Porky in the Razorback State did not amount to ineffective assistance of counsel, particularly, as it developed, Porky was not even a witness to the brouhaha leading to Helm’s death. See Williams v. State, 536 S.W.2d 190 (Mo.App.1976).

After careful consideration of the transcript, briefs and authorities, we are convinced that the judgment denying defendant’s 27.26 motion is not clearly erroneous; that no error of law appears.

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Leonard HALE, Appellant.
    No. 37168.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 17, 1976.
    Thomas J. Prebil, Mary Louise Moran, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant guilty of second degree burglary and the court sentenced him to five years’ imprisonment. On appeal defendant challenges the sufficiency of the state’s evidence.

Christmas day, 1974, while waiting for a bus near the downtown St. Louis Woolworth store, John Patton noticed its front door had been broken in. He saw a man, distinctively dressed and carrying a brown paper bag, hurry past and board a bus. Mr. Patton notified police who found in the store a broken display case that had contained watches. The police radioed a description of the man as related by Mr. Patton and other policemen stopped a bus eight blocks away and found defendant, one of two passengers, seated beside a paper bag containing 75 watches, later identified as Woolworth’s property. At the store, and again at trial, Mr. Patton identified defendant as the man he had seen carrying the bag and boarding the bus.

Defendant contends on appeal the state’s evidence did not show there had been a break-in of the store or, if so, that defendant had done it.

Evidence showed the store had been burglariously entered. Defendant was quickly found to be in the exclusive, unexplained possession of the stolen property and it was further shown defendant was present at the time and place of the burglary. This was sufficient evidence to prove the charge. Compare State v. Fields, 442 S.W.2d 30[9—10] (Mo.1969).

Defendant’s principal reliance is on the circumstantial-evidence case of State v. Schleicher, 438 S.W.2d 258 (Mo.1969). There, defendant won a reversal where the only evidence was that he and another man were seen jumping from the bed of a truck which contained stolen merchandise. Unlike the present case, defendant Schleicher was not seen near the scene of the burglary nor was his possession exclusive. Schleicher is readily distinguishable. Defendant also relies on State v. Watson, 350 S.W.2d 763[l-3] (Mo.1961). That case is similarly distinguishable.

Defendant also contends for a mistrial. On one occasion his counsel had objected to the prosecutor’s remark about a matter not in evidence and on another he had objected to the prosecutor’s jury argument about the supreme court’s definition of “reasonable doubt.” In each instance the trial court sustained the defense objection and instructed the jury to disregard. Defendant has not shown how he was prejudiced in either event, and the alleged errors do not rise to a level requiring the drastic action of a mistrial. Compare State v. Camper, 391 S.W.2d 926[2-4] (Mo.1965).

Judgment affirmed.

STEWART and RENDLEN, JJ., concur.


text:
    Michael SHEPHERD, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36282.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 17, 1976.

      Huck, Kasten & LaBeaume, Herbert A. Kasten, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant Michael Shepherd has appealed from the denial of his Rule 27.26 motion to set aside a 1973 judgment. He was sentenced to concurrent twenty-five and fifteen-year terms on pleas of guilty to first degree robbery and second degree murder. The charges arose from movant’s participation in an armed robbery in which a second participant fatally shot a customer. The sentences imposed were to run concurrently, not only with each other but also concurrently with two other concurrent thirty-year sentences received in 1972 on unrelated charges. The circuit court denied the Rule 27.26 motion without an evidentiary hearing after a review of the records and transcript of the guilty plea proceeding. We affirm.

Movant first contends his pleas were coerced because of the allegedly invalid 1972 sentences. This is refuted by the record. The transcript of the present guilty plea proceeding shows these prior pleas and their possible invalidity were discussed in detail by all parties and that movant entered his pleas with full knowledge and understanding of the questionable validity. Movant’s allegations afford no basis for relief. See Tyler v. State, 496 S.W.2d 793[1] (Mo.1973) for a similar situation.

Movant’s second contention is that his pleas were involuntary because his counsel told him he would get consecutive rather than concurrent sentences if he chose to go to trial. This is also insufficient to entitle movant to relief. Counsel’s representation that a defendant faces a possible lengthy term of imprisonment if found guilty by a jury after trial does not form a basis for an evidentiary 27.26 hearing. Smith v. State, 513 S.W.2d 407[3] (Mo.1974), cert. den. 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975).

Movant was not entitled to an evi-dentiary hearing. Where the motion, files and records conclusively establish that a movant is not entitled to relief, an eviden-tiary hearing is not required under Rule 27.26. Winston v. State, 533 S.W.2d 709[8] (Mo.App.1976).

After a complete review of the guilty plea proceeding, we conclude the denial of the motion without an evidentiary hearing is not clearly erroneous as required for relief under Rule 27.26(j).

Judgment affirmed.

DOWD and STEWART, JJ., concur.


text:
    James GOODYEAR, Appellant, v. The JUNIOR COLLEGE DISTRICT OF ST. LOUIS, St. Louis County, Missouri, a Public School Corporation, Respondent.
    No. 37306.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 17, 1976.
    Paskal, Edwards, Olian & Hadican, Lawrence Permuter, Clayton, for appellant.
    Armstrong, Teasdale, Kramer & Vaughan, Frank N. Gundlach, Ed L. Noel, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff James Goodyear appeals from dismissal of his petition in quantum meruit to recover for services performed for defendant. Defendant moved to dismiss with prejudice for failure to state a claim upon which relief can be granted.

Section 432.070, RSMo 1969, states: “No . . . school district shall make any contract . . . unless the same . . shall be in writing . .” Missouri courts have uniformly interpreted this statute to preclude recovery against school districts on quantum me-ruit or any theory of implied contract. Metz v. Warrick, 217 Mo.App. 504, 269 S.W. 626[2-4] (1925); Hoevehnan v. Reorganized School District R2 of Crawford County, 452 S.W.2d 298[4-6] (Mo.App.1970).

The requirements of § 432.070 are mandatory and not merely directory. Hoevelman, supra, l.c. 301. Otherwise, the requirement that contracts subject to § 432.070 be written would be ineffective. Pfitzinger v. Johnson, 177 S.W.2d 713[7-9] (Mo.App.1944).

As the court in Miller v. Alsbaugh, 2 S.W.2d 208[4, 5] (Mo.App.1928) said, “The fact that the school district got the benefit of the work . . . does not give any right of action against the district.” When an individual seeks to contract to work for a school district without complying with § 432.070 he does so at his own risk. Metz, supra, l.c. 627.

Plaintiff contends defendant has waived immunity from suit on the basis of language in § 178.770, RSMo 1969, which says a school district “may sue and be sued.” Plaintiff has ignored the final phrase of that statute which says “except as herein otherwise provided.”

Judgment affirmed.

DOWD and STEWART, JJ., concur.


text:
    Daniel Vincent LANGIANO, Movant-Appellant, v. STATE of Missouri, Respondent.
    Nos. 37304, 37351.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 17, 1976.
    Paul M. Storment, Jr., Belleville, Ill., for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., George F. Meyer, Jr., Asst. Pros. Atty., Clayton, for respondent.
   CLEMENS, Presiding Judge.

Movant appeals denial of his motion to withdraw his guilty plea and set aside the judgment.

April 30,1975 defendant pleaded guilty to selling a controlled substance. Before accepting the plea, the trial court questioned defendant to determine the voluntariness of his plea. The court advised defendant in detail of the rights he was waiving by pleading guilty and the range of punishment. He was informed the court knew of his prior felony conviction, that no promises were being made regarding sentencing but that there would be a pre-sentence investigation. June 27, 1975 the court sentenced him to seven years’ imprisonment.

Movant acknowledged his participation in the sale of marijuana but contends his guilty plea was involuntary because he believed he would receive probation. The only evidence to support this is movant’s testimony given at his hearing. He testified his attorney told him if he pled guilty he would be placed on probation. He admitted that neither the prosecuting attorney nor the court had ever indicated he would receive probation. The court denied the motion based on movant’s lack of credibility. Considering movant’s obvious interest, the fact he did not call his lawyer to testify, and the contradictions between his testimony at the hearing and statements made when he pled guilty, we find the trial court did not abuse its discretion in disbelieving him. Blanchard v. State, 504 S.W.2d 180[1, 2] (Mo.App.1973).

We find the record shows movant’s guilty plea was voluntarily made. The trial judge did more than follow a particular procedure before accepting the guilty plea and the hearing was concerned with substance more than form. Flood v. State, 476 S.W.2d 529[3] (Mo.1972). The trial court carefully advised defendant of his rights, range of punishment, the court’s knowledge of his prior felony convictions and the lack of promises regarding sentencing. We find no error in the trial court’s denial of mov-ant’s motion.

Judgment affirmed.

STEWART and RENDLEN, JJ., concur.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Freeman DILWORTH, Defendant-Appellant.
    No. 37308.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 17, 1976.
    James C. Jones, Walter Sheata, Asst. Public Defenders, St. Louis, for defendant-appellant. .
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was convicted of operating a motor vehicle without the owner’s consent and sentenced under the Second Offender Act to five years in the custody of the Department of Corrections. Defendant contends that his conviction is based entirely upon evidence improperly seized incident to an illegal arrest in violation of his Fourth Amendment rights. This point is not, however, properly preserved for review.

From the evidence at trial, the jury could have found that on April 15, 1974 a black 1964 Chevrolet Impala automobile was stolen from Edward Steitz. The next day two policemen stopped defendant who was at that time driving Mr. Steitz’ car. Defendant had filed a motion to suppress the evidence obtained incident to his arrest, but no hearing had been requested on this motion. No specific items were listed in the motion or recounted at any other time, and no objection to any evidence was made at trial. In fact, after an offer was made by the state to introduce the ignition lock and keys with some scréw drivers found in the car, when questioned by the court defendant’s counsel replied “No objection”. Defendant’s present contention that error occurred in the admission into evidence of the automobile and some items found inside is, therefore, not properly preserved. State v. Ealey, 519 S.W.2d 314, 320[5] (Mo.App.1975).

Furthermore, plain error, Rule 27.-20(c), cannot be raised because defendant has no standing to assert an alleged illegal search of Mr. Steitz’ car. State v. Damico, 513 S.W.2d 351, 359[5] (Mo.1974).

We have concluded that the opinion in this case has no precedential value and affirm the judgment in accordance with Rule 84.16.

DOWD and CLEMENS, JJ., concur.


author: PER CURIAM:

text:
    Edna F. SIMPSON, Plaintiff-Respondent, v. The ISLAND VIEW SALES CORPORATION et al., Defendants, Henry B. Hart, Defendant-Appellant.
    No. 9982.
    Missouri Court of Appeals, Springfield District.
    Aug. 24, 1976.

      Dale H. Close, Wood & Close, Lebanon, for plaintiff-respondent.
    William Icenogle, Camdenton, for defendant-appellant.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   PER CURIAM:

Plaintiff sued to quiet title to certain Camden County real estate. All defendants, save Hart, defaulted. Hart (hereinafter defendant) answered averring, inter alia, that a recorded deed purportedly executed by him and delivered to a grantee-grantor in plaintiff’s alleged chain of title was a forgery and thus void. Based upon her chain of title, the court nisi found plaintiff to be the owner of the real estate and defendant appealed.

Defendant’s two points relied on are that the trial court erred in quieting title in plaintiff because (1) defendant “sustained his burden of establishing that the deed in question was a forgery,” and because (2) “the deed from [defendant] to [plaintiff’s predecessor] contains such an indefinite description as to make the deed void.”

Rule 84.04(d), V.A.M.R., specifies that the “points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” The requirements of the rule are mandatory and applicable to court-tried cases. Dors v. Wulff, 522 S.W.2d 325, 326-327[4] (Mo.App.1975). Abstract statements do not sate the rule because they do not isolate any reasons wherein and why an appellant claims the actions or ruling of the trial court were erroneous, and an appellate court is not obliged to seek out the missing whereins and whys by threshing the transcript on appeal or the argument section of an appellant’s brief. Matter of Estate of Langford, 529 S.W.2d 31, 32-33[4-6] (Mo.App.1975). Defendant’s points relied on are unadulterated abstractions consisting of simple conclusions standing naked of factual recitations to afford an insight as to wherein and why it is claimed defendant’s burden was sustained or the deed description was so defective as to make it void. State ex rel. State Highway Comm. v. Graeler, 527 S.W.2d 421, 425[4] (Mo.App.1975). Wherein and why defendant thinks his burden was sustained and the deed’s description was indefinite is left for us to guess and ponder. And when points are not recognizable from an appellant’s brief, courts are not willing to speculate. Butterbaugh v. Public Water Supply Dist. No. 12 of Jackson County, 512 S.W.2d 445, 447[6] (Mo.App.1974).

For many years the courts have sounded repeated caveats to appellants who ignore the rules relating to briefs by only salting them with abstractions [e. g., Scott v. Missouri Pac. R. Co., 333 Mo. 374, 389[14], 62 S.W.2d 834, 840[17, 18] (1933)], and nigh to 70 years ago Judge Lamm penned: “The rules of appellate practice ... are simple and plain. They fill no office of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. Hence, apparently, they bespeak the dignity arising from obedience. If they are not to be obeyed, they should be done away with once and for all. A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men viz., those who labor to obey it — the very ones it should not injure.” Sullivan v. Holbrook, 211 Mo. 99, 104, 109 S.W. 668, 670 (1908). While courts have long beseeched compliance with the rules amid hints of impending punishment for nonacquiescence, the practice more often was to suffer the transgression until the deluge of cases appealed threatened to overwhelm the appellate courts and forced them to declare, “Enough.” Obedience to the rules is demanded if a fair and expeditious determination is to be made of the mass of litigation inundating our courts. Cope v. McClain, 529 S.W.2d 6, 8 (Mo.App.1975).

For the reasons stated, the appeal will be dismissed.

Nevertheless, so that defendant may not proclaim his fate resulted from the employment of legal technicalities only, by way of obiter dictum we have this to say. Plaintiff claimed title through a deed that had been of record for more than 10 years and § 490.360, V.A.M.S., afforded her prima facie evidence of the genuineness thereof, i. e., “such evidence which, although not compelling a verdict for the party whose contention it supports, ‘is sufficient to satisfy the burden of proof to support a verdict in favor of the party by whom it is introduced when not rebutted by other evidence.’ ” State ex rel. State Dept. of Public Health & Welfare, Division of Welfare v. Hogg, 466 S.W.2d 167, 170[2] (Mo.App.1971). Before defendant was entitled to the exercise by a court of equity of its extraordinary power to set aside the deed, he had the burden of establishing the asserted forgery by clear, cogent and convincing evidence. Blackburn v. Spence, 384 S.W.2d 535, 539[4] (Mo.1964). When it is considered that the only evidence of forgery reposed in the testimony of defendant, who admittedly did not examine the deed records to check the signature on the deed in question, and that the trial court had leave to believe none, all or a part of defendant’s testimony [Long v. Lincoln, 528 S.W.2d 512, 513 (Mo.App.1975)], we could not conclude there was no substantial evidence to support the decree of the trial court, that it was against the weight of the evidence, or that it erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo.banc 1976); Rule 73.01, V.A.M.R. As to defendant’s second point, it suffices to say that since the issue of the deed’s description being so indefinite to make it void was not pleaded, proved nor alleged at trial (except incidentally regarding other matters), or mentioned in the post-trial motions of defendant, it may not be raised now for the first time on appeal. South Side Plumbing Co. v. Tigges, 525 S.W.2d 583, 590[17] (Mo.App.1975).

The appeal is dismissed.

All concur.


author: KELLY, Judge.

text:
    John G. RUSSELL and Vada S. Russell, Plaintiffs-Appellants, v. Francis H. RUSSELL and Hazel M. Russell, Defendants-Respondents.
    No. 36185.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 24, 1976.

      Gordon F. Webb, Edwin Patrick Harrison, Jr., Clayton, for plaintiffs-appellants.
    Richard A. Hetlage, St. Louis, for defendants-respondents.
   KELLY, Judge.

This is an appeal from a judgment of the Circuit Court of St. Louis County sustaining defendants-respondents’ Motion for a Directed Verdict at the Close of All of the Evidence and entering judgment quieting title to a nine acre parcel of land located at 8985 Dunn Road in St. Louis County in defendants-respondents. For reasons hereinafter stated, we affirm the judgment of the trial court but remand it for further proceedings to resolve issues still retained for further disposition dependent upon the outcome of this appeal.

John G. Russell and Vada Russell, the plaintiffs-appellants, are husband and wife as are Francis H. Russell and Hazel Russell, the defendants-respondents. John and Francis are brothers.

This cause of action was instituted by Jack and Sue Russell by the filing of a petition in the Circuit Court of St. Louis County, Missouri, seeking to have title to the tract of land in issue declared to be vested in them pursuant to the provisions of § 516.010 RSMo. 1969. Harold and Hazel filed an Amended Answer, on which the cause came on for trial, wherein they alleged that they had acquired title to the tract in dispute by general warranty deed of June 14, 1948, which was duly recorded in the records of the Recorder of Deeds of St. Louis County and that appellants’ possession of said tract from its inception until October 18, 1972, had been with their permission. They denied that the appellants had any right or title to the tract of land and further alleged that the appellants were, after October 18, 1972, tenants at will. They prayed that the trial court decree that the appellants had no title in the property and that the property was vested in them.

Respondents also filed a Counterclaim which they later amended. This Amended Counterclaim was in two counts. Count I sought a decree that appellants had no title to the parcel in issue, that the fee simple title was vested in the respondents and that they were entitled to possession thereof. They further prayed for an order that the appellants vacate the property and surrender it to the respondents and that they be given an order enjoining the appellants from interfering with their efforts to sell the property or from reentering same. Count II of respondents’ Counterclaim sought actual damages in the amount of $1,000.00 and $7,500.00 punitive damages by reason of the appellants’ “wilful and intended” refusal to deliver up possession of the premises.

Appellants filed a Reply to respondents’ Answer, wherein they admitted that the respondents had acquired fee simple title to the real estate in issue by the deed dated June 14, 1948 and recorded in the office of the Recorder of Deeds of St. Louis County; the family relationships and that they were in possession; they denied the remaining allegations contained therein. As to Count I of respondents’ Counterclaim, appellants after admitting the family relationships, denied that the respondents owned the property, admitted that they resided at 8985 Dunn Road, and denied the remainder of the respondents’ allegations. With respect to Count II of the Counterclaim, appellants incorporated by reference the allegations contained in their Reply to Count I and denied the remainder of the allegations.

The cause was assigned to the Equity Division of the Circuit Court of St. Louis County whereupon the appellants filed a motion to remove the cause from the equity docket and assign it to a law division so they would be afforded a jury trial. This motion was sustained but was later reconsidered on motion of the respondents and reassigned to the Equity Division, “with leave to frame issues of fact for jury determination in pre-trial proceedings.”

At a pre-trial conference the parties entered into a stipulation that there was no dispute as to the description of the property in issue; that the respondents were the grantees in a general warranty deed dated June 14, 1948, and recorded June 15, 1948 conveying to them the real estate in issue; that thereafter the respondents had not conveyed the property to any other person; that the appellants “went into occupancy” of the house on the real estate in the fall of 1948 and remain there; and that the appellants did not pay any rent to the respondents during the occupancy.

When the cause came on for trial, a jury was selected and sworn. After Instruction MAI 2.01 was read to the jury, the jury was excused for the day. Thereafter the trial court made a record wherein it stated that it had determined that the case should be tried to an advisory jury whose findings would be treated as conclusive should it later be determined that the case was one at law, or as merely advisory if it was one in equity. It was agreed by counsel and the trial court that any equitable issues would be reserved for further action by the trial court.

The next morning, after the jury had returned, evidence was adduced by the parties. No evidence, however, was adduced by either party on the equitable issues framed by the pleadings. At the conclusion of appellants’ case and again at the conclusion of all of the evidence the parties presented to the trial court motions for directed verdict, and these were overruled. After all of the evidence was concluded, in a conference out of the presence of the jury, the following took place.

“THE COURT: I want the record to show that after further conference with the attorneys we have agreed that we are taking the jury’s verdict as a disposition of the legal issues, or issues under law in the case, as though this were a case tried at law. And we are reserving for further disposition and hearing, if necessary, any matters evoking the equitable jurisdiction of the Court as set out in the pleadings or if they are set out in the pleadings in the event that the jury returns a verdict for the defendant(s).
“Have I stated our position correctly, gentlemen?
“MR. HETLAGE: Yes.
“MR. HARRISON: Yes.”

The jury was instructed, argument had, and the cause submitted to the jury on the issue of adverse possession alleged in the appellants’ petition. After almost eight hours of deliberation the jury announced that it was unable to agree upon a verdict. The trial court declared a mistrial and discharged the jury.

Thereafter the respondents filed a Motion to reconsider their Motion for Directed Verdict and Entry of Judgment at the Close of All of the Evidence and for Entry of Judgment. Appellants likewise filed a “Memorandum” in opposition to respondents’ Motion and prayed that the trial court set aside its order overruling their Motion for Directed Verdict at the Close of All of the Evidence and enter a Directed Verdict in Accordance Therewith or, in the alternative, to set the case for another trial by a jury as an action at law.

These motions were argued and submitted and after memoranda were filed by both parties, the trial court filed a memorandum and court order whereby it directed the respondents’ attorney to prepare an appropriate judgment in accordance with the memorandum of the trial court settling all issues “on the claims and counterclaims of both parties, including an alternative decree should this case be ruled to have been in equity instead of at law.”

Subsequently the trial court entered a decree overruling appellants’ pending motions and sustained respondents’ motion. The decree as entered adjudged that fee simple title to the land in controversy was vested in respondents and that the appellants have no right, claim, title or interest whatsoever in the real estate in issue. Alternatively, the trial court further decreed that if the cause be equitable in nature, that the respondents are vested with fee simple title to the real estate in issue and the appellants have no right, claim, title or interest whatsoever in the real estate in issue.

The appellants filed “objections” to this decree together with a Motion to Set Aside the Judgment and For a New Trial. Both of these motions were denied. This appeal followed.

In this court, the appellants contend that the trial court erred (1) in failing to find and rule that they were entitled to a jury trial; (2) in entering judgment in the alternative because the trial court thereby failed to determine the applicable scope of review on appeal; and (3) in granting respondents’ after-trial motion for directed verdict.

As we comprehend appellants’ first two contentions, they rely upon the alternative decree entered by the trial court and the argument that by casting its decree in the alternative the trial court said: “The case was tried to a jury, a mistrial was declared and T find that no submissible case was made and therefore judgment for the respondents.’ ” Thus, appellants’ counsel argues, the trial judge never reached the question whether appellants were entitled to a jury trial. By this procedure the trial judge has denied appellants their right to a jury trial and has also failed to settle the scope of review on appeal.

From a reading of the record we believe it is clear that the trial judge was of the opinion that the adverse possession issue was one at law and for that reason prior to submission of the case to the jury he advised counsel for the parties that he was going to be bound by the facts found by the jury on that issue. Both counsel agreed to this. While no specific order was entered to the effect that a separate trial was to be had on the quiet title part of the case as authorized by Rule 66.02, it is clear from the record that this is what was done when it was agreed that any equitable issues in the case would be reserved for further proceedings pending the outcome of the quiet title action. There were no equitable issues framed by the pleadings on this issue. Unless title was determined to be in respondents no equitable relief was sought, for unless respondents had the title as between the parties they would not be entitled to the injunctions they prayed for.

It is the settled law in Missouri that a quiet title action may be either at law or in equity according to the issues tendered by the pleadings. If the issues framed by the pleadings are basically equitable then the action lies in equity; however, where the issues are basically legal, the cause is at law and the parties are entitled to a jury trial unless they waive same. Hatton v. City of St. Louis, 264 Mo. 634, 175 S.W. 888 (Mo.1915); Stafford v. Shinabargar, 336 Mo. 856, 81 S.W.2d 626, 627[1] (1935). We believe that the trial court exercised its discretion and “in the furtherance of convenience” proceeded under Rule 66.02 to afford a separate trial by jury on the quiet title claims, reserving for later disposition those equitable issues raised in respondents’ counterclaim Count I and the damages issues — which too are legal issues — raised in Count II thereof.

Having so elected, we likewise hold that the trial court did not err in entertaining the “after trial motions” filed by both parties pursuant to Rule 72.02. This Rule provides that where a verdict was not returned following jury trial, a party, within fifteen days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict, and, simultaneously, a motion for new trial may be joined with this motion, or a new trial may be prayed for in the alternative. Both parties took advantage of this Rule, but on appeal the appellants inquire: “What is the method of decision for this court?” We respond to this question of appellants by referring to the rule that in determining whether a submissible case was made for a jury and whether the trial court erred in sustaining a defendant’s Motion for a Directed Verdict at the Close of All of the Evidence, the plaintiff is entitled to have all of the evidence reviewed in a light most favorable to its theory of the case with the defendant’s evidence being disregarded except insofar as it aids the plaintiff’s case, and that the plaintiff is to be afforded the benefit of any and all reasonable inferences to be drawn from the evidence which is not in conflict with its theory of the case. Wardenburg v. White, 518 S.W.2d 152, 154[1] (Mo.App.1975). This is the scope of review to be afforded appellants’ third point on appeal.

We find no merit in appellants’ first two points.

In moving to appellants’ third point we call attention to some basic rules of law applicable to quiet title actions where one of the parties seeks to establish title by adverse possession prior to setting forth the evidence in the case most favorable to the appellants’ theory of the case.

Adverse possession of land for the required statutory period of time and the requisite character not only bars any action brought to recover such land or an interest therein, but also extinguishes the claimant’s title and confers on the one in possession a full title in fee. Moore v. Hoffman, 327 Mo. 852, 39 S.W.2d 339, 343[14] (1931). The burden of proof as to the essential elements effective to constitute adverse possession is on the person claiming title through adverse possession. Wilton Boat Club v. Hazell, 502 S.W.2d 273, 276[5] (Mo.1973). “Where each party to a quiet title action is claiming title against the other, the burden of proof is upon the respective parties to prove better title than the other, and one party is not required to show a title good against the whole world, but only a title superior to that of the other parties; a claimant must prevail on the strength of his own title and not upon any weakness in the title of the other claimants.” Moise v. Robinson, 533 S.W.2d 234, 240[3] (Mo.App.1975). It is not a mere occupancy or possession which must be known to the true owner to establish title by adverse possession but one which is in opposition to his rights and in defiance of or inconsistent with his title. Reinheimer v. Rhedans, 327 S.W.2d 823, 830[8] (Mo.1959). The law presumes that every possession is rightful and consistent therewith; not in opposition or adverse to title and ownership. Badger Lumber Co. v. St. Louis-San Francisco Ry. Co., 338 Mo. 349, 89 S.W.2d 954, 959[1] (1936).

The evidence, viewed in the light of the principles of appellate review stated supra, was that Louise Russell was the mother of both Jack and Harold Russell. In addition to these two, she also bore two other children, Arthur C. and Dorothy R., both deceased at the time of trial. During her lifetime Mrs. Russell operated a floral shop and at divers times was helped by the children. At different times she gave portions of her estate to Arthur, Dorothy and Jack. To Arthur she gave a saloon, to Dorothy, money, and to Jack, a home. Harold took over the floral business and Mrs. Russell lived with Harold and Hazel in the family home on Kossuth Avenue in St. Louis, which Mrs. Russell conveyed to herself, Harold and Hazel. She died in 1947 and her estate was never probated because at the time of her death she had no assets. She handled her own affairs up to the time of her demise. At one point in time Mrs. Russell, Harold and Hazel joined in a deed conveying the home on Aldine Avenue to Jack and Laura Russell, his first wife, in consideration for which Jack executed a document whereby he relinquished any claim he might have on Mrs. Russell’s estate. This first marriage of Jack’s ended in divorce and he moved to Chicago, Illinois, where he married his present wife, Sue. In 1947 Jack experienced some financial difficulties and he wrote to Harold requesting that Harold lend him $200.00. Jack wrote Harold several letters bemoaning his plight and finally in one letter suggested to Harold that he, Jack, come back to St. Louis for awhile, “make a bunch of flowers and make them some money.” Early in 1948 Jack came to St. Louis and he and Harold discussed Jack’s going onto the Dunn Road property, building a house on it and raising evergreens on it. Title to the property was never discussed. He thought it was part of his mother’s estate. Jack and his family returned to St. Louis and on or about September 1, 1948, he started building a house on the Dunn Road tract. Harold paid for the lumber and material which went into the construction of this house. Jack did 95% of the labor on the construction of a three room frame house, and Harold and one of Harold’s chauffeurs did the balance. Sometime in October, 1948, Jack had a well dug at a cost of $36.00 and he paid for this. Harold paid for the pump which was placed on the well. Since then Jack has made other improvements on the tract. He has added two rooms, put in water, plumbing and some more electricity. About 15 or 16 years ago Jack built a shop, which he uses for welding and to make barbecue pits. He has farmed the property and on occasion has rented it to others to farm. He also rented a portion of the property for a concrete construction firm to park its construction equipment. He retained the rents for himself. He also permitted a policeman to erect a structure and keep his police dog on the property. In the early 1950’s Hardesty & Johnson erected a sign advertising a subdivision — Lynn Haven — and he knocked it down the same evening it was erected. Sometime after this occurrence, Hauschulte Realty Co. and the Nooney Realty Co. erected signs on the property and he knocked them down also. Sometime in 1972 some men commenced removing some maple trees from the property and he ordered them off of the property.

There was also testimony by Jack and Sue that approximately three months after he built the house Harold told him that he had a farm in Dexter, Missouri, which he would let Jack have if Jack moved off the Dunn Road property. Jack replied that he didn’t lose a thing in Dexter, Missouri, and “You come and get me off.” Also, sometime in 1950, Harold called him and asked him to help with the taxes. He replied that his wife was sick and he was in a bind and could not help. Again, at some later date, “the late 50’s,” Harold called Sue and asked her to talk Jack into taking a piece of property in St. Charles County and leaving the Dunn Road property. She conveyed this message to Jack.

At all times while the appellants occupied the Dunn Road property they were under the impression that it was part of Louise Russell’s estate and Jack’s share of her estate, until they received a letter sometime in September, 1972, from Mr. Hetlage, Harold’s attorney, requesting that they surrender possession of the property. At different times prior to the receipt of the Hetlage letter, when appellants sought to make a loan, they represented to the lending agency that the Dunn Road property “was in my mother’s estate.” They testified that they never paid respondents any rent during the entire time they have occupied the property and that they paid neither taxes nor insurance.

Other witnesses produced by appellants testified that they were familiar with the fact that appellants lived on the Dunn Road property and had farmed it; that Jack maintained a welding shop on the premises. One witness, George R. Boyd, testified that Jack told him he owned the property. Another, Richard F. Cecil, appellants’ tax man, testified that he prepared their income taxes, that he never took off any deductions for real estate taxes, and that on one occasion Jack told him he did not have to worry about paying any rent. Ralph Bastean testified that he rented six acres of the farm from appellants in 1972, farmed it, and paid the rent to appellants. Joseph Montrey testified that he has known appellants for thirty years or more and although Jack never told him that he owned the Dunn Road property he had the understanding from conversations around the tavern he owned that Jack’s mother owned the property. Herman Kienstra, who has known the appellants since around the late forties or early fifties, testified that he furnished some ready-mix concrete, sand and cement to the premises several times through the years, and that some of this was used for the floor of the welding shop. Jack paid for this material. Jack told Mr. Kienstra that his mother owned the property.

Appellants also called as a witness their son, Ronald L. Russell, who testified that he had lived on the Dunn Road property for 18 years and during that time his father told him: “This is my property and this is my share of my mother’s estate.” While he lived on the property he observed his father tear down one sign which had been erected on the property and also saw his brother knock down another.

Jack admitted that he never advised Harold that he had destroyed the signs which had been erected on the land without his permission. Harold had been on the property only once in the last 23 years and the last time Jack saw Harold was seven years ago at Arthur’s funeral. They did not discuss the property then. Until he received the letter from Mr. Hetlage in September of 1972 he did not know that Harold had a deed to the Dunn Road property. No one discussed his mother’s estate with him at the time of her death nor immediately after; at some unspecified time he did discuss her estate with Arthur. On one occasion when he went to the Hazelwood City Hall to obtain a permit for a gas tank, he saw his mother’s name on a document there. He testified that he knew deeds are recorded in the office of the Recorder of Deeds.

From appellants’ evidence we believe it is clear that they entered upon the Dunn Road property in the belief that Jack Russell had an interest therein as an heir at law of Louise Russell; that this was “his share of his mother’s estate.” At no time did Jack testify that he believed the tract was his alone, or that the entire tract of land was his share of the estate, or that his sister and brothers had no interest therein. Nor did he testify that he thought it was his share of the estate to the exclusion of the other heirs of Louise Russell. In effect, his own evidence was that he took possession and entered upon the property as a tenant-in-common with his sister and brothers. This is the theory upon which appellants tried their .case, and an appellate court on appeal will not review a case upon a theory different from that upon which it was tried nisi. Hulahan v. Sheehan, 522 S.W.2d 134, 139[4] (Mo.App.1975). This belief that appellants occupied the property as tenants-in-common persisted until sometime in September of 1972, at which time, they learned for the first time that Harold Russell and his wife had a deed to the property when they were so advised by Mr. Hetlage’s letter.

The general rule is that a coten-ant in possession presumptively holds possession for his cotenants and while he can acquire title by adverse possession against his cotenants, strong proof is required to overcome the presumption that the claimant holds possession for his cotenants. Gash v. Gilbreath, 507 S.W.2d 931, 934[3, 4, 5] (Mo.App.1974). However, for the statute to commence to run the cotenant in possession must evidence an unequivocal claim of ownership inimical to the rights of his co-tenants which is so open and notorious as to manifest an intention to possess the property as his own and to exclude others from control and to ignore and repudiate any right in his cotenants. Cash v. Gilbreath, supra, 1. c. 934[8]. It is not a mere occupancy or possession which must be known to those who claim ownership which establishes title by adverse possession, but that occupancy or possession which is in opposition to the rights and in defiance of or inconsistent with the rights of the other claimants. Reinheimer v. Rhedans, supra, 1. c. 830[8]. Acts, verbal or otherwise, to show an adverse claim by a cotenant in possession, must be acts clearly repudiating and denying rights of the other cotenants. Higgerson v. Higgerson, 494 S.W.2d 374, 379 (Mo.App.1973). Until there have been such outward acts of exclusive ownership on the part of one cotenant as to impart notice, unequivocally, to his cotenant that an adverse possession is asserted against him the statute of limitations does not commence to run. Zimmerman v. First National Bank of Brunswick, 201 S.W. 852, 853[1] (Mo.1918). “The possession is not adverse until there exists in the mind of the possessor the intent and determination to hold the premises for himself, as of the time in question as well as of the future and to the exclusion of his cotenants, so as to render the existing possession hostile in fact. That is to say, the primary basic question is with what intent (quo animo) was the possession held as of the time in question.” Anno. 82 A.L. R.2d Adverse Possession, § 9, p. 46.

We hold that under the appellants’ evidence they have failed to make a submis-sible case of adverse possession on the theory of law upon which they tried their case in the trial court for the reason that all of the acts they performed with respect to the property in issue as well as their verbal statements with respect to their interest in the property were consistent with their theory that they were tenants in common with the heirs of Louise Russell and did not constitute evidence of an unequivocal claim of ownership inimical to the rights of their cotenants so as to manifest an intention to possess the property as their own, to exclude their cotenants from control and to ignore and repudiate any right in the other cotenants.

We affirm, but remand this cause to the trial court for disposition of respondents’ counterclaim.

CLEMENS, P. J., and STEWART, J., concur.

      . Where appropriate the parties shall be identified by the names used in the record, i. e., John G. Russell — “Jack”; Vada S. Russell — “Sue”; Francis H. Russell — “Harold”; and Hazel Russell — “Hazel”.

      . At the time this cause was tried and judgment entered Rule 72.02 was in effect; as of January 1, 1975, this Rule has been incorporated as subsection (b) of Rule 72.01.

      . The father of the family died in 1919.


author: STEWART, Judge.

text:
    Noah C. ALLISON, Appellant, v. Viola E. ALLISON, Respondent.
    No. 37016.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 24, 1976.
    Dewey S. Godfrey, Jr., Cady & Godfrey, St. Louis, for appellant.
    George J. Bude, Ziercher, Hocker, Tzin-berg, Human & Michenfelder, Clayton, for respondent.
   STEWART, Judge.

Petitioner, husband, filed this proceeding for dissolution of marriage. The trial court dissolved the marriage and entered judgment awarding respondent, wife, custody of their daughter, child support, maintenance, attorneys fees and divided the marital property. On appeal petitioner challenges the judgment only as to child support. He contends (1) that the judgment is vague, indefinite and thus unenforceable and (2) the amount is unreasonable in relation to petitioner’s financial means. We affirm.

The decree as to child support is as follows:

“One thousand ($1,000.00) Dollars toward the educational costs of Deborah K. Allison, a minor, at Memphis State University, Memphis, Tennessee, incurred for the Spring Semester of school, ending May 31, 1975; thereafter, and commencing June 1, 1975, the sum of $30.00 per week for the support of the said minor child until her emancipation under the laws of this State.”

Undeniably a money judgment must specify with definiteness and certainty the amount for which it is rendered; it must be so in order to be responsive to the enforcement provided by law. Loomstein v. Mercantile Trust National Association, 507 S.W.2d 669 (Mo.App.1974), and Taylor v. Taylor, 367 S.W.2d 58 (Mo.App.1963). The trial court, however, has great flexibility in fashioning judgments to accommodate the needs of the parties as the court did in this case.

The order for child support in this case is definite and certain. $1,000.00 was to be paid forthwith to defray the cost of the child’s educational expenses for the 1975 Spring semester. Commencing June 1, 1975, petitioner’s child support obligation will be $30.00 per week until her legal emancipation.

Taylor and Loomstein are clearly inappo-site to the judgment in this case. In Taylor the alimony provision was for 25% of the husband’s net income. In Loomstein the trial court ordered the husband to pay all sums necessary for his daughter’s college and graduate school tuition, books, room and board. Both cases stressed that the amount due required external proof. In this case the amount petitioner owes can be readily determined from the decree and can be enforced under the regular processes of the courts.

Petitioner’s contention that the award for child support is unreasonable is based on a misreading of the decree. Petitioner interprets the order as requiring a payment of $1,000.00 per semester, plus payment of $30.00 per week, for an annual total of $3,560.00. However, as noted above, after petitioner pays the one-time $1,000.00 educational assessment, his child support obligation will be $30.00 per week, or $1,560.00 per year.

The primary obligation for child support is still that of the father and the financial resources and needs of the noncustodial parent is one relevant factor in determining the amount of child support. § 452.340(6) RSMo. Petitioner, a skilled construction worker, assumes that he will be employed 75% of the work year, and on this assumption he projects an annual income of about $14,500.00 and expenses for the immediate future. Petitioner concludes he will not be able to afford the child support payments, which he mistakenly believes will amount to $3,560.00 per year.

As part of this general contention petitioner argues the court erred in considering the cost of his daughter’s attendance at a private, out-of-state school— Memphis State University. He suggests his daughter could obtain the same quality of education within the St. Louis area at a much smaller cost to himself. The daughter testified she was attending Memphis State at the time of the hearing because that is where she wanted to go for studies in special education.

In Jenks v. Jenks, 385 S.W.2d 370[12-13] (Mo.App.1964), this court said a child should be afforded an education reasonably adopted to her capacity and aptitude at an accredited institution of the general class to which other children of her background and means have access. The daughter in her first semester at the school received all B’s and A’s; there is no question of her capacity to master the curriculum.

We have examined the record in this case and we believe the trial court properly took into account the petitioner’s income and expenses, the occasional layoffs endemic to his occupation and the needs of the minor for support and education.

The court did not abuse its discretion in making the award. Larison v. Larison, 524 S.W.2d 159 (Mo.App.1975). A detailed analysis of the expenses of petitioner and the needs of the child would have no preceden-tial value.

The judgment is affirmed.

CLEMENS, P. J., and DOWD, J., concur.


author: PER CURIAM.

text:
    Johnnie OVERALL, Movant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 37378.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 24, 1976.
    Rita Montgomery, Whitfield, Montgomery & Walton, St. Louis, for appellant.
    John C. Danforth, Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Michael L. Sullivan, Asst. Circuit Atty., St. Louis, for respondent.
   PER CURIAM.

A jury found petitioner guilty of robbery first degree. He was sentenced under the Second Offender Act to 20 years imprisonment. Petitioner subsequently filed a motion under Rule 27.26. In the motion it was contended that petitioner was (1) denied effective assistance of counsel; (2) was denied due process because he was “rused to trial” although the court was informed by petitioner that counsel had not investigated the case; (3) the court was without jurisdiction to impose sentence under the Second Offender Act because the court failed to find that he had “been imprisoned, fined, paroled or placed upon probation” for the prior crime; and (4) that petitioner was deprived of the right to have a jury to determine his punishment. The motion was amended to also allege that petitioner’s rights under the 5th and 14th Amendments to the Constitution of the United States were violated because the prosecutor in closing argument referred to petitioner’s failure to testify. j

An evidentiary hearing was held at which petitioner was represented by counsel. The only issue presented to the court was the question of ineffective assistance of counsel. The court made findings of fact and conclusions of law and denied the motion.

Regrettably, we are once again required to dismiss an inadequate appellate brief.

A proceeding under Rule 27.26 is a civil proceeding and the brief on appeal is required to conform to the simple requirements of Rule 84.04.

Rule 84.04(c) provides:

“Statement of Facts. The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument. Such statement of facts may be followed by a resume of the testimony of each witness relevant to the points presented.”

Ancillary to Rule 84.04(c) is 84.04(h) which reads as follows:

“Page References in Briefs. All statements of fact and argument shall have specific page references to the transcript on appeal, or if the transcript is printed, to the printed transcript.”

The single page denominated “Statement of Facts” is wholly inadequate. It is merely a history of the case. It contains none of the facts that would be relevant to the issues sought to be raised. It does not contain one reference to the transcript of the hearing held with respect to petitioner’s motion.

The facts upon which the trial court made its determination are indispensable to our review. Devoy v. Devoy, 502 S.W.2d 428 (Mo.App.1973).

The argument further compounds the deficiencies of the brief. There is but one reference to the transcript of the hearing on the motion. This is found under the issue of ineffective assistance of counsel. Under the other points there is not one reference to the transcript of the hearing on the motion. The arguments under those points contain two references to the transcript of the original trial. That transcript was not presented to the trial court in this proceeding, nor is it before us for our consideration.

We can no longer tolerate gross inadequacy in appellate briefs.

The appeal is dismissed.

All Judges concur.

      . “B. STATEMENT OF FACTS
      This cause was instituted by a substitute information in lieu of an indictment consisting of Two Counts. Count I charged the movant-ap-pellant with Robbery First Degree By Means of a Dangerous and Deadly Weapon by taking from one, John G. McCall, $50.00 on the 24th day of August, 1973. Count II charged mov-ant-appellant with Assault with Intent to Kill with Malice upon one Ronald Grob, by discharging a pistol in the direction of Ronald Grob on the 24th day of August. The substitute information also charged defendant with two prior convictions of felonies, which the Court found outside the hearing of the jury. The defendant was represented throughout the trial by Assistant Public Defender, Frederick Buckles, of the St. Louis Public Defender Bureau. The trial began on January 29, 1974 before the Honorable Daniel T. Tillman, Judge of the Circuit Court of the City of St. Louis, State of Missouri, and a jury.
      The defendant did not produce any evidence and the case was submitted to the jury on both Counts. The jury returned a verdict of guilty of Count I, but were unable to reach a decision on Count II and the Court declared a mistrial as to Count II. Defendant’s Motion for a New Trial was denied and the Court sentenced the defendant to 20 years imprisonment. Defendant was permitted to appear on a Motion 27.26 to vacate judgment, order and decree of a twenty year sentence this Court heretofore entered in cause number 73-2325. The Court overruled the defendant’s motion 27.26. Mov-ant is now appealing the Circuit Court’s overruling of defendant’s Motion 27.26.”


author: PONES, Chief Justice.

text:
    Samuel HADDIX, Appellant, v. DAY & NIGHT MANUFACTURING COMPANY et al., Appellees.
    Supreme Court of Tennessee.
    Dec. 22, 1975.
    Thomas B. Avery, Memphis, for appellant.

      John H. Harris, Jr., Chandler, Maniré, Harris & Shelton, Memphis, for appellees.
   OPINION

PONES, Chief Justice.

This is an appeal by the employee from a denial of compensation by the Circuit Court of Shelby County in a workmen’s compensation case. The trial court found that appellant was injured within the scope and course of his employment, and that appellant was in all respects entitled to recover compensation except for certain false statements made in his application for employment.

In support of his appeal before this Court, appellant maintains: (1) the false statements in the application and medical history forms were not willfully and knowingly made; (2) the employer waived any reliance on the false statement when it continued the appellant in its employment after he complained of lower back pains; (3) there was no causal connection between the false representations made by appellant in his application, and the injury he sustained. Under the rule of Federal Copper & Aluminum Company v. Dickey, 493 S.W.2d 463 (Tenn.1973), and Phillips v. Fleetguard Division of Cummins Eng. Co., 480 S.W.2d 528 (Tenn.1972) these are the three elements which must be established to deny compensation to the employee when he has misrepresented his medical history. See also, 1A, Larson, Workmen’s Compensation Law, § 47.53 (1973).

On July 12, 1971, appellant applied for a job with defendant-appellee, Day and Night Manufacturing Company, and signed an application for employment filled out by his wife. Appellant evidently is able to read and write, but does not do so well. On the application was the question: “Have You Ever Received Workmen’s Compensation For Injuries Sustained During Previous Employment?” The answer to this question was, “No.” On July 26, 1971, the evidence shows that appellant completed and signed a medical history form. On that form were two questions relevant to this action:

“19. Have you every had a back pain or injury to your back?
37. Have you ever sustained an industrial injury whereby you lost time from your employment, or for which you received Workmen’s Compensation payments and/or an award? State ‘Yes’ or ‘No’.”

His answer to both questions was “No.”

Subsequent to a physical examination, appellant was accepted for employment and began working in the shipping department, a job which required heavy lifting.

On October 27, 1971, and again on January 7, 1972, appellant complained to the nurse on duty at the company first-aid station of back injuries suffered while on the job the previous nights. The nurse administered minor medication and hot packs the several times he appeared for treatment of these two injuries and again on April 25, 1973, when he complained of a low back pain.

The injury which precipitated this lawsuit evidently occurred on the night of May 8, 1973, while the appellant was loading a water heater on a fork lift truck he was operating. Appellant continued to complain of back pain and was treated by the company physician on June 6, 7, and 8,1973. On June 25, 1973, appellant was examined by a neurosurgeon, and on June 28, 1973, surgery was performed to remove an extruded disc at L-5.

Subsequently it was learned by the company that appellant had a lengthy record of back injuries. On October 21, 1958, appellant had consulted a Dr. Calandruccio about a lower back pain he experienced while lifting a heavily laden wheelbarrow. Dr. Calandruccio diagnosed his condition as an “early lumbar disc,” noting an “area of marked tenderness over the transverse process of L-5 on the right.” That episode involved two visits to the doctor and ten (10) days absence from employment while “on bed rest at home.” On March 29, 1967, appellant consulted a Dr. Frost about a pain in his lower back. Appellant made five (5) visits to the doctor and was off from work until April 11, 1967. There was a claim submitted for workmen’s compensation payments for this injury, but no evidence as to what, if any, payments were made. While lifting a pan of heavy parts, appellant again suffered an injury to his lower back and visited Dr. Frost on September 10, 1968. He was off from work until September 23, 1968, and received workmen’s compensation benefits for the loss of one (1) week of work.

On the basis of the foregoing evidence, the trial court denied benefits under the Workmen’s Compensation Act because of the appellant’s false and willful misrepresentation of his physical condition to the appellee. We affirm this denial of benefits.

We need not rule on the question of whether appellant was aware of the falsity of the answer given in his application for employment filled out by his wife and dated July 12, 1971. There is sufficient evidence to show that appellant both filled out and signed the medical history questionnaire dated July 26,1971, which contained two (2) false answers. Considering appellant’s past history of back trouble, we feel that appellant knowingly and willfully falsified the answers to these questions. There is also sufficient evidence to show that these misrepresentations were material and were relied upon by the company. Representatives of the company testified that the appellant would not have been hired for heavy work in the Shipping Department had his previous history of back trouble been revealed.

Appellant cites no Tennessee authority, nor are we able to find any, in support of his second assignment of error that the company waived its reliance on the misrepresentations by continuing the appellant in its employment after he complained of backache. It would not be equitable to either employers or employees to require that an employer must dismiss an employee who complains of physical ailments, or the employer must suffer the risk that he will be declared to have waived any reliance on the employee’s statement of medical history. Under the facts of this case, it is the employee who has waived his benefits under the workmen’s compensation statute by not accurately stating material facts.

In his third assignment of error, appellant maintains that there was no evidence to establish a causal connection between the false representation made by him in his application, and the injury he sustained. If there is any material evidence to support the finding by the trial court, we must affirm that finding. Bowman v. Smith-Built Homes, Inc., 221 Tenn. 102, 424 S.W.2d 801 (1967).

Appellant’s injury for which he seeks compensation resulted in an operation to remove an extruded lumbo-sacral, or L-5 disc. In 1958, when appellant first sought treatment for his back, Dr. Calandruccio noted an “area of marked tenderness over the transverse process of L-5 on the right,” and diagnosed his condition as an “early lumbar disc.” Both Dr. Frost and Dr. Cannon agreed that a person with a history of back trouble is more likely to sustain a ruptured disc.

There is material evidence in the record to sustain the denial of compensation by the trial court. The judgment of the trial court is affirmed at the cost of appellant.

COOPER, HENRY and HARBISON, JJ., and NEARN, Special Justice, concur.