author: McMILLIAN, Judge.

text:
    Cletus Raymond HAHN, Movant-Appellant, v. Linda Fay HAHN, Respondent.
    No. 39775.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 11, 1978.

      Buerkle, Lowes & Beeson, Albert C. Lowes, David G. Beeson, Jackson, for mov-ant-appellant.
    Schnapp, Graham & Reid, John W. Reid, II, Fredericktown, for respondent.
   McMILLIAN, Judge.

Appellant appeals from a judgment of the circuit court of Madison County denying appellant’s motion to modify the child custody provision of a divorce decree entered May 2, 1974. The motion prayed for permanent custody of the child born of the marriage between appellant Cletus Hahn and respondent Linda Hahn. The appellant contends that (1) the trial court erred in failing to take into account the well established “policy of law” that one who has custody of a minor child must, absent unusual circumstances, seek approval of the court prior to the removal of the said child from the court’s jurisdiction; (2) the trial court erred as a matter of law in refusing to honor the timely request by counsel for the appellant for findings of fact and conclusions of law pursuant to Supreme Court Rule 73.01(l)(b); and (3) the court abused its discretion by requiring appellant to pay $2,082.50 of respondent’s attorney’s fees. For reasons hereinafter stated we affirm, but remand for the trial court to reassess appellant’s visitation rights in light of the respondent’s move from the jurisdiction and appellant’s present inability to visit his child.

When appellant and respondent were divorced on May 2, 1974, the court awarded custody of the couple’s minor child, age one at the time, to respondent and granted appellant visitation rights. The court provided that appellant could not keep the child overnight. According to the appellant, this limitation and the respondent’s refusal to allow appellant visiting rights on Sundays, made it possible for appellant to see his son on only fifteen different occasions after the dissolution and before respondent removed the child from the jurisdiction.

On January 22, 1975, the respondent and the child began living in Texas, where she is presently employed at the Continental Bus Station in Houston. She has a savings account of $66.51 and a checking account of $472.92.

Appellant is employed by Mississippi Lime Company, located at Ste. Genevieve, Missouri. He has a savings account of $700.00 and a checking account of $351.00. He is remarried and lives in a two-bedroom mobile home. Appellant has a 1973 Ford pickup truck with $900.00 remaining to be paid, carries life insurance on himself payable to his current wife, and maintains health insurance for his child.

On June 18,1975, appellant filed a motion to modify the dissolution decree alleging that the move of his ex-wife and son from Missouri to Texas was a change in circumstances justifying a modification, especially since it was now virtually impossible for him to visit his son on a regular basis. Appellant’s present wife stated at the hearing that she would be glad to stop working and to take care of her husband’s son.

After several motions and hearings by the parties, the trial court denied appellant’s motion for a change in custody and awarded respondent $2,082.50 in attorney’s fees. This appeal followed.

First, appellant contends that the court failed to take into account the well established “policy of law” which requires one who has custody of a minor to seek approval of the court prior to the removal of the child from the jurisdiction. Appellant claims that by not recognizing this “policy of law” the trial court prejudiced the rights of the appellant and denied the minor child the opportunity to know his father. Appellant further contends that there has been a sufficient change in the circumstances to warrant a modification of the previous decree.

It is important to note that in deciding matters of child custody “we are bound by the fundamental tenet that in matters relating to child custody, the [child’s] welfare dominates all other considerations. ...” J.L.W. v. D.C.W., 519 S.W.2d 724, 729 (Mo.App.1975); see also § 452.410 and § 452.375, RSMo 1973. The question becomes whether it is in the best interests of the child to permit his removal to another jurisdiction.

The general rule that in matters affecting the custody of a child the court will be governed primarily by welfare and best interests of the child applies in determining whether to permit or prohibit removal of the child from the jurisdiction. (See 24 Am.Jur.2d, Divorce and Separation § 798)

The best interests of the child require that a change of custody occur only if such a change will be a positive improvement for the child because “a change of custody disrupts the child’s living arrange-merits, and the channels of its affection.” 42 Am.Jur.2d, Infants § 57. In the case at hand, custody of appellant’s minor child was awarded to respondent. There is no evidence to show that respondent is not a fit parent, that the child is not receiving good care, or that the child is living in anything but a healthy environment. Appellant claims that the fact that respondent left the jurisdiction and thereby denied appellant the right to visit his son provides a sufficient justification for changing custody. This court has recently ruled on a similar case. In Ague v. Ague, 565 S.W.2d 799 (Mo.App.1978) appellant contended that a wife’s action in removing the child from Missouri to Oregon without court approval and which defeated the non-custodial parent’s right to exercise temporary custody required that custody be changed. This court disagreed and stated that, “[w]hile this is a factor which may warrant a change, it is only one factor and does not compel the court to modify custody.” A change in custody should not be ordered as a punitive measure or because a parent’s visitation rights will be infringed

[T]he court’s primary concern in choosing between a resident and nonresident applicant is the welfare and interest of the child. Thus, where it was shown that the welfare and interests of the child would be better promoted, the courts have awarded custody to a nonresident, or permitted a resident custodian to remove the child to another jurisdiction in which such custodian intended to establish a new residence. And this conclusion has not been affected by the fact that the parent’s right of visitation would be curtailed or destroyed by the removal of the child from the jurisdiction or that the child will be taken to and live in a foreign country. 42 Am.Jur.2d Infants, § 52.

See also Hart v. Hart, 539 S.W.2d 679, 682 (Mo.App.1976); Northrup v. Sieve, 517 S.W.2d 470, 474 (Mo.App.1974).

Appellant relies on Dupree v. Dupree, 357 S.W.2d 241 (Mo.App.1962) which correctly states that

[T]he courts encourage the continued interest, love and affection of the divorced parents for the child and strive to afford the child ample opportunity to have close contact with both parents as it grows up.

This result, however, is not possible in the case at hand, even if custody was to be awarded to appellant. Respondent-mother has moved to Texas, making the close contact with both parents impossible. We find that the trial court had sufficient evidence to conclude that it would be in the best interests of the child to permit the mother to remove the child from the state.

Appellant next contends that the court erred in refusing to honor the timely request by counsel for findings of fact and conclusions of law. Supreme Court Rule 73.01(l)(b) provides in part:

“ . . .If any party so requests before final submission of the case, the court shall dictate to the court reporter, or prepare and file, a brief opinion containing a statement of the grounds for its decision and the method of determining any damages awarded; and may, or if requested by counsel, shall, include its findings on such controverted fact issues

We recognize that the trial court should have made such findings of fact and conclusions of law and admonish lower courts to do so. We do not, however, find this deficiency to be sufficient cause for reversal. Supreme Court Rule 84.13(b) states that, “[n]o appellate court shall reverse any judgment, unless it finds that error was committed by the trial court against the appellant, materially affecting the merits of the action.”

Appellant’s last contention is that the lower court erred in awarding respondent attorney’s fees in the amount of $2,082.50. This contention is without merit. Section 452.355 RSMo 1973 gives the court the discretion to order one party to pay a reasonable amount of attorney’s fees to the other party. Appellant claims that there is no evidence to show that respondent cannot pay her own attorney’s fees. Need, however, is only one factor to be considered in ordering payment. Beckman v. Beckman, 545 S.W.2d 300, 302 (Mo.App.1976).

Furthermore, “courts are themselves experts on the question of attorneys’ fees and the judge who personally tries a case and is acquainted with all the issues involved is in a position to fix the amount of attorneys’ fees without the aid of evidence.” Jafarian-Kerman v. Jafarian-Ker-man, 424 S.W.2d 333, 340 (Mo.App.1967).

Our duty on appeal is limited and guided by certain well-known principles. “Rule 73.01(3) requires us to review the case upon both the law and evidence and to give due regard to the opportunity of the trial court to have judged the credibility of the witnesses.” Hart v. Hart, 539 S.W.2d 679, 681 (Mo.App.1976). This rule was recently construed in Murphy v. Carron, 536 S.W.2d 30 (Mo.1976) to mean that the judgment of the trial court will be sustained unless (1) there is no substantial evidence to support it, (2) it is against the weight of the evidence, (3) it erroneously declares the law or, (4) it erroneously applies the law. Id. at 32. We cannot say that the trial court erred in awarding the attorney’s fees.

In conclusion, while we disagree with appellant’s contentions, we agree that in order to serve the best interests of the child, appellant should have more opportunity to visit with his son. We therefore remand to the lower court for consideration of appropriate visitation rights in light of the child’s removal from the jurisdiction. The lower court should consider whether it would be possible to award appellant custody of his child for certain periods during the year; for example, a week over the Christmas season and three weeks over the summer vacation. This would permit the vital association with both parents, which a child needs.

Accordingly, we affirm the judgment of the trial court, but remand the cause for further proceedings consistent with the directions contained herein.

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

      . Following appellant’s motion for modification of the divorce decree which was filed on June 18. 1975, the respondent filed a motion to dismiss and asked for attorney’s fees. On July 23, 1975, respondent filed a reply to the motion to modify and moved the court to modify the previous dissolution decree. A hearing was held on August 7, 1975, and the court rendered a decree denying both motions and allowing the respondent to remove the child to the State of Texas. On August 11, 1975, appellant filed his notice of appeal with this court. On August 12, 1975, respondent filed a motion for a new trial and specifically requested an increase in child support payments from $20 to $40 per week and granting reasonable attorney’s fees pursuant to § 452.355 RSMo 1973, in addition to her expenses and cost of income resulting from her travel to Missouri to attend the hearing.
      On September 1, 1977, the lower court held a hearing on respondent’s motion for new trial which had been granted. The hearing was limited to the question of attorney’s fees, money for transportation back to Missouri and for additional child support. On October 13, 1977, the lower court, made its order which provided that there had not been sufficient change in circumstances to justify modifying or increasing the amount of child support; denying recovery of respondent’s traveling expenses and allowing $1500 attorney’s fees, $82.50 expenses for first appeal and $500 for attorney’s fees on this appeal. On October 11, 1977, appellant filed notice of appeal.

      . See Green v. Perr, 238 S.W.2d 924, 927 (Mo. App.1951) wherein the court stated that “the custody of a minor child of divorced parents should never be awarded as the means of punishing one parent or rewarding another.” See also V.M. v. L.M., 526 S.W.2d 947, 949 (Mo. App.1975).


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    Thomas EDWARDS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39469.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 18, 1978.

      Robert C. Babione, Public Defender, Michael P. David, Asst. Public Defender, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto and Nanette K. Laughrey, Asst. Attys. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

Movant Thomas L. Edwards (hereafter defendant) was found guilty and sentenced to six years’ imprisonment for second-degree burglary. At that time defendant waived his right to file a motion for new trial and appeal and pled guilty to other charges of tampering with a motor vehicle and three separate charges of felonious stealing. The trial court imposed, concurrently with the burglary sentence, a five-year sentence on the tampering charge and a six-year sentence on each stealing charge.

Defendant has now appealed the denial of his Rule 27.26 motion without an eviden-tiary hearing. His allegations of error concern his attorney’s stated opinion that he “would” receive consecutive sentences on the four other charges if he did not waive his right to move for a new trial and appeal on the burglary charge. Defendant contends this statement threatened or misled him, thereby coercing waiver of his appeal and his guilty pleas. Defendant seeks to withdraw his waiver of appeal and his guilty pleas, or alternatively, to remand the case for an evidentiary hearing.

A defendant may voluntarily waive his right to file a motion for new trial and appeal. The right should not be deemed waived unless the record, the acts of defendant and all the circumstances are inconsistent with any other interpretation. State v. Harmon, 243 S.W.2d 326[3] (Mo. 1951). We do not hesitate, however, to hold a defendant waives his right to appeal where the intention to voluntarily waive appears in the record. Harmon, supra, at [4, 5],

Defendant’s reliance on Ray v. State, 532 S.W.2d 478 (Mo.App.1975) to support his contention that his attorney’s statement was inconsistent with a voluntary waiver is misplaced. In Ray, supra, at [9], the court noted significant misleading advice of counsel may constitute denial of due process of law and vitiate judicial proceedings. The distinguishing characteristic of Ray was counsel’s clearly erroneous advice that the defendant could be retried for murder on a new trial after a successful appeal from a manslaughter conviction. Here, counsel’s advice was not erroneous because defendant could have received consecutive sentences.

Defendant’s counsel had a duty to advise him as to the range of punishment and to give his judgment as to the possible extent of punishment. Smith v. State, 513 S.W.2d 407[3] (Mo.1974). To attack the voluntary and knowing character of his waiver, defendant must show his counsel’s advice fell below the range of competence demanded of attorneys in criminal cases. Counsel’s alleged use of the word “would” in giving his judgment as to the extent of possible punishment met his duty under Smith. We so held in Shepherd v. State, 540 S.W.2d 619[2] (Mo.App.1976).

The trial court found the transcript indicated defendant’s intention to knowingly and voluntarily waive his right to file a motion for new trial and appeal. Before pleading guilty defendant acknowledged he understood the effect of this waiver:

THE COURT: You believe you understand what the state’s recommendation is and the proceedings we are going through?
THE DEFENDANT: Yes, Your Hon- or.
THE COURT: Do you have any questions you want to put to Mr. Bell before I accept this waiver to file a motion for new trial?
THE DEFENDANT: Does this waiver mean that I cannot file for a new trial at no time whatsoever?
MR. BELL: Yes.
THE DEFENDANT: That is all.
THE COURT: You are telling the Court you are satisfied and you feel that Mr. Bell has served you well as your attorney . . . ?
THE DEFENDANT: Yes.

Defendant’s contention that his attorney’s comments rendered his guilty pleas involuntary is without merit. Counsel’s alleged use of the word “would” in giving his opinion as to the range of possible punishment was not improper. His advice was not erroneous because the court in its discretion could have imposed consecutive sentences. State v. Baker, 524 S.W.2d 122[7] (Mo.1975). Defendant has not shown counsel’s advice fell below the level of competence demanded in criminal cases.

The court correctly dismissed defendant’s Rule 27.26 motion without an evi-dentiary hearing. To qualify for an eviden-tiary hearing, defendant’s motion must raise matters not refuted by the records in the trial court. Haliburton v. State, 546 S.W.2d 771[1] (Mo.App.1977). Defendant’s allegation of coercion is refuted by his responses to the court’s questions. Defendant stated (1) he directed his counsel to enter the guilty pleas, (2) he was not forced to enter a plea of guilty, (3) he understood the range of punishment, (4) that the court was not bound by the state’s recommendations and (5) understood the nature of the rights he was waiving.

Affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Danny Ray VOLNER, Appellant.
    No. 39156.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 25, 1978.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, J. Michael Davis, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, David 0. Fischer, Asst. Circuit Atty., Kirkwood, for respondent.
    Robert C. Babione, Public Defender, Mary Louise Moran, Asst. Public Defender, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

Defendant Danny Volner, charged with second degree burglary as a prior felon, was found guilty by a jury and sentenced by the court to ten years’ imprisonment. Defendant appeals, conceding his guilt, but contending the court erred in assessing the ten-year penalty “because the court would have honored the plea bargain in which the prosecution recommended five and one-half years” and the sentence imposed “is in effect a punishment for his exercise of his constitutional right to a trial . . . .” The assertion as to what sentence the court would have imposed on a plea of guilty is purely conclusory, without support in the record.

The first transcript reference to a plea bargain came after the jury panel had been sworn for voir dire. At the bench, defense counsel then told the court she wanted to make a record “to protect” herself. She said the state had offered on a plea of guilty to recommend a five-and-a-half-year sentence, which she considered “a fair offer,” but that defendant had rejected the offer and stood on his not-guilty plea. The court’s response indicated it knew the state had previously intended to recommend five- and-a-half years’ imprisonment on a plea of guilty. Contrary to defendant’s argument, however, the record is barren of any indication — or even any inference — the court had participated in the plea bargaining or had indicated any intention of imposing the recommended sentence on a guilty plea.

Defendant now relies on North Carolina v. Patton, 4 Cir., 381 F.2d 636, holding that for a court to impose greater punishment after trial than it would have imposed on a guilty plea exacted an unconstitutional condition to exercising his right to a fair trial. That ruling is not in point because it assumes the court offered to impose a lesser punishment on a plea of guilty. Defendant’s basis for argument here is the state’s proposed offer, not a pre-trial commitment by the court. To the contrary, the record is barren of any showing to support defendant’s contention the sentence imposed was “a punishment imposed on [defendant] for asserting his right to a trial.”

Defendant also relies on State v. McRae, 528 S.W.2d 794 (Mo.App.1975), implying judicial prejudice may suffice to challenge a maximum sentence. We find no basis for defendant’s contention of judicial prejudice. Defendant further cites United States v. Wiley, 267 F.2d 453 (7th Cir. 1959), criticizing the trial court’s statement that “ . . . once a defendant stands trial that element of grace [probation] is removed ... in the imposition of sentence.” The decision is patently inapposite.

The trial record here is barren of any indication the trial court was influenced by knowledge of the state’s offered recommendation, nor was there any indication the court was retaliatory in imposing sentence. Furthermore, as stated in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 665, 54 L.Ed.2d 604 (1978), “ . . .in the give- and-take of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.”

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur

      . Although the indictment charged only one prior felony, the trial court in assessing punishment referred to four prior felonies. Defendant did not challenge the accuracy of that statement then nor does does he do so on appeal.


author: SMITH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard James HARTY, Defendant-Appellant.
    No. 39210.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 25, 1978.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Eric Martin, Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, James R. Hartenbowl, St. Louis, for defendant-appellant.
    Robert H. Wendt, St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from a judgment of conviction of assault with intent to kill with malice and resultant three-year sentence of imprisonment in a court-tried case. We reverse.

Defendant’s sole point is that the court erred in failing to sustain his motion for acquittal. The evidence most favorable to the state is as follows. On October 20, 1976, shortly after midnight, Gale Frattini left the house of Theodore Conway. She heard two shots, then heard a voice say, “I’m going to kill you, you son-of-a-bitch.” While looking in the direction from which the voice came she saw a muzzle flash and heard a shot. The shot came from an open field to the rear of the Conway house. Theodore Conway testified that he heard shots, got up from his bed, went onto the back porch, heard someone say, “Hey, you son-of-a-bitch, ‘I’m going, to kill you and your whole family,” heard a shot and saw a muzzle flash. The flash came from an area of weeds and timber, approximately three hundred feet from where Conway was located. Beyond that point, at some unspecified distance, is a road and a subdivision. There are other houses in the vicinity. Conway called the police who arrived within fifteen minutes- and arrested defendant who had in his possession a loaded .30 caliber semi-automatic rifle and two or three spent cartridges which had been fired from the rifle. Defendant was charged and convicted of an assault upon Conway. There is no evidence that any bullets were located in Conway’s vicinity, or that either witness was aware of the direction in which the bullets were fired, or that Conway had a family, or that either witness knew defendant.

The evidence was sufficient to establish that defendant fired a rifle. The statute under which defendant was charged and convicted provides: “Every person who shall, on purpose and of malice aforethought, shoot at . .” Sec. 559.180, RSMo.1969. There is no evidence at all in the record, nor any basis for a reasonable inference, that defendant shot at Conway.

There is no evidence that defendant’s statements were directed to Conway (the epithet used is one of indefinite application); no motive was shown for the claimed assault, nor was there even evidence that defendant knew Conway. The state asserts that it is not necessary that the victim be struck in order for defendant to be guilty of the assault charge, citing State v. Agee, 68 Mo. 264 (1878) and State v. Broyles, 317 Mo. 284, 295 S.W. 550 (1927). We agree, but it is necessary that the victim be shot at. In the absence of any evidence which would support an inference that defendant shot at Conway, the state failed to carry its burden of establishing defendant’s guilt of the crime charged. The shooting of a gun in some undetermined direction including up or down does not establish that defendant shot at or assaulted Conway.

Judgment reversed and defendant ordered discharged.

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


author: PER CURIAM:

text:
    Donald Ray PLASTER and Luettia M. Plaster, Plaintiffs-Respondents, v. R. L. STANDLEY and Dorothy I. Standley, Defendants-Appellants.
    No. 10314.
    Missouri Court of Appeals, Springfield District.
    July 26, 1978.

      Dennis C. O’Dell, Springfield, for plaintiffs-respondents.
    Charles M. Wantuck, Springfield, for defendants.-appellants.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   PER CURIAM:

Plaintiffs (husband and wife) sued defendants (husband and wife) for possession of certain real estate located in Block 2, Hiday’s Addition to the City of Springfield and for damages. Defendants counterclaimed to have title to the disputed property quieted in them. The trial court obliged all parties in part and defendants appealed.

To conserve the 1,000 proverbial words a picture is said to replace, we offer the following drawing of the properties in question:

(To avoid confusion caused by death of spouses and remarriage of surviving former owners, the original names of previous owners are used in the singular to trace ownership of lots involved in this litigation).

Wadley owned Lots 5 and 8 and the south 6 feet of Lots 6 and 7 in 1944. A north-south fence then existed near the east end of Lot 8. In 1951 Wadley sold Lot 8 and the south 6 feet of Lot 7 to Crawford who already owned the north 50 feet of Lot 7. While Wadley thought the fence was the line separating Lots 5 and 8, Wadley intended that Crawford have whatever the deed described. At the time of the sale, Wadley had a horse and dog and Crawford had chickens so they agreed to leave the fence in place as long as Wadley resided in Lot 5. In 1955 Wadley sold Lot 5 and the south 6 feet of Lot 6 to defendants.

Crawford had claimed to defendants that defendants did not own to the fence line and had, without objection, removed most of the fence by 1958. Defendants removed the rest of the fence in about 1965. Crawford mowed in the area'east of the removed fence line and objected to defendants’ attempted occupancy of that area. In 1967 Crawford sold Lots 7 and 8 to plaintiffs and no north-south fence was standing at that time.

Prior to the history herein recounted, the 20 foot north-south alleys between Lots 5 and 8 and between Lots 6 and 7 had been vacated. Instead of each abutting lot owner moving or claiming to the middle of the vacated alleys, the east property owners moved or claimed to the west edge of the entire alley, i. e., owners of Lots 5 and 6 claimed the entire alley lying west of their lots, while the owners of Lots 7 and 8 claimed ownership of the entire alley situate west of their lots. Long before the remembrance of any viable witness, a building (see drawing, supra) described as a “Frame Chicken House & Garage,” had been constructed and stood partly on the southwest corner of Lot 5 and a few feet west of the center line of the vacated alley. Defendants grew tomatoes in the area behind or west of this building.

In 1954 Wadley had a survey made of the lots. It showed pins on the south line of Lot 8 and on the north line of the south 6 feet of Lot 7 which were located 5 feet west of the west boundary of the vacated alleyway lying between Lots 5 and 8. The survey did not show the existence of any fence.

Two years after plaintiffs purchased Lots 7 and 8, i. e. in 1969, defendants had a north-south chain link fence erected. At the north end it was 16 feet west of the west edge of the vacated alley lying between Lots 5 and 8; at the south end, the fence was 12 feet west of the west edge of the alley. In 1974 plaintiffs had a survey made which showed the location of the fence as illustrated by our above drawing. Plaintiffs showed defendants the survey results and objected to the fence and thereafter this action was instituted.

Except for the west 10 feet of the vacated alley lying between Lots 5 and 8, the trial court, inter alia, found that defendants did not have adverse possession of the property in dispute for any consecutive ten year period. The court expressly noted its determination of the issues was predicated “on the basis of credibility of witnesses” and observed that if defendants at any time had possession of Lot 8 to the site of the old north-south fence, that possession “was interrupted by the Crawfords taking down the old fence and contesting defendants’ right to the disputed strip and thereafter by plaintiffs mowing in the strip and then objecting after the 1974 survey was made.” Plaintiffs were additionally awarded judgment for $100 and the costs were taxed one-half to each side.

We now proceed to a consideration of the points relied on as they appear in defendants’ brief.

Defendants’ first point is an abstraction penned in disregard of the mandatory requirements of Rule 84.04(d), V.A. M.R., which are applicable to appellate review of court-tried cases. Simpson v. Island View Sales Corp., 540 S.W.2d 624, 625[1] (Mo.App.1976); Bell v. Bell, 538 S.W.2d 733, 735[2] (Mo.App.1976); Long v. Lincoln, 528 S.W.2d 512, 513[1] (Mo.App.1975). Although it is briefly noted that defendants’ initial point complains of the refusal of the trial court to sustain their motion for judgment when plaintiffs initially rested, we are bound to observe that defendants waived their objection to overruling of the motion when they thereafter produced exhibits and testimony relative to plaintiffs’ claim in the cause. Sears v. Kist-ner, 555 S.W.2d 74, 76[2] (Mo.App.1977); Gragin v. Lobbey, 537 S.W.2d 193, 196[6] (Mo.App.1976); Morris Plan Co. v. Universal Credit Co., 237 Mo.App. 365, 374, 168 S.W.2d 136, 140[8] (1943); Rule 73.01, V.A. M.R.

Defendants’ second point reads: “The burden of proof rested with plaintiffs on the whole case, but when defendants proved the five (5) elements necessary for their claim and made out a prima facie ease, the burden shifted to plaintiffs to go forward on the issue of adverse possession, which burden plaintiffs failed to sustain.” This point on its face raises no proper issue since it does not comply with Rule 84.04(d). It contains merely abstract statements. Wherein and why defendants proved the five elements necessary for their claim (whatever those elements may be), and why the burden shifted to plaintiffs and wherein and why plaintiffs failed to sustain that burden is left for this court to guess and speculate. Merely alleging what errors are without asserting wherein and why they are errors preserves nothing for appellate review. W. H. Powell Lumber Co., Inc. v. Federal Land Bank Ass’n of Mountain Grove-Rolla, 561 S.W.2d 700, 704[10] (Mo. App.1978). Moreover, points relied on which state nothing save conclusions and which are bare of references to evidence do not require our consideration on appeal [State ex rel. State Highway Comm. v. Graeler, 527 S.W.2d 421, 425[4] (Mo.App. 1975)] because we have no duty to seine the transcript nor the argument portion of an appellate brief to come by'the meaning of abstractions penned in briefs under the heading “Points Relied On.” Dors v. Wulff, 522 S.W.2d 325, 327[5] (Mo.App.1975).

Defendants’ points relied on numbered three and four present pure abstractions which do violence to Rule 84.04(d). They concern themselves with the general proposition that the failure of a party to testify in his own behalf who is possessed of facts germane to the issues on trial, raises a strong presumption and inference that his testimony would be unfavorable to his cause. Stringer v. Reed, 544 S.W.2d 69, 74[9] (Mo.App.1976). Specifically, defendants’ points on this matter concern the failure of plaintiff wife to testify. The rule permitting the inference, supra, does not apply where the testimony is unnecessary as here because plaintiff husband did testify [Talley v. Richart, 353 Mo. 912, 918-919, 185 S.W.2d 23, 27[10] (1945)], and albeit we assume the validity of defendants’ contention, the failure of plaintiff wife to testify did not deprive plaintiffs of their right to submit their case to the court but merely raised, at most, an unfavorable inference to be believed or not by the trier of the facts. Hughes v. Prudential Ins. Co., 179 S.W.2d 630, 635[4] (Mo.App.1944); 31A C.J.S. Evidence § 156(4), at p. 424. We are certain the learned trial judge was well aware of the foregoing. As he expressly noted in his findings, his conclusions, in part, were made “on the basis of credibility of witnesses”; this would evidence a disclaimer of any presumption or inference arising, if so, from plaintiff wife’s failure to testify.

The remaining points numbered 5 to 12 are likewise penned in defendants’ brief contrary to Rule 84.04(d). They read: “5. Defendants’ title by adverse possession was as valid as one acquired by deed.” “6. Standleys’ possession, claiming title, ripened into title, regardless of any survey subsequently made by witness Durham.” “7. The evidence showing acquiescence of the interested parties for a number of years that the boundary line be considered as such, is conclusive evidence of an agreement to that line, and defendants’ use and possession of the property was sufficient evidence that there was an agreement to establish the boundary line as defendants claimed, and the length of time of such acquiescence need only be long enough to evidence mutual acceptance of the dividing line and for no prescribed period.” “8. Whether the old fence was or was not intact at the time of plaintiffs’ occupancy would not defeat defendants’ claim in view of the 12 or 16 years adverse possession, and the presence of the remaining monuments, the existence of which are admitted; and any temporary removal of an enclosure does not evidence abandonment especially where the other boundary markers remained.” “9. When plaintiffs first entered their property in 1967 they took subject to the possession and rights of defendants; and by operation of law plaintiffs had actual knowledge of defendants’ claim of title by reason of the boundary monuments, garden, shed, posts, flowers, wire, work and maintenance, and actual occupancy.” “10. Plaintiffs did not prove any damages with certainty and left the matter to speculation or ‘out of the air’, and had no damages whatsoever, not being the legal owners.” “11. The facts show title in defendants by adverse possession and the Court erred in its judgment because the Findings of Facts are not supported by the evidence and are clearly erroneous; the defendants having proved all requisites of adverse possession for the statutory period.” “12. The evidence shows that plaintiffs failed in their claim for possession and that defendants established their claim and title to the property involved; and this Appeals Court should review both the law and the evidence in the „ ^ ease.

It is readily observed that points 5, 6, 7 and 10 are merely abstract statements of law and purported fact which preserve nothing for appellate review. State ex rel. Churchill Truck Lines, Inc. v. Public Service Commission, 555 S.W.2d 328, 330[1] (Mo. App.1977). Points numbered 8, 9,11 and 12 are simply abstractions which do not undertake to state wherein and why, by reason of the existence, vel non, of the old fence, plaintiffs took subject to the possession and rights of defendants, wherein and why plaintiffs did not prove any damages, wherein and why the findings of facts are not supported by the evidence and are clearly erroneous, wherein and why defendants allegedly and unerringly proved all requisites of adverse possession, et cetera. Estate of DeGraff, 560 S.W.2d 342, 345[4] (Mo.App.1977); Cato v. Modglin, 545 S.W.2d 307, 309[2] (Mo.App.1976); Powers v. Powers, 544 S.W.2d 339, 340[3] (Mo.App.1976); Cavaness v. Armstrong, 525 S.W.2d 446, 447[2] (Mo.App.1975); Brown v. Wilkinson, 495 S.W.2d 678, 681[5] (Mo.App.1973). Points that cannot be clearly understood without reference to other portions of an appellant’s brief preserve nothing for appellate review. State v. Perry, 565 S.W.2d 841, 843[1] (Mo.App.1978); State v. McClain, 541 S.W.2d 351, 354[7] (Mo.App.1976).

Although we have found that none of defendants’ points relied on have preserved anything for appellate determination, nevertheless we have perused the transcript on appeal and have read in their entirety the briefs of the parties. In accordance with the requirements of Rule 73.-01, V.A.M.R., we have reviewed the case upon both the law and the evidence as in suits of an equitable nature and have given due regard to the opportunity of the trial court to have judged the credibility of the witnesses. We conclude there existed substantial evidence to support the judgment, that it is not against the weight of the evidence, and that it does not erroneously declare or apply the law. Murphy v. Car-rón, 536 S.W.2d 30, 32[1] (Mo. banc 1976).

Judgment affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Dwight COUCH, Defendant-Appellant.
    No. KCD 29185.
    Missouri Court of Appeals, Kansas City District.
    July 31, 1978.

      Kevin Locke, Lee M. Nation, Asst. Public Defenders, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant was found guilty under a second offender information of assault with a deadly weapon with intent to kill or do great bodily harm with malice aforethought. Upon the jury’s finding of guilt, he was sentenced by the court to sixteen years imprisonment.

Sufficiency of the evidence to sustain the conviction is not questioned. The evidence would show that the defendant, an attendant at a health club, enticed a female guest at the health club to return to the health club after closing hours, at which time he struck her on the head and attempted to strangle her. The victim escaped, received stitches to close the laceration, and was treated for various scrapes and abrasions on her body. A knife and a metal chisel with blood stains were found on the premises.

Defendant first contends that the information defectively charges him as a second offender. The information filed June 23, 1976, recited that he had previously been convicted of assault with intent to rape with malice aforethought on September 23, 1976, and imprisoned therefor on September 25, 1975. The evidence clearly showed at the time the second offense was proven by the State that the September 23, 1976 allegation of the information was erroneous. The point is controlled by State v. Garner, 538 S.W.2d 937 (Mo.App.1976), where the Statute of Jeofails, § 545.030 RSMo 1969, now incorporated in Rule 24.11, was applied to an identical situation. The point is without merit.

In the second point of error, the defendant claims the court erred in permitting a records custodian to testify concerning the records of treatment of the victim. The defendant claims he requested discovery of these records, but had not been furnished them prior to trial. The record supports that claim. It would appear that it was error under Rule 25.32 for the State to fail to at least disclose that the records would be offered at trial. The error, however, is not prejudicial under the facts presented here. Rule 25.45 gives the trial court a variety of remedies to employ when it appears that the State has not produced a matter properly requested under the rule. The rule does not require automatic exclusion of evidence not proffered under proper discovery. State v. Helms, 559 S.W.2d 587 (Mo.App.1977). The imposition of any particular sanction is a matter of the exercise of the trial court’s discretion. The basic issue to be resolved is whether or not the exercise of that discretion was abused. That depends upon whether or not the acts of the trial court result in prejudice or fundamental unfairness to the defendant. State v. Moten, 542 S.W.2d 317 (Mo.App.1976). The prejudice in turn depends upon the nature of the charge, the evidence presented, and the role the undisclosed testimony would likely have played in the preparation of a defense. If the evidence was not of such a character as to raise a reasonable likelihood that its prior discovery would have affected the result of the trial, there is no error in failing to impose sanctions for its nondisclosure. State v. Dayton, 535 S.W.2d 469 (Mo.App. 1976). The records were merely corroborative of the victim and the police officer who saw her immediately after the attack, and the trial court, in fact, did afford defense counsel one of the remedies contemplated by Rule 25.45, by permitting defendant a recess to examine the records. There is no claim by the defendant that the time allowed for the examination of the records was inadequate or that a better defense could have been advanced had the records been made available earlier. There is no basis to find that the sanction afforded by the trial court was an abuse of discretion under the facts of this case. State v. Helms, supra; State v. Wendell, 547 S.W.2d 807 (Mo.App.1976). Judgment and conviction are affirmed.

All concur.


author: FLANIGAN, Judge.

text:
    Joseph MATULUNAS, Plaintiff-Respondent, v. W. H. BAKER and Linda M. Baker, husband and wife, Defendants-Appellants.
    No. 10349.
    Missouri Court of Appeals, Springfield District.
    Aug. 4, 1978.

      Milton B. Kirby, Bruce K. Kirby, Kirby, Lewis & Cohick, Springfield, for defendants-appellants.
    Richard T. Martin, Gainesville, for plaintiff-respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

Plaintiff Joseph Matulunas brought this action against defendants W. H. Baker and Linda M. Baker, husband and wife, based upon a breach of implied warranty with respect to the condition of a new house sold by defendants to plaintiff. The jury found in favor of plaintiff and awarded him $1,421.71. Defendants appeal.

Defendants’ first “point relied on” is that the evidence is insufficient to support the verdict. More specifically, defendants contend that two of the elements set forth in Instruction No. 3, plaintiff’s verdict-director, lacked evidentiary support. Defendants do not contend that Instruction No. 3 was inappropriate or in any manner improper in content.

The instruction, based on MAI 25.03, reads:

“Instruction No. 3
Your verdict must be for plaintiff if you believe:
First, defendant sold the house to plaintiff, and
Second, the defendant knew or should have known by using ordinary care of the use for which plaintiff purchased the house, and
Third, plaintiff reasonably relied upon defendants’ judgment as to the fitness of the house for such use, and
Fourth, the house was not fit for such use, and
Fifth, as a direct result plaintiff was damaged.”

Defendants claim that the evidence was insufficient to support a finding of the following: (a) “reasonable reliance on the part of plaintiff,” and (b) “damage to plaintiff as the result of defendants’ acts.” Defendants’ assertion is, in effect, that paragraph Third and paragraph Fifth are not supported by the evidence.

In ruling defendants’ attack upon the sufficiency of the evidence this court must consider the evidence in the light most favorable to the plaintiff. Plaintiff is to be accorded the benefit of every reasonable inference to be derived therefrom and defendants’ evidence, unless favorable to the plaintiff, must be disregarded. Depper v. Nakada, 558 S.W.2d 192, 194[1] (Mo.App.1977). Martin v. Barbour, 558 S.W.2d 200, 203[1] (Mo.App.1977); Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760, 763[1] (Mo.App.1974).

Defendant W. H. Baker, who is a general contractor, built the house. Construction of it was completed around September or October, 1971. On December 9, 1971, plaintiff, as buyer, and defendants, as sellers, entered into a contract for a deed by the terms of which plaintiff was to pay the purchase price in monthly installments. The deed was to be delivered upon full payment. Plaintiff had the right of prepayment. The record does not show when full payment was made, but the defendants executed and delivered to plaintiff a general warranty deed on February 22, 1972.

Before the contract for deed was entered into, defendant Baker showed plaintiff two houses which Baker had built, a white house and a yellow house. Plaintiff bought the white house. Before the purchase was made, Baker informed plaintiff that the white house was much better than the yellow house, although both houses “met or exceeded FHA standards in all respects.” The white house, Baker said, had many extra features which the yellow house lacked. Baker had built approximately 20 houses in Missouri and he told the plaintiff that the white house was the best one he had built and that “it was a deluxe model.”

The lawsuit, filed in early 1975, was occasioned by the fact that the “subflooring” throughout 95 percent of the house rotted out and had to be replaced. In their pre-purchase negotiations Baker and plaintiff had looked under the house. Baker told the plaintiff that the floor was “insulated” but made no other statement concerning the floor.

In May, 1972, plaintiff, who had moved into the house the preceding December, detected a “musty smell” and noticed that the floor “started to crack a little bit.” Some of the floor tiling required Replacement and plaintiff asked Baker to replace it. Baker agreed to do so but failed to keep that promise.

After plaintiff had lived in the house approximately a year, the floor throughout the house began to squeak. Plaintiff got under the house and cut out a layer of polyethylene film, called Vis Queen, which was “between the joists and the subfloor-ing.” After the Vis Queen had been removed, plaintiff saw that the subflooring was “soaking wet and chipping off.” Plaintiff informed Baker “that the floor had rotted out.” Baker agreed to repair the floor but failed to do so.

The floor “got progressively worse” and “actually gave in in the shower room and [plaintiff] went through one part of it.” In December, 1974, plaintiff replaced the entire floor except for two small areas which did not require replacing. Photographs were introduced showing the floor in its defective condition. Plaintiff’s evidence showed that the rotting of the subflooring was caused by an accumulation of water between two layers of Vis Queen. One layer was between the floor joists and the subflooring and the other layer was between the subflooring and the “underlayment.” This “sandwiching” of the subfloor-ing between the two plastic layers caused the accumulation of water and, according to plaintiff’s experts, constituted improper construction. Plaintiff, who had retired after 26 years in the air force, had had very little experience “with construction or building — not enough to comment on.” He admitted that when Baker showed him the white house, “I noticed the plastic.”

In Smith v. Old Warson Development Company, 479 S.W.2d 795 (Mo. banc 1972) our supreme court held that “implied warranties of merchantable quality and fitness exist in the purchase of a new home by the first purchaser from a vendor-builder.” In Old Warson the court enunciated the following principles which apply to litigation of this type. The liability imposed for breach of an implied warranty is of “tort nature” and, in Missouri, the difference between “strict liability” or “implied warranty” is not one of substance. Implied warranties of “merchantable quality” and “reasonable fitness for use” are derived from the common law. The doctrine of implied warranty may be utilized to recover the difference between the value of the product as warranted and its actual value. Negligence, knowledge, or fault of the vendor need not be shown.

Reasonableness of quality or fitness is “essentially” a fact issue for the jury although, of course, there must be sufficient evidence to justify a finding of lack of reasonable quality and fitness. In keeping with a substantial trend to abandon the strict rule of caveat emptor, recovery by a purchaser of a new house, on a theory of breach of an implied warranty of habitability or quality, “is applicable only against that person who not only had an opportunity to observe but failed to correct a structural defect, which, in turn, became latent, i. e., the builder-vendor.” It is immaterial whether the latent defect resulted solely from the activities of the builder-vendor or from the activities of an independent contractor used by him. The builder-vendor is not required to construct a perfect house. The test is one of reasonableness of quality. The duration of liability is also premised on a standard of reasonableness.

Also in Old Warson the court pointed out that the structural quality of a house, by its very nature, is “nearly impossible to determine by inspection after the house is built” because many of the elements of its construction are hidden from view. Moreover, the ordinary purchaser “can determine little about the soundness of the construction but must rely upon the fact that the vendor-builder holds the structure out to the public as fit for use as a residence, and [as] being of reasonable quality.”

In O’Dell v. Custom Builders, Inc., 560 S.W.2d 862 (Mo. banc 1978) the supreme court had occasion to discuss its holdings in Old Warson. The court, at p. 870, said:

“In Old Warson we held that a common law warranty of habitability or quality will be implied in law in the sale of a new home by a builder-vendor so as to protect the purchaser against latent structural defects. Although the court’s discussion therein of the claimed implied warranty used the terms ‘fitness,’ ‘quality,’ ‘merchantability’ and, ultimately, ‘habitability’ interchangeably, it is clear that the warranty imposed in Old Warson on the builder-vendor was closely analogous to that found in § 400.2-314, which is therein termed ‘implied warranty of merchantability.’ ”

The court in O’Dell pointed out that both the common law warranty and the “statutory codification thereof” contained in § 400.-2-314 V.A.M.S. require that the product be reasonably fit for the ordinary purposes for which it is used. The primary significance of Old Warson, said the court in O’Dell, “lies not in its recognition of the warranty of merchantability but in its extension of the warranty by analogy to the sale of a completed new home.”

As previously stated, defendants here make no complaint concerning the appropriateness of MAI 25.03 for use on the instant facts. Their complaint is that some of the factual requirements of the instruction were not met. First, defendants argue, the record fails to show the element of “reliance” on the part of the plaintiff.

Defendants say that during plaintiff’s pre-purchase inspection of the house plaintiff “noticed the plastic when he was under the house” and that it was one of the “additional features” which led plaintiff to buy the house. Plaintiff, say defendants, was “fully apprised of the condition of the house and made his decision to purchase the house based upon the feature which plaintiff now claims was a breach of warranty.”

There was, however, no evidence that plaintiff, prior to the purchase, was aware of the fact that two layers of Vis Queen had been used, nor was there evidence that plaintiff knew such use constituted improper construction. Defendant Baker admitted that he had told plaintiff that the white house “was a good sound constructed house, better constructed than the yellow house, it cost more money to build, it was a good home.” Baker also informed plaintiff that the white house “was a deluxe model.” Plaintiff knew that defendant Baker was an experienced builder and plaintiff also knew that he himself had little or no experience “with construction or building.” The evidence permitted the reasonable inference that plaintiff did in fact rely upon Baker’s judgment as to the fitness of the house for plaintiff’s use as a residence. The mere fact that plaintiff had seen one of the layers of Vis Queen prior to the purchase does not destroy that inference. There is no merit in defendants’ contention that the “reliance” element of paragraph Third of Instruction No. 3 lacked evidentiary support.

Defendants cite Barrett v. Jenkins, 510 S.W.2d 805 (Mo.App.1974) in support of their claim that plaintiff relied upon his own inspection and not upon defendants’ judgment. The facts in Barrett are readily distinguishable from those here. In Barrett defendant built the house in accordance with plans and specifications furnished him by the plaintiff. The court in Barrett distinguished that situation from the one in Old Warson (and here), the latter involving the purchase from defendants of a completed home.

In support of their contention that paragraph Fifth of Instruction No. 3 was not supported by the evidence, defendants argue that the rotting of the flooring was not due to defendants’ improper construction but was due to plaintiff’s conduct in leaving wet towels and wet mats on the bathroom floor. It was also due, say defendants, to the fact that plaintiff “kept the vents in the foundation closed during the winter time.” The evidence concerning the wet towels and mats emanated solely from defendant Baker and, unless it is favorable to plaintiff [defendants insist it is unfavorable] it must be disregarded in determining the sufficiency of the evidence.

Plaintiff did admit, on cross-examination, that in the winter time he closed the vents in the foundation. There was, however, no testimony from plaintiff that that fact had any causal connection with the rotting of the subfloor. Defendant asks this court to interpret his own testimony as showing such causation but that testimony, even if subject to that construction, is of no aid to plaintiff and may be disregarded. Plaintiff’s evidence was to the effect that the rotting was caused by defendants’ installation of the two layers of Vis Queen.

There is no merit in defendants’ contention that paragraph Fifth of Instruction No. 3 lacked evidentiary support. It follows that defendants’ first “point relied on” has no merit.

Defendants’ second “point relied on” is that the trial court erred in giving Instruction No. 5, MAI 4.01, the measure of damages instruction tendered by plaintiff, for the reason, say defendants, that MAI 4.02 is the instruction which should have been given. Plaintiff counters that even if the giving of Instruction No. 5 was error, defendants were not thereby prejudiced.

The trial took place in January, 1976. At that time the only MAI instructions which plaintiff’s counsel here might have considered as being appropriate were MAI 4.01 (Measure of Damages—Personal and Property), MAI 4.02 (Measure of Damages—Property Only), and MAI 4.03 (Measure of Damages—Property—Misrepresentation).

If MAI 4.02 was the one which should have been used, authority exists that the use of MAI 4.01 in its stead was prejudicial error. State ex rel. State Highway Commission v. Beaty, 505 S.W.2d 147, 154[7] (Mo.App.1974); Ogle v. Terminal Railroad Association of St. Louis, 534 S.W.2d 809, 812 (Mo.App.1976). Neither of those cases, however, involved breach of an implied warranty of habitability of a new house.

In DeArmon v. City of St. Louis, 525 S.W.2d 795 (Mo.App.1975) defendant, on a given day, caused damage to plaintiff’s building while razing an adjacent structure. The St. Louis district of this court, in approving the trial court’s use of MAI 4.02, said, “There is no doubt that MAI 4.02 is an applicable MAI here.” The court also set forth the rules governing the measure of damages for “injury to real property.” It pointed out that the measure of damages, generally, is “the difference in value immediately before and immediately after the event causing the injury (diminution-in-value test) . . . However, where damage to land or a building thereon can be restored to its former condition at a cost less than the diminution in value, cost of restoration becomes the measure. Courts have said that the cost-of-repair test is an exception to be used only where the amount of damages is insignificant as compared to the value of the property as a whole and involves only a small part thereof.” DeArmon, at p. 800.

Defendants make no reference to the possible use or modification of MAI 4.03. The Notes on Use under MAI 4.03 read as follows:

“This damage instruction is to be used where plaintiff is suing for misrepresentations. It may also be used in breach of warranty cases (where supported by the evidence) if plaintiff elects this measure of damages. Where plaintiff has evidence of other damages (such as personal injuries suffered because the property was not as warranted), MAI 4.01 should be used.” (Emphasis added.)

The Notes on Use [Supplemental] to MAI 4.02 have a “cost of repair” alternative but no such alternative is specifically stated for MAI 4.03.

Plaintiff’s evidence showed that, “by reason of the defective condition of the floor,” the fair market value of the real estate was decreased “by at least $3,000.” In effecting the repairs, plaintiff hired a carpenter and purchased materials. The carpenter’s bill was $476 and the materials cost $945.71. The sum of those two figures is the amount of the verdict. Plaintiff also testified that he and his wife had worked for 214 hours in connection with the floor repair and had incurred other expenses, all of which plaintiff estimated at $1,297.66.

Neither side has cited a Missouri case addressing the question of the proper measure of damages instruction to be used in an action of this nature. In Smith v. Old Warson Development Company, 479 S.W.2d 795 (Mo. banc 1972), discussed previously in this opinion, the court at p. 798 said: “In addition to the use of the theory of implied warranty to recover for personal injuries or property damage, the doctrine has also been successfully utilized to recover the difference between the value of the product as warranted and its actual value.”

Missouri courts have dealt with the use of the appropriate measure of damages in cases involving the breach of a construction contract. Several are collected in 76 A.L. R.2d 805 (Cost of correction or completion, or difference in value, as measure of damages for breach of construction contract). See for example Hotchner v. Liebowits, 341 S.W.2d 319, 332[25] (Mo.App.1960) and Southwest Engineer Co. v. Reorganized Sch. Dist. R-9, 434 S.W.2d 743, 751[20] (Mo.App.1968).

In the case at bar defendants did not contract to build a house for plaintiff.

They sold him a completed house and the land on which it was situated. In some cases the value of the house would constitute a major percentage of the value of the house and land considered as a unit. In others the value of the house alone might be only a small part of the value of the house and land. Building contract cases, where the defendant’s contractual obligation is limited to the structure itself, may be helpful but not necessarily controlling. Frequently in actions involving damage to real estate, such as DeArmon, supra, only one occurrence, taking place on a specified date, is involved. The rotting of the floor here was a gradual development, although it may be argued that the rotting was the effect of the latent defect rather than the defect itself, the latter being the improper sandwiching of the Vis Queen. These factual distinctions may require appropriate tailoring of verdict-directing and measure of damages instructions.

It is at least arguable that plaintiff’s counsel here was justified in not using MAI 4.02, or a modification thereof, because (a) MAI 4.03 might have been more appropriate — the Notes on Use under 4.03 do make specific mention of “breach of warranty cases,” and (b) the house here was not “damaged,” at least in the sense that it suffered from the effects of an outside force occurring on a specific occasion.

It is also arguable that plaintiff’s attorney concluded not to use MAI 4.03 because his evidence was to the effect that the damages under the “diminution-in-value test” were greater than those under the “cost of repair test,” De Armón, supra, and MAI 4.03 did not contain the “reasonable cost of repair” alternative which is found in the Notes on Use [Supplemental] to MAI 4.02.

In O’Dell v. Custom Builders Corporation, 560 S.W.2d 862 (Mo. banc 1978), the theory of liability was not the same as the theory advanced in Old Warson and in the case at bar. However, O’Dell involved defects in a house occasioned by faulty design and faulty construction. A modified form of MAI 4.01 was used. Although the instruction was not specifically attacked on the ground advanced by defendants here, the court found no error in its use.

If the trial court erred in giving Instruction No. 5, an issue which is left undecided, and if this court found the error to be a prejudicial one, and this court finds otherwise, the case would be remanded for retrial on the issue of damages only. The verdict was clearly for the right party and defendants would not on this record be entitled to a retrial on the liability issue.

“No appellate court shall reverse any judgment, unless it finds that error was committed by the trial court against the appellant, materially affecting the merits of the action.” (Emphasis added.) Rule 84.-13(b). This court has seen the photographs showing the defects. The verdict represented the total of repair expenses incurred by plaintiff, documented by cancelled checks and material bills. Defendants did not dispute these items nor did they dispute plaintiff’s evidence that he (and his wife) had done additional repair work for which they requested, but the jury denied, recovery. Defendants make no claim here that the verdict was excessive. This court concludes that defendants were not prejudiced by the giving of Instruction No. 5.

The judgment is affirmed.

All concur.

      . The record is not clear but it may be that defendant Linda M. Baker had no part in the construction of the house. As the opinion reflects, both defendants were the sellers of the house. Defendant Linda makes no claim that her liability position differs from that of her husband.

      . As previously pointed out in this opinion, the supreme court held, in O’Dell, that the warranty imposed in Old Warson on the builder-vendor is closely analogous to that found in § 400.2-314 V.A.M.S., which is therein termed “implied warranty of merchantability.” § 400.-2-314 is identical to § 2-314 of the Uniform Commercial Code. The following authorities hold that “reliance” is not an element of the warranty of merchantability under § 2-314: U. S. Fibres, Inc. v. Proctor & Schwartz, Inc., 509 F.2d 1043, 1046[6] (6th Cir. 1975); Eichenber-ger v. Wilhelm, N.D., 244 N.W.2d 691, 696[6] (1976); S-Creek Ranch, Inc. v. Monier & Co., Wyo., 509 P.2d 777, 782[6] (1973); Hinderer v. Ryan, Wash.App., 499 P.2d 252, 254[1] (1972); Robinson v. Williamsen Idaho Equipment Co., Idaho, 498 P.2d 1292, 1301[21] (1972). See Anderson, Uniform Commercial Code (2d Ed., Vol. 2, § 2-314:14, p. 537.)
      “[T]he implied warranty of fitness for the particular purpose is given when the buyer is relying on the seller’s skill and judgment to select or furnish suitable goods. On the other hand, there is no [Uniform Commercial] Code provision expressly indicating that there must be reliance in connection with the implied warranty of merchantability.” 63 Am.Jur.2d Products Liability § 96, p. 101.

      . Defendant Baker testified that he went to plaintiffs bathroom “on many occasions, 1 have got a kidney problem.”

      . Courts in other states, which permit a purchaser of a new house to recover from the builder-vendor for breach of an implied warranty of habitability, have made various statements concerning the appropriate measure of damages.
      “When the warranties of workmanlike construction or suitability for habitation are breached, damages may be measured in two ways. The ordinary measure is the difference between the actual value at the time of sale and what the value would have been if it had been as warranted. When, however, the buyer retains the property, the measure of damages may appropriately be the cost of bringing the property into conformity with the warranty.” Hoagland v. Celebrity Homes, Inc., Colo.App., 572 P.2d 493, 494[4, 5] (1977).
      “[T]he cost of remedying the defects or deficiencies is the proper measure of damages for defective or deficient construction.” Hanavan v. Dye, 4 Ill.App.3d 576, 281 N.E.2d 398, 401 [2] (1972).
      “[T]he vendee can maintain an action for damages for such breach ‘either (1) for the difference between the reasonable market value of the subject property as impliedly warranted and its reasonable market value in its actual condition, or (2) for the amount required to bring the subject property into compliance with the implied warranty.’ ” Griffin v. Wheeler-Leonard & Co., Inc., 290 N.C. 185, 225 S.E.2d 557, 567[6, 7] (1976).
      “The measure of damages has been held to be the market price or reasonable cost of correcting the defects.” Centrella v. Holland Construction Corp., 82 Misc.2d 737, 370 N.Y.S.2d 832, 835[5] (1975).
      “The rule in Oregon is that the cost of replacement or repair is the correct measure of damages for defects in work unless that remedy generates undue economic waste. .
      ‘Only if the cost [of repair] is disproportionate does the standard of difference in value become applicable at all.’ ” Beik v. American Plaza Co., 280 Or. 547, 572 P.2d 305, 310 (1977).
      “[T]he measure of damages for construction defects which can be remedied without impairing the building as a whole is the reasonable cost of remedying the defects.” Moore v. Wer-ner, 418 S.W.2d 918, 920[9] (Tex.Civ.App. 1967).
      Where the defects were “curable by repair or replacement, ... the reasonable expense of such remedial action is highly probative of the difference in value between the house as warranted and the house as built. . . No
      error appears in the general use by the trial court of reasonable remedial expense as a measure of recovery.” Bolkum v. Staab, 133 Vt. 467, 346 A.2d 210, 212[3-5] (1975).

      . In Stamm v. Reuter, 432 S.W.2d 784 (Mo. App.1968), a suit by homeowners against a contractor who had installed a defective roof, plaintiffs’ evidence showed that the cost of installation of a new roof and the amount of “necessary expenditures for cleaning, paint and other items,” totaled $3,333.55. Plaintiffs’ evidence also showed “that the difference in market value of their residence with the leaky roof and what it would have been with a good roof was from $5,000 to $6,500.” The court held that $3,333.55 was the limit of plaintiffs’ recovery “since that sum will make them whole.”


author: WILLIAM S. RUSSELL, Special Justice.

text:
    Winfield DUNN et al., Appellants, v. W. F. JAMESON AND SONS, INC., et al., Appellees.
    Supreme Court of Tennessee.
    July 24, 1978.
    Brooks McLemore, Atty. Gen., William C. Koch, Jr., Deputy Atty. Gen., Nashville, Edward G. Grogan, Heiskell, Donelson, Adams, Williams & Kirsch, Memphis, for appellants.
    John B. Mack, Clifton & Mack, Bruce S. Kramer, Rosenfield, Borod, Bogatin & Kremer, Heiskell Weatherford, Canada, Russell & Turner, DeWitt M. Shy, Jr., Burch, Porter & Johnson, Erich W. James, Waring, Cox, James, Sklar & Allen, Alan R. Strain, Nelson, Norvell, Wilson, McRae & Sevier, Memphis, for appellees.
   WILLIAM S. RUSSELL, Special Justice.

The dispositive questions in this case are (1) whether or not a suit by the Board of Regents of the State University and College System is exempt because of the provisions of T.C.A. § 28-115 from the three year statute of limitation set out in T.C.A. § 28-305, to inter alia suits, for damages to property; and (2) whether or not under this record the trial judge was correct in dismissing this suit against two defendants on the further ground that there was no privity of contract between them and the plaintiff. For the reasons hereinafter set out, we hold that the trial court erred in holding that the aforesaid statute of limitation barred this action; and we further hold that the dismissal as to the two defendants on the additional ground of no showing of privity of contract was premature and hence erroneous.

This action arose from the construction of a physical education building at Memphis State University. The roof on the new building turned out to be defective. This is a suit brought by the Board of Regents of the State University and College System against the architects who designed and supervised the construction of the building, the general contractor, the roofing subcontractor , the roofing material supplier, the roofing material manufacturer, and the surety upon the contractor’s and various subcontractors’ performance bond.

This is the second time that this case has been before this court, following the trial court’s dismissal of it as to all defendants. The first time, the trial court held that the plaintiff’s causes of action all simultaneously accrued on November 15, 1971, and were extinguished after the passage of three years; and also found that there was no privity of contract between the material supplier and the plaintiff. This court, upon the first appeal, held that-a determination of the correctness of the trial judge’s order of dismissal was dependent upon the terms of the contract and specifications under which the roof was installed. We noted that the contract and specifications were not filed in the trial court and, consequently, we did not know the parties to the several contracts, or the rights of the plaintiff or the obligations of the several defendants. We said:

“ * * * It is apparent from the allegations of the complaint that as to one or more of the defendants, plaintiff’s cause of action did not accrue when the leaks first appeared in the roof of the building as found by the trial judge, but accrued when the defendants — or at least those defendants bound by the contracts and specifications- — repudiated or breached the contractual provisions guaranteeing the roof and all related work against leaks for a specified period after acceptance of the building. These dates are not set forth in any of the pleadings filed in these actions. With the record in this state, the trial judge was not in a position to rule on the several motions to dismiss, nor are we. We are, therefore, setting aside his orders sustaining the motions to dismiss and are remanding the action for the filing of the contract and specifications and for such other action as the trial judge deems advisable when he considers the contract and specifications along with the other allegations of the complaint.”

When the case reached the trial court the plaintiff was permitted the file an amended complaint, to which was appended the agreement between the owner and the architect, the agreement between the owner and the general contractor, and the performance bond of the contractor and surety. (AIA Document A201, incorporated by reference into the contract between the owner and the general contractor, was not filed as an exhibit, but it was appended to the appellant’s brief.) The record still does not contain copies of any agreements or warranties entered into between any of the various defendants, although they are alluded to in various pleadings and contemplated by the general contract.

With the filing of the amended complaint, and answers and various cross-complaints, and motions to dismiss by two of the defendants , the trial court again dismissed the action against all of the defendants. Despite our holding upon the initial appeal that the plaintiff’s cause of action did not accrue when the leaks in the roof first appeared, the trial judge again held that it did then so accrue as to the architects, the general contractor, the roofing subcontractor, the roofing supplier, the roofing manufacturer and the surety, and that three years from that date had passed before suit was filed. Furthermore, as to the roofing manufacturer and as to the roofing supplier, the trial court held that in addition to the suit being barred as to them because of the three year statute of limitation (T.C.A. § 28-305), it was also barred as to these two defendants because of the absence of privity of contact.

While we did not say so upon the first appeal, because as we said in our opinion it was obvious that the claimed statute of limitation had not run as to some of the defendants, even if it was applicable, upon this appeal we face the question of the applicability of this statute to this plaintiff State agency at the threshold, because it is dispositive. We need not decide if this is a property damage case (as contrasted with being purely a suit upon a contract, or perhaps for breach of warranty), to say if T.C.A. § 28-305 applies or not; nor must we decide when this cause of action accrued. We hold straightaway that the clear and unambiguous provisions of T.C.A. § 28-115 exempt the State from the ambit of this statute of limitation. The language is: “The provisions of this title do not apply to actions brought by the state of Tennessee, unless otherwise expressly provided.” This statute is a part of Title 28, “Limitations of Actions”; as is T.C.A. § 28-305, the statute of limitation relied upon by these defendants. Since there is nowhere an express provision making T.C.A. § 28-305 applicable to an action by the State, then it simply and clearly is not. When the State is acting in its sovereign capacity, it is not barred by any statute of limitation unless the particular statute of limitation expressly provides that it applies to actions brought by the State. In re Estate of Darwin, 503 S.W.2d 511 (Tenn.1973).

There can be no doubt that the State, in entering into the contracts involved in this case through its agency (the plaintiff), was acting in furtherance of education. As education is a governmental function, see, e. g., Applewhite v. Memphis State University, 495 S.W.2d 190 (Tenn.1973), the State was acting in its sovereign capacity in this instance. In Applewhite, supra, this court expressly held that Memphis State University was entitled to sovereign immunity. The plaintiff in the case at bar is the State. For that reason, the three year statute, even if otherwise applicable, is not a bar to this suit.

T.C.A. § 28-305 is not applicable, because it does not expressly say that it is, as required for applicability to the State by the provisions of T.C.A. § 28-115. The common law rule, now codified in T.C.A. § 28-115, provides that statutes of limitation against the State as the sovereign are looked upon with disfavor, and will not be enforced unless there is a clear and explicit authority therefor given by statute. Anderson v. Security Mills, 175 Tenn. 197, 133 S.W.2d 478 (1939). See also State ex rel Cates v. Standard Oil Co., 120 Tenn. 86, 110 S.W. 565 (1907); State ex rel Dossett v. Obion County, 188 Tenn. 538, 221 S.W.2d 705 (1949); and Nelson v. Loudon County, 176 Tenn. 632, 144 S.W .2d 791 (1940).

We hold that the trial judge erred in dismissing this suit as being barred by the state of limitation (T.C.A. § 28-305).

The remaining question involves the correctness of the trial judge’s ruling that the suit be dismissed as to the roofing material supplier and as to the roofing material manufacturer for want of privity of contract. We again hold, as we did upon the initial appeal, that the trial judge was not in a position to rule upon this question, given the state of the record.

We explicitly pointed out in our first opinion the substance of civil procedure Rule 10.03, “which details the circumstances under which exhibits referred to in a complaint shall be a part of the pleadings for all purposes”. Our suggestion was substantially ignored. Despite the clear fact that this whole contractual scheme explicitly provided for subcontracts, and warranties, the pleadings (which were all that the trial court had before him) nowhere include the full and pertinent substance of these agreements. The defensive pleadings filed also allude to such other agreements .

We were invited by counsel, upon the oral argument of this appeal, to furnish detailed guidance for the trial court should we reverse the dismissal and remand the case for trial. We judge that this case has not yet properly progressed to a point where all of the controlling facts have been established so that we can ferret out the controlling issues of law. For example, the privity question could very well turn upon a third party beneficiary concept, depending at least to a substantial degree upon subcontracts or sub-subcontracts that probably exist and which the court has not yet seen. See McCall v. Towne Square, Inc., 503 S.W.2d 180 (Tenn.1973), wherein the third party beneficiary concept was applied by this court to a building construction contractual situation. There is also a body of law in this state which holds that the requirement of privity is dispensed with, when it might otherwise be required, if the party seeking to invoke that defense has been guilty of misrepresentation in the matter. Ford Motor Company v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966); Walker v. Decora, Inc., 225 Tenn. 504, 471 S.W.2d 778 (1971). It might well be developed in the proof in this case that there were misrepresentations printed and circulated relevant to this roofing material. We cannot so hold, nor could the trial court yet, because there is not a factual determination in this record of the exact nature and cause of this roof failure.

To summarize, we hold that this record will not at this time support the trial judge’s holding that this suit must be dismissed as against the roofing material supplier and as against the roofing material manufacturer for want of privity of contract. We have suggested at least two possible theories whereunder it might in time be shown that such ruling was erroneous. We could postulate others, but that is not our proper function. We hold that the trial judge’s ruling in this respect is at best premature.

For the reasons hereinbefore set out, the judgment of the trial court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

HENRY, C. J., and COOPER, HARBI-SON, JJ., and LLOYD TATUM, Special Justice, concur.

      . 28-115. Actions by state.- — The provisions of this title do not apply to actions brought by the state of Tennessee, unless otherwise expressly provided.

      . 28-305. Property tort actions — Statutory liabilities — Alienation of affections. — Actions for injuries to personal property, . . . civil actions based upon the alleged violation of any federal or state statute creating monetary liability for personal services rendered, or liquidated damages or other recovery therefor, when no other time of limitation is fixed by the statute creating such liability, and actions for alienation of affections, shall be commenced within three (3) years from the accruing of the cause of action.

      . Matthiessen and Hegeler Zinc Company and Reynolds Aluminum Supply Company

      . Wiseman-Bland and Foster, Architects and Engineers, Inc. and Eason, Anthony, McKinnie and Cox, Inc.

      . W. F. Jameson and Sons, Inc.

      . Ben J. Malone Company

      . Reynolds Aluminum Supply Company

      . Matthiessen and Hegeler Zinc Company

      . United Pacific Insurance Company

      . At this time a new defendant, Union Pacific Insurance Company, surety, was added as a defendant.

      . Motions to dismiss were filed only by the general contractor and by the roofing material manufacturer. Others filed pleas relying upon the statute of limitation, and apparently there was an agreement to allow an oral presentation of the motion to dismiss and let it be applicable to all of the defendants.

      . It is noteworthy that, in the strongest position contended for by the defendants, the three year statute of limitation had run a mere twenty days before suit was filed.

      .From our analysis of this case, it is very doubtful that a three statute of limitation would bar it, because of both an accrual question and the fundamental nature of the claims. It is, however, unnecessary for us to decide that question.

      . The contract with the architect provides: 7. GENERAL ADMINISTRATION
      The Architect will endeavor by general administration of the construction contracts to guard the Owner against defects and deficiencies in the work of the contractors, but he does not guarantee the performance of their contracts.
      The AIA Document A201 provides: 4.10.1 The Contractor shall be responsible to the Owner for the acts and omissions of all his employees and all subcontractors, their agents and employees, and all other persons performing any of the work under a contract with the Contractor.
      * * * * * *
      5.1.1 A Subcontractor is a person or organization who has a direct contract with the Contractor to perform any of the work at the site. The term Subcontractor is referred to throughout the Contract Documents as if singular in number and masculine in gender and means a Subcontractor or his authorized representative.

      . For example, the AIA Document A201 provides, inter alia:
      4.5 WARRANTY
      4.5.1 The Contractor warrants to the Owner and the Architect that all materials and equipment furnished under this Contract will be new unless otherwise specified, and that all work will be of good quality, free from faults and defects and in conformance with the Contract Documents. * * *
      4.5.2 The warranty provided in this paragraph 4.5 shall be in addition to and not in limitation of any other warranty or remedy required by law or by the Contract Documents.

      .In the answer of the architects, we find: 11. These defendants * * * admit that all roofing and related work was to be water tight and guaranteed by the sub-contractor to remain so for a period of five (5) years after completion of the building.
      In the answer of the general contractor: 14. * * * This defendant did not contract to purchase the materials nor to install them, this being handled by its subcontractor, Ben J. Malone Company; * * *
      19. * * * The 5 year guarantee of the roof was to be by the subcontract and not the defendant * * * 37. If the roofing material did not comply with any warranty attached thereto or which would apply it admits this would be the responsibility of the manufacturer and its representative, Reynolds.
      In its cross-complaint, the general contractor: 6. * * * avers that Ben J. Malone Company entered into a subcontract with it dated May 8, 1969 for the performance of Sections 7B.1 through 7B.9 inclusive of the contract; that pursuant to section 18(a) of said subcontract the said cross-defendant guaranteed its work against all defects of material or workmanship as called for in the contract documents or if none for a period of one (1) year from date of completion of said work and acceptance by the owner.
      The answer of Reynolds Aluminum Supply Company, the supplier, says:
      2. This defendant admits that it filled an order from Ben J. Malone Company, Inc., the roofing subcontractor * * * (The details of this transaction do not appear, nor do the pleadings


author: FONES, Justice.

text:
    Mary DICKERSON, Appellant, v. TROUSDALE MANUFACTURING COMPANY and the Home Insurance Companies, Appellees.
    Supreme Court of Tennessee.
    Aug. 21, 1978.

      Robert E. Lee, Lebanon, for appellant.
    Don R. Binkley, Nashville, for appellees.
   OPINION

FONES, Justice.

This is a workman’s compensation case; plaintiff appeals from the finding of the trial court that her injury was not related to her employment.

Plaintiff testified that, while employed at Trousdale Manufacturing Co., she went to the bathroom and fell down, injuring her back. Plaintiff testified that the floor was wet and slippery, and was not level, which hazards caused her to fall. There were no other witnesses to the accident itself.

The trial court’s findings of fact were dispositive of plaintiff’s claim, as follows:

“The Court finds that the Plaintiff’s fall did not have its origin in a risk connected with her employment nor was it causally connected therewith. The Court further finds that the Plaintiff fell as a result of an idiopathic attack or blackout spell unrelated to her work or employment, and that the Plaintiff’s fall was not due to any risk involved in her employment by inference or otherwise. The Court, therefore, is of the opinion that the Plaintiff herein has not established by a preponderance of the evidence that her fall and injury arose out of and in the course of her employment, and that the case should be dismissed.”

There is considerable material evidence in the record to support this finding. Doctor E. K. Bratton, the physician who treated plaintiff, testified by deposition that plaintiff told him that her fall resulted from a fainting spell. Sue Durham, the payroll and personnel clerk at Trousdale Manufacturing, testified that she had visited plaintiff in the hospital on the day of her fall, and plaintiff stated that she did not know what had happened to cause her fall, and that she had passed out again after being brought to the hospital. The two employees who found plaintiff unconscious on the bathroom floor testified that the bathroom floor was constructed of rough concrete, was level, and was dry; they also testified that the only loose thing in the bathroom over which one might trip was a chair, and that this was standing neatly against a wall some distance from plaintiff when they found her. Another employee testified that he had helped put plaintiff on a stretcher after her fall, and that her clothes were not wet; he also confirmed the testimony of other defense witnesses concerning the absence of hazards in the bathroom.

Thus, there is material evidence that plaintiff’s fall did not result from any hazard incident to her employment, and that the cause of the fall was idiopathic. Where the cause of a fall is due to some condition personal to the employee, and is not causally related to some hazard incident to the conditions of the employment, injury resulting therefrom is not compensable under our workmen’s compensation statutes. Sud-duth v. Williams, 517 S.W.2d 520 (Tenn. 1974).

This Court will not disturb the finding of the trial court in a workmen’s compensation case if there be any material evidence to support it. E. g., Davis v. Gulf Ins. Group, 546 S.W.2d 583 (Tenn. 1977).

Defendants-appellees have filed a motion in this Court seeking costs and expenses incurred in defense of this appeal, in accordance with T.C.A. § 27-124. Plaintiff’s appeal depended on the absence of any material evidence to support the trial court’s findings of fact. In our opinion, the presence in this record of substantial material evidence directly supporting the trial judge’s findings is so clear that this appeal must be characterized as frivolous. On the authority of Davis v. Gulf Ins. Group, supra, and for the reasons stated therein, this case is remanded to the trial court for a determination of appellees’ reasonable expenses in defending this appeal, which together with court costs shall be taxed against appellant.

Affirmed and remanded.

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


text:
    CITY OF MURFREESBORO et al., Appellants, v. Gary DAVIS, d/b/a Davis Cee Bee, Appellee. CITY OF MURFREESBORO et al., Appellants, v. Eddie PILKINGTON, d/b/a Tom Thumm Market, Appellee.
    Supreme Court of Tennessee.
    Aug. 21, 1978.

      Thomas L. Reed, Jr., Reed & McHale, Murfreesboro, for appellants.
    John S. Lansden, Murfreesboro, for ap-pellees.
   OPINION

FONES, Justice.

Davis and Pilkington filed separate applications for permits to sell packaged beer at locations in the City of Murfreesboro. Both permits were denied by the city recorder and the City Council. Davis and Pilkington filed petitions in the Chancery Court for the statutory writ of certiorari pursuant to T.C.A. § 57-209, alleging that the city had issued permits and licenses for the sale of beer at locations within 2,000 feet of schools, churches or other places of public gathering and denial of their permits on that ground deprived them of the equal protection of the law. The City answered, denying discriminatory enforcement and asserting that Davis and Pilkington were denied permits because their locations do not comply with the 2,000-foot ordinance and were in highly congested areas rendering the sale of beer therein contrary to the best interest of the people of the City of Mur-freesboro.

The learned Chancellor found discriminatory application of the 2,000-foot rule rendered that ordinance of no force and effect, and ordered that permits of license be issued in accord with the applications of Davis and Pilkington. The congested area defense was overruled. The Chancellor noted in his memorandum opinion that it was only casually mentioned in the proof and not seriously relied upon.

The Chancellor found that Shakey’s Pizza Parlor-was located the following distances from the schools, churches or other places of public gathering indicated: 1946.8 feet from McFadden Elementary School; 1202.6 feet from the Pentecostal House of Prayer; 1070.6 feet from the State Vocational School; 1423.3 feet from the ball field at the Agricultural Center; 1808.3 feet from the Agricultural Center; 1740 feet from the Franklin Road Church of Christ. Those distances were shown on Exhibits 6 and 17 introduced by stipulation of all parties.

The Chancellor found that Oriental Gardens was issued a package beer permit in spite of a footnote placed on the application that it was within 1825 feet of a building located on church property used as a gymnasium; that the gymnasium was “part of a complex of buildings used by the Catholics in the community”. We add to that finding that the deposition of Father Joseph Brinn established that the use of the gymnasium clearly made it an integral part of the religious, cultural and social activities of the church and for the purpose of proximity to a “church”, pursuant to a 2,000 foot rule, indistinguishable from the church or sanctuary where the more formal worship services were conducted.

The third violation found by the Chancellor was a 7-11 store within 2,000 feet of a dormitory building on the Middle Tennessee State University Campus.

The distances involved in the three violations were measured by the straight-line method. In Jones v. Sullivan County Beer Board, 200 Tenn. 301, 292 S.W.2d 185 (1956), this Court established the rule that in the application of a 2,000-foot requirement authorized by the Legislature under T.C.A. § 57-205, the measurement is made in a direct line. The rule was approved in Serv-U-Mart, Inc. v. Sullivan County, 527 S.W.2d 121 (Tenn.1975).

Appellant, City of Murfreesboro, admits that the straight-line method was applicable prior to the date it amended its ordinances, but insists that an amendment effective June 4, 1976, governs these applications and that there is no evidence in the record to show the measurements over the public streets; that the amendment has therefore rendered appellees’ claim of discretionary enforcement moot. But the real thrust of the City’s advocacy is that the question of whether or not there has been any discriminatory application of its distance ordinance must be tested by the amended ordinances rather than the ordinances in effect prior to June 4, 1976, and further that these amended ordinances have cured all violations. That position is untenable.

Pilkington filed his application for a beer permit on April 10, 1976, and the application of Davis was filed on May 10, 1976. Their cases were consolidated for trial in the Chancery Court with the case of Robert Eugene Fortner v. City of Murfreesboro. Fortner’s case was severed on appeal and will be dealt with in a separate opinion, but the Bill of Exceptions is the same in all three cases. Fortner filed an application for a permit to sell beer for consumption on the premises on May 4, 1976. The three applicants acknowledged on the face of each of their applications that the respective locations were within 2,000 feet of a school, church, or public gathering place. Fortner’s appeal to the City Council from the city recorder’s denial of his permit was filed May 13, 1976. His lawyer appeared before the City Council on May 20, and June 3, requesting action on his application, which was not forthcoming. In fact, the Murfreesboro City Council has not acted on his request to this day.

On May 20, 1976, the Murfreesboro City Council passed a number of amendments to its beer ordinances which became effective fifteen days later, June 4, 1976. The changes relevant here are summarized as follows: (1) enacted a section imposing a 1,000 foot rule for locations selling packaged beer, leaving the 2,000 foot rule applicable to locations selling beer for consumption on the premises; (2) defined “school” to mean only primary or secondary public school buildings; (3) defined the method of measurement as from the property line of the applicant to the property line of the institutions or facilities “by way of the closest route between same over public streets and not crossing any property lines.”

The Chancellor found that:

“[T]he action of the City Council to amend was an acknowledgement that it had discretionarily issued permits in violation of its ordinance and no revocation action had been taken with respect to same. It further finds that the only effort to correct the difficulty was by the amendment and that a fair interpretation of Councilman Jackson (and all the Council’s) testimony acknowledged this to be the case.”

We concur in that finding but it is not essential to the decision in this case. Parenthetically, Councilman Jackson acknowledged that some of the Shakey’s violations had been called to the Council’s attention but they had rejected revocation of that permit because it would be harmful to “innocent third parties.”

The permits and licenses issued to Sha-key’s, Oriental Gardens and the 7-11 Store were issued pursuant to the distance ordinance in effect prior to June 4,1976, and in violation thereof. Discriminatory enforcement having been established, any distance ordinance is completely removed as a valid ground for denial of a beer permit. Seay v. Knox County Quarterly Court, 541 S.W.2d 946 (Tenn.1976).

In Serv-U-Mart, Inc. v. Sullivan County, supra, we held that the discriminatory enforcement of a 2,000 foot rule, authorized by T.C.A. § 57-205, invalidates the rule. In Seay v. Knox County Quarterly Court, supra, we held that a showing that three establishments in the county retained their licenses in violation of the rules supported a finding of discriminatory enforcement, invalidating its 2,000-foot rule.

Discriminatory enforcement of a beer permit distance ordinance cannot be rectified by post facto amendments. Restoration of the validity of - a distance ordinance can only be achieved by revocation or other elimination, such as attrition, of the discriminatorily-issued permits and licenses.

The Chancellor also held that the City could not redefine “school” and “public meeting place”, but held that it could define the method of measurement contrary to the definition in Jones v. Sullivan County Beer Board, supra, and Serv-U-Mart, Inc. v. Sullivan County, supra. Terms that have established definitions by a combination of statute and case law must be given uniform application by the cities and counties of this State in exercising the powers granted them by the Legislature to regulate the sale of beer. The power to “otherwise specifically provide[d] by statute” a method of measurement resides in the Legislature, not the cities and counties of this State. The fact that cities have been granted wider discretionary powers than counties by T.C.A. § 57-208 in the area of fixing zones and territories, providing hours of opening and closing and such other rules and regulations as will promote public health, morals and safety does not authorize municipal ordinances conflicting with these established definitions. See State v. Hill, 547 S.W.2d 916 (Tenn.1977); State v. Mayor of Fayetteville, 196 Tenn. 407, 268 S.W.2d 330 (1953); and Robinson v. Mayor of Franklin, 20 Tenn. 156 (1839).

The decree of the Chancery Court of Rutherford County is affirmed and the cause is remanded for the enforcement thereof. Costs are adjudged against the City of Murfreesboro.

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

      . Jones v. Sullivan County Beer Board, 200 Tenn. at 306, 292 S.W.2d at 187.