author: BILLINGS, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jeffrey Scott DALTON, Defendant-Appellant.
    No. 11114.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 21, 1979.

      John D. Ashcroft, Atty. Gen., James R. Cumbee, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Dale H. Close, Richland, for defendant-appellant.
   BILLINGS, Presiding Judge.

Defendant Jeffrey Scott Dalton was tried and found guilty by a Greene County jury of two counts of child molestation [§ 563.-160, RSMo 1969] and sentenced to consecutive two and one-half years prison terms. We affirm.

Defendant was baby-sitting with two brothers, K-, age 11, and S_, age 10, at the victims’ home. The evidence is uncon-troverted that at about midnight the defendant, among other things, fondled the private parts of both boys.

Defendant first contends that the court committed prejudicial error in admitting testimony, from both of the boys, that constituted evidence of another offense of child molestation of each boy separate and distinct from the charged fondling offense. The brothers, during the course of their testimony, did describe certain other indecent, lewd and sordid acts by the defendant.

The general rule in this state is that proof of the commission of a separate crime is not admissible unless it has a legitimate tendency to directly establish the defendant’s guilt of the crime for which he is charged. Such evidence is logically relevant when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or the identity of persons charged with the commission of the crime on trial. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954); State v. Cheesebrew, 575 S.W.2d 218 (Mo.App.1978).

We hold that the evidence of the other acts, of which defendant complains, was admissible because they had a legitimate tendency to directly establish the defendant’s guilt of the fondling charges and fall within the common scheme or plan exception, supra. Several circumstances clearly point to the existence of such a common scheme or plan in this case. Defendant, an adult, had been left in charge of the boys. The fondling of the boys’ private parts and the other sordid acts occurred in the victims’ home during an approximate one-hour period near midnight, while their mother was away at work and when no one else was present in the house. All of the acts were sexual in nature. These circumstances indicate that all of the sexually related acts, testified to by the brothers, resulted from a scheme or plan by the defendant to exercise control and custody over his wards and to make them the target of his sexual excesses. State v. Davis, 540 S.W.2d 122 (Mo.App.1976).

The evidence, of which defendant complains, was also admissible because it formed part of the res gestae of the fondling offenses. These other indecent acts took place at or about the same time as the fondling acts and the evidence thereof was so inseparably connected and interrelated with the fondling charges, that the evidence of the one necessarily tended to show the other. Put another way, the improprieties were not independent but were concomitant, having been perpetrated in the same transaction. Thus, when a defendant in the course of the perpetration of one crime commits another, the state is not required to nicely sift and separate the evidence and exclude the testimony, tending to prove the crime for which he is not on trial, when it forms a part of the res gestae of the crime charged. State v. Wilson, 320 S.W.2d 525 (Mo.1959).

Defendant next contends that the testimony of the brothers was inflammatory in nature and did not reasonably tend to prove or disprove any disputed fact at issue because his sanity was the only material issue. The transcript discloses that before the two boys testified, defendant’s counsel stipulated “to the acts of fondling as alleged in this information as to this defendant” and withdrew defendant’s not guilty plea but reserved the plea of not guilty by reason of mental disease or defect excluding responsibility.

The state had the burden of proving the defendant’s guilt beyond a reasonable doubt. The state had the right to offer, and to have received, evidence which was relevant and material to the defendant’s guilt of molesting the minors with immoral intent and the defendant is not entitled to use a stipulation or an admission to “cutoff” the state’s right to offer such relevant and material evidence. State v. Mullen, 528 S.W.2d 517 (Mo.App.1975); State v. Townes, 522 S.W.2d 22 (Mo.App.1974). The testimony of the brothers was relevant and material in proving the state’s case. Furthermore, their description of what the defendant did and said were matters for the jury to consider in determining the defendant’s plea of not guilty by reason of mental disease or defect excluding responsibility. Defendant’s point is denied.

Defendant next avers the trial court, at the close of the evidence, should have found, as a matter of law, that the defendant was insane and not capable of committing the criminal act. In support of this contention, the defendant summarizes the testimony of his medical witness and the state’s rebuttal medical witness. Defendant’s point and argument, in support thereof, overlooks the fact that the resolution of an issue of mental disease or defect excluding responsibility was for the jury. The statute, § 552.030-7, RSMo 1969, provides in part:

“All persons are presumed to be free of mental disease or defect excluding responsibility for their conduct, .... The issue of whether any person had a mental disease or defect excluding responsibility for his conduct is one for the jury to decide upon the introduction of substantial evidence of lack of such responsibility. But in the absence of such evidence the presumption shall be conclusive. Upon the introduction of substantial evidence of lack of such responsibility, the presumption shall not disappear and shall alone be sufficient to take that issue to the jury.” (Emphasis ours).

Conceding the testimony of the defendant’s expert medical witness to be substantial evidence, and even absent contrary evidence, the statute specifically directs the trier of fact to decide this issue because the presumption remains in the case. State v. Greenhaw, 553 S.W.2d 318 (Mo.App.1977); State v. Vansandts, 540 S.W.2d 192 (Mo.App.1976); State v. Holmes, 439 S.W.2d 518 (Mo.1969). Defendant’s assignment ignores the statutory presumption as well as the state’s rebuttal evidence. The point is denied.

We have reviewed the defendant’s remaining point and find it to have no merit. The experienced trial judge considered the defendant’s objection to the case being prosecuted by a special prosecutor, appointed by the court, because the special prosecutor had allegedly been assisted in the preparation for trial by a disqualified assistant prosecuting attorney or by another assistant prosecuting attorney. The judge interrogated the special prosecutor and the two assistant prosecuting attorneys and denied the defendant’s motion to disqualify the special prosecutor. We find no abuse of discretion in the trial court’s ruling.

The judgment is affirmed.

All concur.

      . Attorney Cummings had been appointed to represent the defendant earlier in the proceedings and had been permitted to withdraw as counsel. Attorney Cummings then joined the Prosecuting Attorney’s office as an assistant. The court thereafter, appointed Attorney Bender as special prosecutor.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. John William FARMER, Defendant-Appellant.
    No. 11308.
    Missouri Court of Appeals, Southern District, En Banc.
    Sept. 24, 1979.
    John D. Ashcroft, Atty. Gen., Teresa Aloi Angle, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Paul L. Bradshaw, Larry K. Bratvold, Neale, Newman, Bradshaw & Freeman, Springfield, Emory Melton, Cassville, for defendant-appellant.
   PER CURIAM:

Defendant John William Farmer was tried in Barry County for uttering a forged instrument, the Last Will and Testament of Nona Collier, deceased. He was found guilty of forgery and his punishment assessed at “$1,000 and no confinement.”

The parties filed herein, in lieu of a transcript, a Statement of Case [Rule 81.13, V.A.M.R.] which was approved by the trial court. The statement shows the verdict of the jury was May 16, 1978, but does not show allocution, judgment and sentence. Rule 27.09, V.A.M.R.

We have no jurisdiction because no final judgment has been rendered. State v. Chase, 415 S.W.2d 731 (Mo.1967); State v. Gilbert, 507 S.W.2d 25 (Mo.App.1974).

The appeal is remanded for allocution, sentence and judgment.

All concur.


author:
PREWITT, Judge.
      MAUS, Judge,

text:
    STATE of Missouri ex info. John Ashcroft, Attorney General, ex rel. Bert F. HOLLY, Raymond T. Roth, Thomas R. Ham, J. C. Sprinkel, Jr., George Germaine, Marilyn Welty, E. N. Fiesler, O. W. Hartner, John Z. Smith, and I. F. Sanders, Relators, v. Bob KIELHOFNER, Clerk of Scott County, Fred Held, Ollie Amick, Margaret Shipman, Bob Goōdman, and Gary Venable, Commissioners of Illmo, Alvie Modglin, Nancy Caldwell, Charles Bertrand, Larry Waddle, and Oral Noon, Commissioners of City of Scott City, Respondents.
    No. 11451.
    Missouri Court of Appeals, Southern District, En Banc.
    Sept. 25, 1979.

      John H. Percy, Husch, Eppenberger, Do-nohue, Elson & Cornfeld, St. Louis, for rela-tors.
    David G. Shy, Scott City, for respondent Bob Kielhofner, Clerk of Scott City.
    Fielding D. Potashnick, Sikeston, Thomas L. Arnold, Benton, for respondents-commissioners.
   PREWITT, Judge.

Relators filed an information in the nature of quo warranto asking this court to declare the consolidation election held on June 5,1979, in the cities of Illmo and Scott City, to be null and void and that we order respondent Bob Kielhofner to decertify the results of the election and oust the respondents-commissioners as members of the Charter Commission provided for in § 72.-185. Relators contend that the election is a nullity because the consolidation election ballot did not list the separate bonded indebtedness of each municipality and indicate whether the tax necessary to retire each separate bond issue would be levied generally or locally as provided in § 72.195. Respondents-commissioners filed a motion to dismiss the information, contending that the election was proper, because the ballot followed exactly the form provided in § 72.170, and that the additional information as contended by relators did not have to be included and at that time submitted to the voters. The form of ballot used is not disputed. We believe the motion is well taken and sustain the motion and dissolve our preliminary order.

Sections 72.150 through 72.220 provide for consolidation of municipalities. Under these sections there may be one election required or as many as three. Section 72.195 provides that where bonded indebtedness was incurred by a municipality for facilities which are to be used generally by the consolidated municipality, the bonds shall become the indebtedness of the consolidated municipality, but where the facilities are to be used only by the residents in the area of a former municipality, then a special tax shall be levied upon the property within the area of that municipality. It lastly provides: “The question as originally submitted shall list each separate bonded indebtedness of the municipalities and shall clearly indicate whether the tax necessary to retire it is to be levied generally or locally.” The question here is whether information regarding the bonded indebtedness and the tax necessary to retire it is required to be on the ballot at the original consolidation election, § 72.170, or if it can be voted on with other transition details, as provided in § 72.185.

The consolidation election was initiated pursuant to petition as provided in §§ 72.-160 and 72.163. Section 72.163 requires the petition to contain: (1) the names of the municipalities, (2) the effective date of consolidation, (3) the votes cast in the last municipal election, and (4) a statement that the signers are registered voters in the affected municipality. Such a petition may, but is not required to, contain transitional details such as “what taxes will be collected”. § 72.163.1(5). The petitions here contained the required information but no transitional details. The form of ballot provided by § 72.170 is “shall . and . consolidate?”

Section 72.185 provides that if the original question does not contain the name and form of the government and the details of transition, such as “what taxes will be collected,” then a commission shall be appointed and they will submit these questions to the voters. It provides for two elections, if necessary. There may be cases where all details of a transition are proposed in advance, either by ordinance by the governing bodies of the municipalities as provided in § 72.155 or by petition pursuant to § 72.163.1(5). In such event, then perhaps only one election would be required. However, here transition details were not proposed in advance of the consolidation election and it became the duty of the charter commission to submit these details to the voters. § 72.185. The use of the facilities or improvements for which the debt was incurred determines whether the tax is to be levied in the area of a former municipality or over the entire area of the new municipality. The use of the facilities and the taxes for their payment cannot be proposed in such situations as here until the commission meets. Neither the governing bodies nor the petitioning voters are required to propose such uses or taxes. The commission is not authorized until after the initial election. It would not be possible here to submit such questions to the voters at the first election. We believe that the “question as originally submitted” stated in § 72.195 refers to the first election where the bonded indebtedness is considered, which is not necessarily the consolidation election. It may in a proper case, as here, be the election provided for in § 72.185.

The consolidation ballot complied with § 72.170. We should not add to that section any additional requirements. Nor should we require the governing bodies, under § 72.155, or the petitioning voters, under § 72.163, to set forth the proposed use of bond financed improvements and how the indebtedness shall be paid when the legislature did not require it. Had the legislature intended the additional information to be on the ballot at the first election, they could have clearly so provided. They provided for subsequent elections. As these may require a more detailed ballot, they did not set forth a required form. The manner of retiring the bonded indebtedness could be determined at the second or, if necessary, third election.

The motion to dismiss the information is sustained. The preliminary order in quo warranto is dissolved. All other motions are overruled as being moot.

All concur, excepting Judge MAUS dissented and files dissenting opinion; Judge FLANIGAN dissents, and joins in dissenting opinion filed by Judge MAUS.

MAUS, Judge,

dissenting.

In summary, adjoining municipalities may consolidate upon the basis of a proposition of consolidation originating by any combination of an ordinance adopted by the governing body or the petition of the residents of each affected municipality. Ultimately the ordinance or ordinances and/or petition or petitions are to be filed with the county court. The county court then submits “the question of consolidation . if the ordinances and petitions propose the same terms and conditions for consolidation . . . .” § 72.165.

The ordinances and petitions may, but are not required to present a proposal concerning “[t]he form of government, the name of the municipality as consolidated and the details of transition, such as which officers will serve, which employees shall be retained, what taxes will be collected, what ordinances will be in effect and similar matters for the operation of the consolidated municipality until the new governing body provides otherwise . . . § 72.163 and 72.155.

“In the event that the question as voted upon” does not present such a proposal concerning details of transition, and consolidation received the required approval, each municipality shall appoint five commissioners to meet and formulate a proposal. That proposal is then submitted to the voters in each of the affected municipalities. If “the question ’’ is not approved by a majority in both or all the affected municipalities, new commissioners are appointed and the procedure is repeated.. If the second proposal does not receive the required approval, “the question receiving the highest total number of votes in favor thereof shall be considered as having passed by a simple majority.” § 72.185.

Of course, the bonded indebtedness of each affected municipality must be paid. The applicable section (§ 72.195) does provide that taxes to pay bonded indebtedness-es for improvements or facilities inuring to the benefit of the residents of one former municipality shall be levied against property in the area of that former municipality. On the other hand, taxes to pay bonded indebtedness for improvements or facilities to be used generally by the consolidated municipality shall be levied against property in the consolidated municipality. But, that allocation is not imposed in all events. It applies only if it is not “otherwise provided in the proposition as voted upon.” This section concludes with the sentence which gives rise to this controversy. “The question as originally submitted shall list each separate bonded indebtedness of the municipalities and shall clearly indicate whether the tax necessary to retire it is to be levied generally or locally.” § 72.195.

The majority opinion holds that this sentence does not mandate that such information and indication (actually a proposal of allocation) be included as a part of the proposition at the first election. I believe it does.

First, such a construction is supported by the language itself. Throughout the sections dealing with consolidation the term “the question” is used. It is used in reference to the first election and then in reference to the possible second and third elections. When that sentence refers to “the question as originally submitted ” it seems to point unmistakably to the first election.

Second, it seems that the purpose of this sentence is to require as a prelude to consolidation the residents of each municipality be informed of the taxes they must pay and be given an effective choice about the matter. It is no answer to say that such information may be given and allocation proposed at the second and third elections. The consolidation is effective on approval of “the question” at the first election. § 72.-180. The proposition of the commissioners concerning allocation (or absence of such proposition) at both the second and third elections may be rejected and yet an allocation never approved by a majority of the voters in both or either of the affected municipalities will be effective.

Third, the language of the sections dealing with proposals concerning the “details of transition” that may be, but are not required to be, set forth in the ordinance or petition (and by inference as a part of the proposition at the first election) supports providing information as to bonded indebtedness and submission of the indication of allocation at the first election. The language “what taxes as will be collected” cannot have reference to the taxes necessary to pay bonded indebtedness. By reason of the bond issues involved those taxes must be collected regardless of any proposal to the contrary. The issue is from what area they will be collected. Further, the “details of transition” are submitted for approval “until the new governing body provides otherwise”. Section 72.195 dealing with allocation of taxes for bonded indebtedness contemplates a more permanent allocation.

Fourth, the legislature has enacted ten sections dealing with the “absorption” of one municipality by another, §§ 72.300 to 72.350. Absorption is complete upon one election. Section 72.335 provides an allocation of taxes for payment of bonded indebtedness similar to that pertaining to consolidation, but omits the “unless otherwise provided” provision. Yet that section further provides: “The question as originally submitted by resolutions and the notice of the election shall list each separate bonded indebtedness of the municipalities . . . .” § 72.335. The meaning here is clear. The information and proposed allocation must be submitted at the first and only election. It must be assumed the sentence serves the same purpose and should bear the same meaning in both instances.

Lastly, § 72.170 bears the caption “Form of ballot”. The section provides “[t]he question shall be submitted in substantially the following form: Shall . . and . consolidate?” But, this does not militate against a ballot posing that question upon the basis of a proposal of “details of transition” (§ 72.185), of the annexation of a street, stream or vacant land (§ 72.153) or of the allocation of taxes for the payment of bonded indebtedness (§ 72.195).

I would overrule the motion to dismiss and place the case upon the docket for briefing, hearing and disposition.

      . All references are to RSMo 1978.


author: GREENE, Judge.

text:
    Gregory Tim WHITES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10927.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 25, 1979.

      Joseph Howlett, Shaw, Howlett & Schwartz, Clayton, for movant/appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   GREENE, Judge.

Movant Gregory Tim Whites was jury tried and convicted on November 12, 1976, in the Circuit Court of Maries County, of the crime of second degree burglary and, by reason thereof, was sentenced to serve 6 years in the custody of the Missouri Department of Corrections. On appeal, the judgment and sentence of the trial court were affirmed. State v. Whites, 554 S.W.2d 518 (Mo.App.1977). Movant then filed a motion to vacate judgment and sentence, pursuant to Rule 27.26 alleging 1) that he was denied a fair trial due to inadequacy of counsel, and 2) that, after trial, movant learned that another person, Martin Lee Wells, had committed the crime that Whites had been convicted of and that, by reason of such newly discovered evidence, a new trial was mandated. After an evidentiary hearing, the trial court denied the motion to vacate. This appeal followed.

INEFFECTIVE ASSISTANCE OF COUNSEL

Point I relied on, which attempts to preserve this assignment of error for review, fails to state what action of the trial court is sought to be reviewed and why such trial court action was erroneous. It preserves nothing for review. We have no duty to seine the argument portion of mov-ant’s brief or the transcript on appeal to attempt to ascertain the whereins and whys of claimed errors presented in the points relief on as mere conclusions. Boyer v. State, 527 S.W.2d 432, 437 (Mo.App.1975).

Plain error review under Rule 84.-13(c) is not warranted, as a reading of the transcript does not justify a finding that manifest injustice or miscarriage of justice resulted to movant by reason of ineffective assistance of counsel at the trial court level. The finding of the trial court, that movant had effective assistance of counsel, had ample support in the record.

NEWLY DISCOVERED EVIDENCE

Movant argues that the trial court erred in not vacating his sentence and granting him a new trial for the reason that, since trial, he had discovered evidence that Martin Lee Wells had confessed to the burglary for which movant was charged and convicted. The claim of newly discovered evidence of another person’s guilt of the crime for which movant was convicted is generally not reviewable in a Rule 27.26 proceeding. Turnbough v. State, 574 S.W.2d 400, 404 (Mo. banc 1978).; Beishir v. State, 480 S.W.2d 883, 885 (Mo.1972); Drake v. State, 582 S.W.2d 711, 714 (Mo.App.1979).

Further, the trial court, in its detailed findings, found that Wells did not break into the Knights of Columbus Hall on the crucial date in question. At a Rule 27.26 hearing, the weight of the evidence and the credibility of the witnesses are matters for the trial court. Shoemake v. State, 462 S.W.2d 772, 775 (Mo. banc 1971). The credibility of the testimony of Whites and of Wells were questions of fact for the trial court and are not to be considered here on review. Vandiver v. State, 552 S.W.2d 374, 376 (Mo.App.1977).

It seems that movant’s contentions on this point are nothing more than an attempt to relitigate his guilt or innocence and raised no fundamental error on the part of the trial court. Claims of this nature are not contemplated by Rule 27.26. Even if they were, the trial court’s finding that Wells did not commit the burglary in question was supported by the evidence and was not clearly erroneous.

The judgment is affirmed.

All concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R.

      . Point I relied on alleged: “Appellant was denied the effective assistance of counsel as required by the Constitution of the United States, Amendment VI, for the reason that the defense counsel failed to conduct a prompt investigation of the circumstances and explore all the avenues leading to facts relevant to guilt and the degree of guilt and innocense of the defendant to the end that an explanation of how the finger print appeared on the bottle used in evidence against Appellant, or in the alternative, determine whether or not such explanation and fact could be proven.”


text:
    DELTA LOAN AND FINANCE, Plaintiff-Appellant, v. OSAGE OUTDOOR ADVERTISING CO. and Glenn L. Whitman and Janet E. Whitman, Defendants-Respondents.
    No. 10075.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 25, 1979.

      Harold P. Heitmann, Clayton, for plaintiff-appellant.
    Alex Bartlett, Jefferson City, for defendants-respondents.
   GREENE, Judge.

On June 26, 1974, plaintiff filed suit against defendants in the Circuit Court of Camden County. The suit alleged that defendant Osage Outdoor Advertising Company, a corporation, sold outdoor advertising sign contracts to customers in the state of Missouri, that plaintiff agreed to buy 13 of the contracts from Osage, and that the contracts were assigned to plaintiff by Osage with full recourse. The suit individually listed the 13 contracts in question. It further alleged that defendants Glenn L. Whitman and Janet Whitman executed a written guarantee to plaintiff which provided that they would guarantee the payment to plaintiff of all amounts due it under the contracts in question. The petition finally alleged that all 13 customers had defaulted, that there was a balance due on the 13 accounts of $11,513.45, and that such amount was due plaintiff from Osage and the Whitmans.

The defendants’ answer admitted that the Whitmans, d/b/a Osage Outdoor Advertising, had assigned the 13 advertising accounts to the plaintiff; disputed the amount owed plaintiff; stated that the amount owed on the 13 contracts in question was $1,031.35; stated that on June 28, 1972, plaintiff and the Whitmans had arrived at a compromise settlement of the dispute and that an accord and satisfaction between the parties, by which the Whit-mans were to pay plaintiff the sum of $1,031.35, in satisfaction of the disputed accounts, had been reached; and declared that the Whitmans had paid plaintiff that amount, but that plaintiff had refused to honor the accord and satisfaction, after having agreed to do so. The answer also denied liability by defendant Osage Outdoor Advertising Company, a corporation, to plaintiff for the reason that the corporation was not in existence during the time periods in question.

Plaintiff’s reply denied the alleged settlement and the accord and satisfaction. Jury was waived and the case was tried before the court on April 22, 1975. After hearing evidence, the court took the cause under advisement. On June 5, 1975, at the direction of the trial judge, a docket entry, made in the trial judge’s minute book, read as follows:

“Case having heretofore been heard and taken under advisement, the Court finds as follows:
As to defendant Osage Outdoor Advertising Company, a corporation, there are no funds owing by said defendant to plaintiff, and, therefore, plaintiff’s petition is dismissed as to defendant Osage Outdoor Advertising Company.
As to defendants Glen (sic) L. Whitman and Janet Whitman:
(1)Said defendants d/b/a Osage Outdoor Advertising Company, prior to June 13,1973, were customers of plaintiff, and, as such, from time to time, negotiated loans from plaintiff, each of said loans being secured by an assignment of a promissory note payable to the order of Osage Outdoor Advertising Co. having a face amount of more than the particular loan to defendants Whitman which was secured thereby;
(2)Certain of said loans are the subject of this action, and, heretofore, on or about June 28,1972, defendants Whitman and plaintiff reached a compromise agreement as to the balance owed by said defendants to plaintiff, and, as to certain of said loans, an agreement as to rebates which were owed by plaintiff to defendants Whitman, said amounts being as follows:

(3)Plaintiff presented no evidence as to what would be a reasonable attorney’s fee for attempting to collect the indebtedness owed by defendants Whitman to plaintiff.
Judgment for plaintiff and against defendants Glen (sic) L. Whitman and Janet Whitman in the amount of $2,448.20. Costs taxed to defendants Glen (sic) L. Whitman and Janet Whitman.”

Plaintiff and defendants Whitman then filed notices of appeal. Plaintiff’s appeal was docketed as No. 10075 and defendants’ Whitman as 10085. The appeals were consolidated. The Whitmans’ appeal was thereafter dismissed, at their request.

A transcript was then filed in Case 10075. The transcript inadvertently omitted one of the 13 contractual accounts that were in issue for determination by the trial court. This court, on May 11, 1977, dismissed the appeal. Delta Loan and Finance Co. v. Osage Outdoor Advertising Co., 552 S.W.2d 56 (Mo.App.1977). The reason given, in that opinion, for dismissal was that there was nothing in the record to show that the parties’ right to a determination of the issues on all 13 contracts had been complied with, as the transcript only showed a determination of the issues on 12 of the contracts, and, therefore, since the trial court’s determination did not dispose of all of the issues, the appeal was premature and should be dismissed.

A supplemental transcript, filed in a subsequent appeal on the same subject matter, Case 10899, shows that the court reporter, who prepared the original transcript for the plaintiff’s initial aborted appeal, had inadvertently omitted the disposition by the trial court of one of the disputed accounts, which omission had triggered the dismissal, and also showed that a formal judgment, dated June 5,1977, correctly setting out the decision of the trial court disposing of all of the parties and issues and making a final determination of the rights of the parties, had been filed in the trial court.

Based upon those revelations this court, by orders, reinstated the appeal in Case 10075 (this appeal), dismissed a second appeal by plaintiff involving the same parties and issues in Case 10899, since the second appeal was moot after this appeal was reinstated, and ordered that the original and supplemental transcripts, all exhibits, and all briefs of the parties, in Case 10899, be made a part of the record in this case.

On appeal, plaintiff raises two assignments of error which are that the trial court erred 1) in finding that a compromise agreement was reached between the parties because there was no evidence of an accord and satisfaction in that all parties had not agreed to a settlement, and 2) not finding that plaintiff was entitled to a judgment in the amount of $11,513.45, as the evidence showed that plaintiff was entitled to a judgment in that amount. No issue was raised, on appeal, as to the dismissal of plaintiff’s suit against the corporation.

Since this is a court-tried case, the judgment of the trial court must be sustained unless there is no substantial evidence to support it, unless the judgment is against the weight of the evidence, or unless the trial court erroneously declared or applied the law to the facts in arriving at its determination of the rights of the parties. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Plaintiff does not contend that the trial court erroneously declared or applied the law in this case, but contends obliquely, that there was no substantial evidence to support the judgment and that the only verdict possible, under the evidence, would be for plaintiff in the sum of $11,-513.45. We disagree.

The evidence reveals that there was no real dispute between the parties as to the handling of the accounts on an individual basis. Upon assignment of one of the sign contracts to plaintiff by Osage Outdoor Advertising Co. (hereinafter referred to as Osage), plaintiff, as a loan to Osage, would disburse to Osage 60% of the face amount of the contract. On its records, the 60% was subtracted from the face amount of the contract by plaintiff. Further subtractions were made by plaintiff from the remaining balance, which subtractions included a discount factor of either 6 or 6½% and, in some cases, a charge for credit life insurance in the sum of 1% per year. The customer would then make its monthly payments to plaintiff instead of Osage. When the total amount of the payments equalled, or exceeded, the amount advanced to Osage plus the amount charged by plaintiff for the discount and the credit life insurance, a payoff would be declared, and the account in question would be reassigned to Osage. In order to save the time of all concerned, it was not unusual for several accounts to be settled at the same time. The parties would meet, recalculate interest on individual accounts, make payment adjustments and effect a reassignment of the contracts in question. The calculations, adjustments and settlements were made on an individual contract basis in each case. A credit or a debit, depending on the facts, would then be agreed upon.

The real dispute between the parties concerns a so-called “master reserve account”. Osage had executed a reserve agreement with plaintiff (plaintiff’s exhibit 1) providing, in part, that plaintiff could withhold a reserve amount from payments made to it by the customer in question, as security for obligations of Osage. Plaintiff contends and its evidence was to the effect, that this meant any and all due and unpaid obligations of Osage to plaintiff, and not merely due and unpaid obligations on the 13 individual accounts in question. According to its witness, Robert Martin, plaintiff kept, in its St. Louis office, a master reserve account, which showed an indebtedness to plaintiff from Osage, and by virtue of the guaranty agreement, by defendants Whitman, in the sum of $11,513.45. The evidence of defendants Whitman showed that the reserve account agreement was treated by the parties as a “holdback” agreement, under which plaintiff withheld all payments to Osage on the individual accounts until plaintiff had been repaid its loan, discount, and in some cases, credit life insurance payments; that the parties never intended to have the individual reserve accounts lumped into one master reserve account, and that, to their knowledge, there was no master reserve account. Plaintiff did not present any evidence that defendants were ever aware of any master reserve account before the lawsuit was filed.

The evidence showed that all past settlements of accounts by the parties was on an individual account basis, with no reference to credits or debits in a master reserve account. The evidence was undisputed that on June 29, 1972, the Whitmans met with Wayne Anderson, the manager of plaintiff’s office in Waynesville, Missouri. Prior to the meeting, defendant Janet Whitman had figured payoffs on the 13 accounts in question, plus two additional accounts of Ozark Trails, and had prepared a worksheet (defendants’ exhibit B) showing the debit or credit balance on each account. Defendants Whitman contended, based on the figures on the worksheet; that the amount owed by them to plaintiff, after deducting rebates due them from plaintiff on all 13 accounts and the two Ozark Trails accounts, was $1,031.35, and they tendered a check to Anderson in that amount. Mrs. Whitman testified, on redirect examination, that the figures upon which she based her computations in defendant’s exhibit B, and on which she said a settlement agreement was made, included the two Ozark Trails accounts on which two accounts the Whitmans claimed a balance was due to them of $1,416.85. Anderson, who was defendants’ witness, testified that he and the Whitmans would periodically go over individual accounts to determine the payoff due, that the payoff figure was determined on each individual account, and the individual account method was used in the June 29, 1972 meeting to determine the amount due plaintiff. Anderson had never seen any “master reserve account”, as that was handled in plaintiff’s St. Louis office. Anderson did not take into consideration delinquencies on all accounts in computing the accounts in question, as “there was always more money coming into the reserve”, but only took into consideration delinquencies on the 13 individual accounts that were the subject matter of the lawsuit. In the June 29, 1972 meeting, all of the 13 accounts in question were taken into consideration in arriving at a settlement figure, and the parties used the figures shown on the 13 individual account cards in figuring the payoff.

The trial court, in its judgment, disallowed the two Ozark Trails accounts in the total amount of $1,416.85, found that a balance was owed to plaintiff on 7 of the accounts in question in the amount of $4,464.27 and that a rebate was owed to defendants Whitman in the sum of $2,016.07 on the other 6 accounts, leaving a net balance due plaintiff from defendants Whitman in the sum of $2,448.20, for which sum judgment was entered for plaintiff.

In appellate review of a court-tried case, the overriding concern is whether the trial court reached the right result and not whether the reason assigned by the trial court for its judgment was correct or incorrect. Regardless of the theory on which the judgment here was based, i. e., a compromise settlement, it should be affirmed if, based on the evidence, such result could properly have been reached. State ex rel. Sageser v. Ledbetter, 559 S.W.2d 230, 234-235 (Mo.App.1977).

We hold that there was substantial evidence to support the trial court’s conclusion that a compromise settlement in the amount of $2,448.20 had been reached after discussions between the Whitmans and plaintiff’s agent and that such finding was not against the weight of the evidence. We further hold that there was substantial evidence in the record to show that on the 13 accounts in question, there was a balance due plaintiff from the Whitmans of $2,448.20, independent of any claim by the Whitmans of compromise settlement or accord and satisfaction, and that such finding would not have been against the weight of the evidence, giving due deference to the right and duty of the trial court to determine the credibility of the witnesses. The judgment was proper under the evidence in this case.

The judgment is affirmed.

All concur.

      . Since a formal judgment was belatedly filed, it is not necessary to decide if the docket entry of June 5, 1977, disposing of all parties and all issues and constituting a final determination of the rights of the parties, as mandated by Missouri Rule of Court 74.01, V.A.M.R., constituted a final judgment for the purpose of appeal. It gave the “appearance” of being one. See State ex rel. State Highway Comm’n. v. Tate, 576 S.W.2d 529, 531 (Mo. banc 1979).


author: FONES, Justice. FONES, Justice.

text:
    William Clarence SMITH, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Aug. 27, 1979.
    Charles G. Taylor, III, Ayres, Parkey, Skaggs & Ware, James A. H. Bell, Ritchie & Tipton, Knoxville, for petitioner.
    William Leech, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

FONES, Justice.

Defendant was convicted of armed robbery, kidnapping and assault with intent to commit rape and was sentenced to fifteen years for armed robbery, and four-to-five and two-to-five-year sentences, respectively, for the other crimes, to run concurrently with the fifteen-year sentence. The Court of Criminal Appeals affirmed.

We granted the writ of certiorari to examine the advisability of extending to criminal cases the admission of a declaration against penal interest, where the declarant is unavailable, as an exception to the hearsay evidence rule.

In Breeden v. Independent Fire Ins. Co., 530 S.W.2d 769 (Tenn.1975), we adopted a rule allowing the admission of extra-judicial declarations against pecuniary or penal interests, if the guidelines set out therein were met, but expressly limited the rule to civil cases.

The State does not resist extension of the rule to criminal cases, acknowledging a growing trend in that direction, but insists that sufficient corroboration to indicate trustworthiness should be required as a prerequisite to the admissibility of the hearsay statement and that in this case, that requirement was not satisfied.

I.

Mr. Justice Henry, writing for the Court in Breeden, cited extensively the authorities espousing the rationale and the manifest justice supporting abandonment of the rule excluding declarations against penal interest in criminal cases, as well as civil cases. In this opinion, we need only consider the additional safeguard that must accompany extension of the rule to criminal cases.

Obviously, the most frequent application of the rule in criminal cases is the tender of hearsay evidence that an unavailable de-clarant had confessed to the witness that declarant, not defendant, committed the crime that is the subject of the prosecution. The basis for the exclusion of such declarations, followed in England and many United States jurisdictions since the Sussex Peerage Case, 11 Clark & Fin 85, 8 Eng. Rep. 1034 (1844), was “the fear of opening a door to a flood of prepared witnesses falsely testifying to confessions that were never made.” See McCormick, Evidence § 278 at 674 (2d ed. 1972). A fortiori, the safeguard against jail-planned, etc., perjury is the requirement of an appropriate degree of corroboration as a prerequisite to the admission of the hearsay declaration.

The federal rule provides that:

“A statement tending to expose the de-clarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Fed.R.Evid. 804(b)(3).

Most of the states that have extended the statement against penal interest exception to the hearsay rule to criminal cases have either adopted the federal rule verbatim or in substance, by the use of similar expressions requiring independent evidence connecting the declarant with the crime and supporting the reliability of the statement.

In 1923, Virginia adopted a rule permitting evidence of an extra-judicial confession, exculpatory of the accused, but limited the application of the rule to those cases wherein there was a showing of “anything substantial other than the bare confession to connect the declarant with the crime.” Hines v. Commonwealth, 136 Va. 728, 748, 117 S.E. 843, 849 (1923). The Virginia rule was at issue in the case of Ellison v. Commonwealth, 219 Va. 404, 247 S.E.2d 685 (1978). The Supreme Court of Virginia noted that in determining the admissibility of such statements, the issue is not whether the declarant confessed to the proffered witness or whether that witness is reliable or trustworthy but rather whether the content of declarant’s confession was reliable and trustworthy. In determining the admissibility of the statement in the case on trial, the Supreme Court of Virginia said, in part:

“[W]e search the record for indicia of trustworthiness in the form of evidence from other witnesses that Brown confessed to them, extrinsic evidence connecting him with the Marks crimes, or a satisfactory combination of both.” 247 S.E.2d at 688.

In State v. Higginbotham, 298 Minn. 1, 212 N.W.2d 881 (1973), the Supreme Court of Minnesota said that it was, in essence, in accord with the federal rule, but expressed its own rule as follows:

“As with all exceptions to the hearsay exclusionary rule, a threshold test must be applied to determine the essential trustworthiness and credibility of the statement. Because hearsay statements tending to exculpate the accused must be regarded with suspicion, we hold that, to be admissible, declarations against penal interest must be proven trustworthy by independent corroborating evidence that bespeaks reliability.” Id. at 883.

Maryland admits hearsay statements made by declarant against his penal interest “unless it is clearly collusive, frivolous or otherwise obviously untrustworthy.” Dyson v. State, 238 Md. 398, 407, 209 A.2d 609, 614 (1965).

This Court expressly rejects the rationale of the Maryland court that a statement against penal interest, standing alone, has sufficient “inherent indicium of trustworthiness” to justify its admission, absent proof that it is collusive, frivolous or otherwise obviously untrustworthy. See Harris v. State, 387 A.2d 1152, 1156 (Ct.Spec.App.Md.1978).

We adopt the threshold test articulated by the Supreme Court of Minnesota, to wit, that hearsay declarations against penal interest made by an unavailable de-clarant, to be admissible, must be proven trustworthy by independent corroborative evidence that bespeaks reliability.

II.

The crimes that defendant was charged with were committed on December 24, 1975. The statement against penal interest sought to be introduced was allegedly made by William Vonner, who had died prior to the trial of this case.

The confession was allegedly made to Darryl Dobbins, who was offered as a witness for defendant at trial. Testifying out of the presence of the jury, Dobbins said that Vonner came to his house on the night of December 22, 1975, asked about a gun and wanted Dobbins to “do something with him”, implicitly participate in a robbery; that a few days later Vonner returned and told Dobbins that he and one Woods had robbed the Krystal Restaurant of approximately $100; that he drove the car and Woods went inside and committed the robbery and brought out a hostage; that they drove to the Beaman Lake area where Woods made the hostage take off her clothes. Dobbins testified that while in the Knox County jail in September 1977 he told a guy named “Little Man” about Vonner’s statement, who in turn told defendant Smith, who was incarcerated in the Knox County jail at that time. Defendant’s offer of proof also included evidence that Vonner died July 18, 1977.

That was the extent of the proof offered out of the presence of the jury and there was not one scintilla of evidence, independent of Dobbins’ testimony, to corroborate the content of Vonner’s confession that he participated with Woods in the commission of the offenses that defendant was charged with committing. Having failed the threshold test of the rule we adopt today, Dobbins’ testimony was not admissible.

Defendant insists in essence that Dobbins’ testimony, standing alone, is admissible under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and that its rejection violates defendant’s federal constitutional right to due process of law. In Chambers an unusually strong set of corroborating circumstances were present. The declarant, McDonald, had given a sworn written confession that he committed the murder that was the subject of Chambers’ trial, but repudiated that confession one month later at his own preliminary hearing. At Chambers’ trial the state did not call McDonald as a witness and defendant’s motion to call him as an adverse witness was denied. As Chambers’ witness, McDonald’s out-of-court sworn confession was admitted and read to the jury. On cross-examination the State elicited from McDonald the repudiation of that confession at his preliminary hearing and the lengthy story of what he had done on the night of the murder. Chambers renewed his motion for leave to cross examine McDonald as an adverse witness. The trial judge again denied his motion on the ground that McDonald’s testimony was not adverse to Chambers because he did not point the finger at Chambers.

Chambers then sought to introduce three witnesses to whom McDonald had confessed that he killed the officer. Chambers also sought to introduce the testimony of a gun dealer who would have corroborated Carter, one of the three witnesses to whom McDonald had confessed. Carter’s testimony was that McDonald told him that he had disposed of the .22-caliber revolver that he used to kill the officer later that night and Carter accompanied him to the gun dealer about three weeks after the killing where he purchased another .22-caliber revolver. The gun dealer would have testified that McDonald purchased a .22 revolver about one year prior to the murder and a second one about three weeks after the killing.

Apparently the trial court excluded the testimony of Carter, the other two hearsay witnesses and the gun dealer, on the premise that Chambers was attempting to impeach his own witness, McDonald. The Mississippi Supreme Court sustained the trial court, at least as to the three witnesses to whom McDonald had allegedly confessed, on hearsay grounds.

The Supreme Court traced the history of hearsay statements against penal interest with observations and conclusions similar to this Court’s opinion in Breeden and herein. Immediately following its observation that some states continue to exclude hearsay statements against penal interest, the Supreme Court turned to the facts in Chambers and said:

“While that rationale has been the subject of considerable scholarly criticism, we need not decide in this case whether, under other circumstances, it might serve some valid state purpose by excluding untrustworthy testimony.
The hearsay statements involved in this case were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability. First, each of McDonald’s confessions was made spontaneously to a close acquaintance shortly after the murder had occurred. Second, each one was corroborated by some other evidence in the case — McDonald’s sworn confession, the testimony of an eyewitness to the shooting, the testimony that McDonald was seen with a gun immediately after the shooting, and proof of his prior ownership of a .22-caliber revolver and subsequent purchase of a new weapon.” 410 U.S. at 300, 93 S.Ct. at 1048.

The additional critical error the Supreme Court found in Chambers was the refusal to allow cross examination of McDonald as an adverse witness because of Mississippi’s “voucher” rule. The ultimate conclusion of the court that Chambers was denied a trial, “[I]n accord with traditional and fundamental standards of due process” was predicated on the combination of the two errors, the adherence to the hearsay rule totally excluding statements against penal interest and the “voucher” rule. Id. at 302, 93 S.Ct. at 1049. The contention that Chambers requires the admission of uncorroborated hearsay statements against penal interest has no validity, and has been rejected by many courts, federal and state. See Commonwealth v. Carr, supra.

Defendant vigorously pursues with admirable advocacy his assertion that the evidence was insufficient to support the guilty verdict. We have thoroughly reviewed the disputed evidence in this record, and reach the same conclusion as the Court of Criminal Appeals, that defendant has not carried the burden of showing that the evidence preponderates in favor of his innocence.

Affirmed.

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

ORDER

FONES, Justice.

The petition to rehear filed in the above-styled cause is denied.

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

      . Crawley v. Commonwealth, 568 S.W.2d 927 (Ky.1978); Ariz.R.Evid. 804(b)(3); Me.R.Evid. 804(b)(3); Wis.R.Evid. § 908.045(4); Mich.R. Evid. 804(b)(3) [see State v. Brown, 85 Wis.2d 341, 270 N.W.2d 87 (1978)].

      . State v. Larsen, 91 Idaho 42, 415 P.2d 685 (1966); People v. Bailey, 56 Ill.App.3d 213, 14 Ill.Dec. 213, 371 N.E.2d 1266 (1978); Commonwealth v. Carr, 373 Mass. 617, 369 N.E.2d 970 (1977); State v. Higginbotham, 298 Minn. 1, 212 N.W.2d 881 (1973); Ellison v. Commonwealth, 219 Va. 404, 247 S.E.2d 685 (1978); State v. Young, 89 Wash.2d 613, 574 P.2d 1171 (1978); State v. Gardner, 13 Wash.App. 194, 534 P.2d 140 (1975).

      . As defined in Breeden v. Independent Fire Ins. Co., supra.


author: FRANKS, Judge.

text:
    Curtis C. SEXTON, Grover C. Bates and Waste Management, Inc., of Tennessee, Plaintiffs-Appellees, v. ANDERSON COUNTY, acting By and Through the BOARD OF ZONING APPEALS, Defendant-Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    March 28, 1979.
    Rehearing by Supreme Court Denied Aug. 27, 1979.
    Certiorari Denied by Supreme Court Aug. 13, 1979.
    Mike Lawson, Anderson County Atty., Clinton, for defendant-appellant.
    P. Douglas Morrison of Morrison, Morrison & Morrow, P.A., Knoxville; for Waste Management, Inc.
   OPINION

FRANKS, Judge.

The appellant denied appellees’ request to develop a sanitary landfill on a tract of land in Anderson County. The Chancellor reversed that determination, finding that all of the requirements for granting a special exception to develop a landfill were met by the appellees and there was no material evidence in the record to sustain the denial.

Appellant appealed and assigns four errors, which may be combined for consideration, and asserts there is material evidence in the record to sustain the board and ap-pellees did not show compliance with the zoning ordinance by obtaining prior approval of public health bodies and setting forth the percentage of land to be used as a fill, as required by the ordinance.

The tract of land in question is presently zoned A-2, an Anderson County zoning classification, and utilized as a pasture. The zoning ordinance provides, in pertinent parts:

7.5. A — 2 Rural Residential District.
A. District Description:
This district is intended to be utilized in areas where, due to remoteness, impermeability or shallowness of soils, the absence of the necessary urban services, or the continuation of farming or agricultural activities, development of a suburban density is undesirable or infeasible. Although the A — 2 District is primarily a rural district, it also provides for low-density residential development, with lot sizes for single-family dwellings and mobile home structures being less restrictive than those of the A — 1 Agriculture-Forestry District. In addition, a primary objective of the A — 2 District is to prevent undesirable urban sprawl and to exclude land uses which demand a level of urban services which are impossible or uneconomical to provide. The following regulations shall apply in the A-2 Rural Residential District as defined on the Zoning Map of Anderson County, Tennessee.
* ⅜ * * * *
C. Special Exceptions:
In the A-2 Rural-Residential District, the following uses and their accessory uses may be permitted subject to review and approval by the Anderson County Board of Zoning Appeals in Accordance with the provisions of Article 1, Section 11.5. .
6. Sanitary landfill operations, subject to the approval of the Anderson County Health Department and the Tennessee Department of Public Health.
******
11.5. Procedure for Authorizing Special Exceptions.
The following procedure is established to provide a means for review of a proposed use by the Board of Zoning Appeals. The procedure shall be the same whether review is required by this ordinance or whether a review is requested by the Zoning Officer to determine whether a proposed use is potentially dangerous, noxious, or offensive.

Appellees petitioned the Board of Zoning Appeals for a special exception to allow the operation of a sanitary landfill. The board conducted a public hearing, which was informal, and the procedure followed was, to some extent, irregular. Immediately following the hearing, the board voted three to one to deny the petition.

Appellant initially argues that the sanitary landfill would “likely be injurious to the public health and safety of the surrounding community,” and would be detrimental to the character of the neighborhood and cites Zoning Law and Practice, Yokely, 4th Ed. 1978, Section 2-2, pp. 19-20, to the effect that the general purpose of zoning is the preservation of the character of neighborhoods. These insistences were ably met by the Chancellor in his memorandum opinion and we quote at length therefrom with approval:

Article 8.11 [zoning ordinance] states that in every district it shall be unlawful to carry on or permit to be carried on any activity operation or use of any land, building, or equipment to the extent that it is harmful to the general health, safety and welfare.
This performance standard as stated in the ordinance is in the opinion of the Court, not a condition precedent to the granting of a special exception, but is a statement contained within the ordinance prohibiting such activity by an owner or occupier of land.
The Board of Zoning Appeals is an administrative body as opposed to a legislative body and the Quarterly County Court of Anderson County has previously determined, as hereinbefore stated, that growth of a suburban density is deemed undesirable in this area and that a primary objective of the A-2 District is to prevent undesirable urban sprawl and to exclude land uses which demand a level of urban services which are impossible or uneconomical to provide.
The Quarterly County Court of Anderson County has also expressly provided that in this classification sanitary landfill operations will be permitted, subject to review and approval by the Board of Zoning Appeals and subject to the approval of the Anderson County Health Department and Tennessee Department of Public Health.
It is clear that this property does lie in an A-2 District; that the Anderson County Health Department, Tennessee Department of Public Health, and the staff has approved this area.
While it is true that many residents expressed before the Board of Zoning Appeals their fears about future conditions which might develop, the Zoning Ordinance, Article 8.11, states that it would be unlawful to carry on activity that is harmful to the general health, safety and welfare. By the inclusion of a sanitary landfill as a special exception, obviously the Quarterly County Court did not consider that a landfill per se would be harmful to general health, safety and welfare. If, during the course of operation of a landfill, such conditions develop, a remedy is available to abate such conditions as would be harmful to general health, safety and welfare.

There is evidence relating to the desirability of suburban type development of the tract of land in question and the surrounding area; however, the zoning classification of the area as A-2 pretermits this consideration and the evidence is, therefore, not material to the application for the special exception.

At the hearing before the board, the area property owners voiced fears and objections to the development based upon possible pollution of the water table, offensive odors emanating from the landfill, damage to roads from increased traffic hauling garbage to the site and decrease in property values in the general area.

The evidence established there is no public water supply in the area and the area residents rely upon private wells for water; pollution reaching the water table could create a serious health hazard. Systematic soil samplings were made on the property by borings, ranging in depths from 35 to 50 feet. None of the borings came in contact with the water table and the soil type in the area is “containing” and the evidence established there is little or no danger of groundwater leaching through the refuse and contaminating the water table. No contradictory evidence on this issue was offered.

Various members of the community expressed beliefs and opinions that the presence of the landfill would create noxious odors and result in falling property values; they also thought that trucks delivering refuse to the site of the fill would cause additional damage to the local roads. These statements were offered on the issue of whether the intended use is “potentially dangerous, noxious or offensive.” None rises to the dignity of being material evidence on the issue. In each instance, the statements amount to an expression of opinion on the ultimate issue, unsubstantiated by factual premises. Speculations, expression of fears and considerations of an aesthetic or political nature do not form a basis to support a decision made by an administrative body charged with adjudicatory responsibility. Harvey v. Rhea County Beer Board, 563 S.W.2d 790 (Tenn.1978); Ewin v. Richardson, 217 Tenn. 534, 399 S.W.2d 318 (1966).

The opponents of the landfill attended the public hearing conducted by the board in substantial numbers and voiced strong and sincere beliefs that the operation would have an adverse impact on their community but none of their suggestions was supported by facts. No witness purported to have any knowledge of any odor problems at a landfill, either operated by Waste Management or operated in the same manner as the one proposed. No witness attempted to outline the composition of the roads in question and the effect upon the roads from the increased traffic. On this issue, the Chancellor noted the testimony of a representative of the state planning agency that the site was in close proximity to the Interstate 75-Racoon Valley Intersection and the county could control access to the site by imposing weight limit restrictions on the roads. While most of the people in the area expressed the belief that property around the site would decrease in value, none could point to actual reduction in property values due to the proposed development or decline in property values in areas adjacent to similar operations.

In the absence of material evidence on these issues, the expression of fears by members of the community alone, however sincere, will not support the determination of the Board of Zoning Appeals. This court noted in the case of Pace v. Garbage Disposal District of Washington County, 54 Tenn.App. 263 at 266-7, 390 S.W.2d 461 at 463 (1965):

Judicial review of the action of administrative bodies is confined to an examination of the evidence to determine whether “there is material evidence to support conclusions that are neither arbitrary nor unlawful.” [Citations omitted.]
[T]o sustain the action of an administrative tribunal more than a scintilla or glimmer of evidence is required. It must be of a substantial, material nature. .
It must be such relevant evidence as a reasonable mind might accept as adequate to support a rational conclusion and such as to furnish a reasonably sound basis for the action under consideration. Anno. 123 A.L.R. 646; 2 Am.Jur.(2d) 572, Administrative Law, Section 688.

There is no material evidence that the proposed landfill would be dangerous, noxious or offensive within the meaning of the ordinance. The evidence presented does establish that the proposed site is suitable from a geologic, hydrologic and soil standpoint and the proposed plans for the landfill were designed to screen the landfill from passing public and the public traversing the interstate. The applicants proposed to do all that is technologically feasible to avoid consequences feared by area residents.

Further, appellant argues that before the Board of Zoning can grant a special exception, the Anderson County Health Department and the Tennessee Department of Public Health must have given their approval and contend that this requirement has not been fulfilled. The evidence establishes the respective health departments had given the necessary approval to enable the Board of Zoning to proceed with this application.

Finally, the county argues that appellees have not represented what percentage of the parcel of land would be actually used for landfill operation and insist, under the zoning ordinance, no more than 30 percent of the total land area of a parcel of property may be used for non-agricultural purposes. This argument is neither applicable to the law nor the facts within the scope of our review. If the special exception is granted, the developer will be required to abide by any existing regulations and ordinances in the development and operation of the landfill.

While the board did not exceed its jurisdiction, we conclude, in the absence of material evidence on the issues framed by the ordinance establishing a basis for denial, that its decision in denying the special exception permitted within the framework of the zoning ordinance was arbitrary. Hoover Motor Express Co. v. Railroad and Public Utilities Commission, 195 Tenn. 593, 261 S.W.2d 233 (1933); see also Spunt v. Fowinkle, 572 S.W.2d 259, 265 (Tenn.App.1978).

For the foregoing reasons, we overrule all assignments of error. The decree of the Chancellor is affirmed and the cause remanded to that Court for execution.

Costs incident to this appeal are taxed against appellant.

SANDERS and GODDARD, JJ., concur.

      . The Board of Zoning Appeals of Anderson County is a quasi-judicial body charged with finding facts and is required to conduct an orderly proceeding appropriate to the case. See Reddoch v. Smith, 214 Tenn. 213, 379 S.W.2d 641 (1964). At the hearing, there were attorneys present representing different interests but cross-examination of witnesses was virtually non-existent. Apparently, none of the witnesses was administered an oath, which is mandatory. 2 Am.Jur.2d, Administrative Law, § 423. According to the Chancellor’s memorandum, all parties stipulated that the transcript of the proceeding be treated as evidence.
      While a hearing where all interested parties are given the opportunity to fully express their views is essential, it is not a function of the board to conduct a referendum on public attitudes relative to the petition. City of Apopka v. Orange County, 299 So.2d 657 (Fla.App. 1974).

      . Where a special exception is granted, the zoning ordinance expressly empowers the board with authority to impose such conditions on the use of the land as it may deem advisable in the furtherance of the general purposes of the ordinance. Article 11, Section 11.5B, Zoning Ordinance, Anderson County, Tennessee.


author: DENTON, Justice.

text:
    GRAY-TAYLOR, INC. d/b/a Jimmie Green Chevrolet, Petitioner, v. Johnny TENNESSEE, Respondent.
    No. B-8117.
    Supreme Court of Texas.
    Sept. 19, 1979.

      Bracewell & Patterson, William Fred Ha-gans and Andrew F. Spalding, Houston, for petitioner.
    Cavanaugh & Douglass, Stephen J. Cava-naugh, Bellaire, for respondent.
   DENTON, Justice.

The primary question in this cause is whether the security interest disclosed in Jimmie Green Chevrolet’s retail installment contract for the sale of an automobile violates the “one-side” rule of Regulation Z of the Federal Truth in Lending Act.

After purchasing an automobile from Jimmie Green Chevrolet, Johnny Tennessee, respondent here, brought suit against Gray-Taylor, Inc. d/b/a Jimmie Green Chevrolet, petitioner here, for alleged violations of the Texas Deceptive Trade Practices Act, the Texas Uniform Commercial Code and the Federal Truth in Lending Act. The trial court rendered judgment for Tennessee on all three causes of action. The court of civil appeals severed the Deceptive Trade Practices and the Uniform Commercial Code causes of action and rendered judgment that Tennessee take nothing on those two theories of recovery. 573 S.W.2d 859, 861-862. The court of civil appeals affirmed the trial court’s judgment for Tennessee on the Federal Truth in Lending Act violations and remanded the cause to the trial court for a determination of the amount of attorney’s fees attributable to the federal violations. 573 S.W.2d at 862-64. We reverse that part of the court of civil appeals judgment that relates to the Federal Truth in Lending Act and render judgment that Johnny Tennessee take nothing on the federal cause of action.

Tennessee bought a used automobile from Jimmie Green Chevrolet for $200 down and agreed to make additional payments in the future. He failed to make the first payment and Jimmie Green repossessed the automobile.

The contract between the two parties is entitled “RETAIL INSTALLMENT CONTRACT-MOTOR VEHICLE & SECURITY AGREEMENT.” It is a two-sided document with the space for the customer’s signature located on the face of the document. The face of the document lists required disclosures under the Federal Truth in Lending Act, including the following description of the security interest retained by Jimmie Green:

Buyer hereby acknowledges delivery and acceptance of Motor Vehicle in its present condition, and GRANTS TO SELLER A PURCHASE MONEY SECURITY INTEREST under the Uniform Commercial Code IN MOTOR VEHICLE, and in and to all proceeds, substitutions, replacements, additions, and accessions to the Motor Vehicle.

Both sides of the document contain the provision “NOTICE: SEE OTHER SIDE FOR IMPORTANT INFORMATION.” The reverse side contains the following provision:

BUYER WARRANTS, COVENANTS AND AGREES:
4. Additions to MOTOR VEHICLE-BUYER hereby agrees that all equipment, accessories, repairs, and parts placed upon MOTOR VEHICLE during the existence of the security interest hereby granted shall become a part of MOTOR VEHICLE and shall be subject to the terms and provisions of this Contract.

The trial court found, as a matter of law, that Jimmie Green Chevrolet “has violated the Truth in Lending Act and Regulation Z thereof by failing to provide a signature line following the full content of the document representing the retail installment contract.” The court of civil appeals affirmed the Truth in Lending Act violations on two grounds: (1) Jimmie Green Chevrolet violated 12 Code of Federal Regulations § 226.801(b) because the space provided for the customer’s signature does not follow the full content of the document; and (2) Jimmie Green Chevrolet violated Regulation Z because the description of the security instrument on the face of the document does not clearly disclose that after-acquired property will be subject to the security interest. 573 S.W.2d at 863-64.

The first issue is whether 12 C.F.R. § 226.801(b) is applicable to the retail installment contract used by Jimmie Green Chevrolet and therefore requires a signature line on the reverse side of the contract. Our recent decision in General Electric Credit Corporation v. Smail controls the disposition of this issue. 584 S.W.2d 690 (Tex.1979). In Smail, we concluded that section 226.801(b) applies only to documents designed for processing by mechanical or electronic equipment. 584 S.W.2d at 696; see Charles v. Krauss Co., 572 F.2d 544 (5th Cir. 1978); Smith v. Chapman, 436 F.Supp. 58 (W.D.Tex.1977); 5 CCH Consumer Credit Guide ¶ 31,536 (Letter of February 10, 1977). There is no evidence, nor has Johnny Tennessee ever contended, that the retail installment contract used by Jimmie Green Chevrolet was intended for processing by electronic or mechanical equipment. Therefore, Jimmie Green Chevrolet cannot be held liable for failure to comply with the provisions of section 226.801(b).

The second issue is whether the retail installment contract used by Jimmie Green Chevrolet violates the “one-side” rule of Regulation Z. Section 226.8(a) of Regulation Z provides that all the disclosures required under section 226.8(b) must be made together on the same side of the page above the customer’s signature. Section 226.8(b)(5) requires the disclosure of any security interest in after-acquired property:

(b) . . . In any transaction subject to this section, the following items, as applicable, shall be disclosed:
(5) . . . If after-acquired property will be subject to the security interest, or if other or future indebtedness is or may be secured by any such property, this fact shall be clearly set forth in conjunction with the description or identification of the type of security interest held, retained or acquired.

Therefore, under Regulation Z, a security interest in after-acquired property must be clearly set forth on the front or first page of the document used in this cause. See Southwestern Investment Co. v. Mannix, 557 S.W.2d 755 (Tex.1977); General Electric Credit Corp. v. Smail, 584 S.W.2d 690 (Tex.1979).

The description of the security interest on the front page of the document in question states that the “BUYER . GRANTS TO SELLER A PURCHASE MONEY SECURITY INTERESTS . . . IN MOTOR VEHICLE, and in and to all proceeds, substitutions, replacements, additions, and accessions to the Motor Vehicle.” (emphasis added) It is not necessary to use the words “after-acquired property” in order to retain a security on goods acquired after value has been given. See, e. g., Anthony v. Community Loan & Investment Corporation, 559 F.2d 1363 (5th Cir. 1977). The phrase in question here clearly sets forth that certain kinds of after-acquired property will be subject to the security interest. We therefore hold that the face of the document contains the required disclosure of the after-acquired property clause and does not violate the “one-side” rule of Regulation Z. See e. g., Anthony Community Loan & Investment Corporation, supra at 1368-69; see Gennuso v. Commercial Bank & Trust Co., 566 F.2d 437, 442 n. 17 (3rd Cir. 1977).

We further find no merit in Tennessee’s argument that the “ADDITIONS TO MOTOR VEHICLE” language on the reverse side of the document should have been disclosed on the front side. This language, does not expand the scope of the after-acquired property clause contained on the front. We will not penalize Jimmie Green Chevrolet for explaining on the back of the document an after-acquired property clause that clearly disclosed on the front of the document the property subject to the security interest.

In this court, Johnny Tennessee argues for the first time that the document contains a disclosure of a security interest in unearned or retained insurance premiums on the back in violation of 12 C.F.R. § 226.8(b)(5) and that it does not disclose the ten-day limitation on after-acquired consumer goods other than accessions, also in violation of section 226.8(b)(5). These arguments have not been properly preserved and we therefore cannot consider them. See General Electric Credit Corporation v. Smail, 584 S.W.2d 690, 699, n. 17 (Tex.1979).

We reverse that part of the court of civil appeals judgment that relates to the violation of the Federal Truth in Lending Act and render judgment that Johnny Tennessee take nothing under the Federal Truth in Lending Act.

      . The part of the court of civil appeals judgment that relates to the Deceptive Trade Practices and Uniform Commercial Code causes of action has not been appealed to this court. Consequently, this opinion will address only the alleged federal violations.

      . 15 U.S.C.A. §§ 1601, et seq. (1976). The Federal Truth in Lending Act was enacted “. . .to assure a meaningful disclosure of credit terms so that a consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” 15 U.S.C.A. § 1601.

      . The Code of Federal Regulations contains the regulations and interpretations which govern the Truth in Lending Act. These are promulgated by the Federal Reserve Board.

      . 12 C.F.R. §§ 226.1 et seq. Regulation Z is the name commonly used to describe the series of regulations published by the Federal Reserve Board to effectuate the Truth in Lending Act. See 15 U.S.C.A. § 1604 (1968). As a legislative rule, Regulation Z has the force and effect of federal law. See Mourning v. Family Publications Service, 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); General Electric Credit Corporation v. Smail, 584 S.W.2d 690 (Tex.1979).

      . Section 226.801(b) provides:
      Where a creditor elects to combine disclosures with the contract, security agreement, and evidence of a transaction in a single document, the disclosures required under § 226.8 shall, in accordance with § 226.6 be made on the face of that document, on its reverse side, or on both sides: Provided, That the amount of the finance charge and the annual percentage rate shall appear on the face of the document, and, if the reverse side is used, the printing on both sides of the document shall be equally clear and conspicuous, both sides shall contain the statement “NOTICE: See other side for important information,” and the place for the customer’s signature shall be provided following the full content of the document, (original emphasis)

      .12 C.F.R. § 226.8(a) states, in pertinent part: “. . All the disclosures shall be made together on either: (1) the note or other instrument evidencing the obligation on the same side of the page and above the place for the customer’s signature; or (2) One side of a separate statement which identifies the transaction.”

      . The after-acquired property clause in the Anthony decision is indistinguishable from the clause before us. In Anthony, the contract provided that the lender retained a security interest in the collateral and “all accessions to, substitutions for, replacements of and proceeds from the described collateral.” The Fifth Circuit held that “the provision for after-acquired collateral is clear as to what is, or may be, included, and satisfies 12 C.F.R. § 226.8(b)(5), which requires that notice that after-acquired property will be subject to the security interest shall be clearly set forth.” 559 F.2d at 1369.


author: STEAKLEY, Justice.

text:
    Roberto D. PEREZ, Petitioner, v. Marian S. PEREZ, Respondent.
    No. B-8298.
    Supreme Court of Texas.
    Sept. 25, 1979.

      M. M. Pena, Jr., San Antonio, for petitioner.
    Cox, Smith, Smith, Hale & Guenther, Patrick K. Sheehan, San Antonio, for respondent.
   STEAKLEY, Justice.

The issue in this case is whether military readjustment benefits paid to a husband spouse pursuant to federal statute are community property under Texas law. We hold they are not.

Roberto D. and Marian S. Perez were married on March 9, 1963; they were divorced seven and one-half (7½) years later on August 25, 1970. At the time of the marriage, Roberto was a first lieutenant in the United States Army Reserve. He served on active duty for sixteen and one-half (16½) years and attained the rank of major. He was involuntarily released from active duty, effective October 3, 1977.

A member of the Army Reserve who is involuntarily released from active duty, and “who has completed, immediately before his release, at least five years of continuous active duty” is entitled to a readjustment payment. 10 U.S.C. § 687(a). This payment is computed by multiplying his years of active service by two months’ basic pay of his grade at the time of release. The payment is limited to an amount not more than two years’ basic pay or $15,000, whichever amount is less. Under this formula, Roberto was entitled to and did receive $15,000 in readjustment benefits.

Marian brought this action against Roberto for a division of the readjustment benefits, the status of which was not determined in the divorce proceeding. She claims that a portion of the benefits were acquired during marriage and constituted community property as to which she and Roberto became tenants in common. She seeks partition and an award of her community interest.

The trial court ruled that the readjustment benefits were community property and awarded Marian $2,916.66, based on the six years and five months that the parties were married while Roberto was on active duty. The Court of Civil Appeals affirmed. 576 S.W.2d 447.

Marian asserts that Roberto’s military readjustment benefits are analogous to military retirement benefits. She argues that readjustment benefits are a property right earned during active service and, like retirement benefits earned during marriage, constitute community property. See Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976). We disagree. The legislative history of the federal statute indicates a Congressional intent to provide a non-eamed gratuity.

10 U.S.C. § 687 was enacted by Congress in 1956 to alleviate two related problems. The Korean War required the Army to recall a large number of reservists to active duty. After the war many were no longer needed by the military because of their ages. Consequently, Congress concluded “that they should be given an equitable payment upon involuntary release from active military duty to help them again readjust to civilian life.” H.R.Rep. No. 1960, 84th Cong., 2d Sess. 2 (1956).

The related problem was that of encouraging younger officers to remain with the military beyond their original term. It was shown to Congress that the excessive turnover of young reservists was “costly and detrimental to the military forces and the national security.” Id. Readjustment benefits were an incentive for qualified reservists to remain on duty. Their doing so would aid the national defense since officers remaining for longer terms would stabilize the officer structure of the military. Senate Rep. No. 2288, 84th Cong., 2d Sess. 3 (1956).

It is further significant that Congress rejected the recommendation that the readjustment benefits be increased in relation to the time of service, that is, to those officers who had served over ten years. It was the view of the committee that there was no “good reason for changing the rate of pay because the person had served a certain number of years.” H.R.Rep. No. 1960, 84th Cong., 2d Sess. 3 (1956).

The 87th Congress in 1962 amended 10 U.S.C. § 687 to increase the amount of readjustment benefits and the Congressional Reports echo the 1956 purposes of § 687 by making clear that the benefits were not earned wages:

This readjustment payment is intended to provide these officers with a lump-sum payment which would enable them to readjust to civilian life, and it is not intended as a “severance payment” for services previously rendered by the officers.

H.R.Rep. No. 1007, 87th Cong., 1st Sess. 5 (1961) (italics added).

The separate property of a spouse consists of property owned or claimed by the spouse before marriage; the property acquired by the spouse during marriage by gift, devise, or descent; and the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during marriage. Tex.Fam.Code Ann. § 5.01 (1975); see Graham v. Franco, 488 S.W.2d 390 (Tex.1972). It is apparent that readjustment benefits were bestowed by Congress upon an involuntarily released member of the Army Reserve as an unearned gratuity; and that to classify these benefits as a gift under Texas property rules comports with stated federal objectives. Cf. Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), where the Supreme Court of the United States in resolving a conflict between federal and state rules regarding the allocation of a federal entitlement placed a major emphasis upon whether recognition of the state rule would result in consequential injury to the objectives of the federal program. See also Ramsey v. Ramsey, 474 S.W.2d 939 (Tex.Civ.App.1972, writ dism’d).

Marian points out that Roberto has the option to transfer to a reserve unit as a commissioned officer or to revert to active duty status at the highest enlisted grade attained at the time he received his commission; and that thereby he could become eligible to receive retirement benefits. It is asserted that for this reason the rule applicable to military retirement benefits should also control the characterization of military readjustment benefits. This is not the problem at hand and we reserve the question of the nature of the benefits paid under such circumstances.

The judgments of the lower courts are reversed and judgment is rendered that Marian take nothing in her suit against Roberto.


author: PER CURIAM.

text:
    ESTATE of Asie Lee WILSON, Deceased, Petitioner, v. Leon WILSON, Respondent.
    No. B-8598.
    Supreme Court of Texas.
    Oct. 3, 1979.
    Cantey, Hanger, Gooch, Munn & Collins, S. G. Johndroe, III, Fort Worth, for petitioner.
    Hugh 0. Mussina, Dallas, for respondent.
   PER CURIAM.

This is an appeal from a probate court’s order denying an application to probate a holographic will. The court of civil appeals has reversed and remanded the cause for a new trial because of its conclusion that the admission into evidence of a prior judgment rendered by the district court of Motley County, Texas, constituted harmful error. 581 S.W.2d 729.

The prior judgment admitted in the trial court cancelled a deed from Asie Lee Wilson to Leon Wilson for the reason that it was procured by undue influence. The jury finding of undue influence is recited in that prior judgment. The instant will contest was based on a charge that Leon Wilson also procured the execution of the will of Asie Wilson by undue influence.

The court of civil appeals has held that in Texas a judgment is not admissible to show what matters were adjudicated unless the parties and the subject matter in both suits are the same or the matter determined is of a public nature and should be considered binding on all persons. The court reasoned that since the prior suit concerned a deed procured by undue influence and the present suit concerns a will procured by undue influence, the subject matter of the two suits is not the same.

While the relationship of the parties to the prior lawsuit, and their opportunity to represent their own interests therein, and the relevancy of the subject matter are important to the admissibility of a judgment, the court of civil appeals failed,, to recognize that this judgment became relevant and admissible as a direct result of the actions of Leon Wilson.

The record before us plainly shows that the prior judgment was admitted into evidence only after Leon Wilson had offered, and the court had received, the very deed procured by undue influence as well as the original petition in the prior suit alleging the undue influence. It is undisputed that Leon Wilson was a party to and defended the prior suit which resulted in the cancellation of the deed from his mother.

Tex.Rev.Civ.Stat.Ann. art. 3731a, § 1 provides that “[a]ny written instrument, certificate, record, part of record, return, report, or part of report, made by an officer of this State or of any governmental subdivision thereof, or by his deputy, or person or employee under his supervision, in the performance of the functions of his office and employment, shall be, so far as relevant, admitted in the courts of this State as evidence of the matter stated therein, subject to the provisions of section 3.” Section 3 is not important here, but provides for notice to the adverse party where necessary.

Once Leon Wilson put into evidence the prior deed and the petition in the prior lawsuit, the judgment became relevant and therefore admissible evidence under the clear terms of the statute.

Pursuant to Tex.R.Civ.P. 483, we grant the application for writ of error of the Estate of Asie Lee Wilson, Deceased and, without hearing argument, reverse the judgment of the court of civil appeals and remand the cause to that court for the reason that the decision of the court of civil appeals is contrary to Tex.Rev.Civ.Stat. Ann. art. 3731a, § 1.

The judgment of the court of civil appeals is reversed and the cause is remanded to the court of civil appeals for the consideration of the other points of error raised by respondent Leon Wilson.


author: CAMPBELL, Justice.

text:
    Martin W. KISSMAN et al., Petitioners, v. BENDIX HOME SYSTEMS, INC., Respondent.
    No. B-8229.
    Supreme Court of Texas.
    Oct. 3, 1979.

      Kuhn, Collins & Alexander, Richard W. Alexander, Austin, for petitioners.
    Kendall, Randle, Finch & Osborn, Terrence Kendall, Austin, for respondent.
   CAMPBELL, Justice.

This case began as a deceptive trade practice case involving the sale of a mobile home. The primary question on this appeal is whether the pleadings were sufficient to allow evidence of cost of repairs. Plaintiff, Kissman, in a nonjury trial, recovered judgment against Laney, seller of the mobile home for $1.00, and against Bendix, the manufacturer, for $23,748.81 plus attorney’s fees and court costs. Only Bendix appealed, and the Court of Civil Appeals reversed the trial court judgment and rendered judgment that Kissman take nothing. 582 S.W.2d 471.

The petition alleged:

(1) Kissman ordered from Laney a modular mobile home but received a “double-wide” mobile home;
(2) Representing “double-wide”, to be “modular” was an express warranty of description under the Texas Business and Commerce Code and was a deceptive trade practice;
(3) There were 18 defects in the home, some of which were never repaired;
(4) The defects rendered the mobile home “unfit” as a home, breaching an implied warranty of fitness;
(5) Their order was incorrectly taken by Laney;
(6) The failure of Laney and Bendix to negotiate was a violation of Laney’s implied warranty of merchantability;
(7) Kissman revoked his acceptance;
(8) Kissman sought to recover the market price of a mobile home ($22,000.00) as warranted by Laney and Bendix and incidental and consequential damages of the cost of moving to a replacement home and expenses for temporary lodging as provided by Section 2.715, Texas Business & Commerce Code.
Kissman prayed judgment against defendants, jointly and severally, for three times the actual damages as outlined above, ($72,000.00), attorney’s fees, costs, and for such further relief to which they may be justly entitled.

Kissman, by his last witness, attempted to offer evidence on the cost of repairs. Bendix’s objection, the trial court’s remarks, and the witness’ answer is as follows:

“MR. KENDALL: Your Honor, I would object to any attempt to introduce the prices of these particular items; that is not what the plaintiffs sued for. He has a suit on the basis he has revoked his contract and wants his money back and exemplary damages as well. He is not suing for the cost of making certain repairs.
“THE COURT: (To Counsel) — What is the purpose of making the estimate of repairs?
“MR. KUHN: Just to show, your Honor, just how serious the matter of the damage is, the amount of money it would take to make this home a livable home.
“THE COURT: I don’t know what purpose it would serve.
“MR. KUHN: All right. I pass the witness.
“THE COURT: I don’t see any purpose in it, but go ahead and get this covered if you want to.
“MR. KENDALL: Your Honor, we would have a running objection on that.
“THE COURT: Yes, the Court is not going to consider it in the lawsuit. I don’t see that it will hurt anything. (To the Witness) — Go ahead.
“A: The total cost—
“MR. KENDALL: Your Honor, we would have a running objection on that.
“A: The total cost to repair this would be $7,916.27.”

In its findings of fact, the trial court found the reasonable cost of repairing the damages to be $7,916.27, and entered judgment for three times this amount. Because Kissman did not assert a cause of action nor seek damages for cost of repairs, the Court of Civil Appeals held evidence on cost of repairs was not admissible.

Evidence of cost of repairs is not admissible if pleadings allege only the difference in the market value before and after a collision. Tinney v. Williams, 144 S.W.2d 344 (Tex.Civ.App.—Amarillo 1950, no writ). Evidence of market value before and after a collision is not admissible under allegations of cost of repairs. South Plains Ready-Mix, Inc. v. McDermett, 278 S.W.2d 575 (Tex.Civ.App.—Amarillo 1954, no writ).

Pleadings are sufficient under the Rules of Civil Procedure if they give fair and adequate notice to the adversary. Stone v. Lawyers Title Insurance Corporation, 554 S.W.2d 183 (Tex.1977). Rule 45, T.R.C.P. provides:

Pleadings in the district and county courts shall

(a) be by petition and answer.
(b) consist of a statement in plain and concise language of the plaintiff’s cause of action or the defendant’s grounds of defense. That an allegation be evidentiary or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole.

Kissman’s trial pleadings do not give fair notice of a claim for reasonable and necessary cost of repairs. The variance between the pleadings and proof is substantial, misleading, and prejudicial and therefore, fatal. Stone v. Lawyers Title Insurance Corporation, supra.

The prayer for general relief is of no assistance because a prayer must be consistent with the facts stated as a basis for relief. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130 (1942). Only the relief consistent with the theory of the claim reflected in the petition may be granted under a general prayer. Jennings v. Texas Farm Mortg. Co., 124 Tex. 593, 80 S.W.2d 931 (1935).

Kissman urges the Court of Civil Appeals should have remanded the cause for a new trial because Bendix did not make a pre-judgment motion or motion for new trial on the no evidence point relied upon by the Court of Civil Appeals. To support his position that the proper appellate predicate had not been made for an appeal, he relies on Gillespey v. Sylvia, 496 S.W.2d 234 (Tex.Civ.App.—El Paso 1973, no writ) and Southwestern Mobile Homes, Inc. v. Panel Corp. of America, 373 S.W.2d 879 (Tex.Civ.App.—Tyler 1963, no writ). These cases are not in point. Gfflespey was a jury case in which a motion for new trial was required prior to the Amendment of Rule 324, T.R.C.P. In Southwestern Mobile Homes no statement of facts was presented to the Court of Civil Appeals. A statement of facts was filed with the Court of Civil Appeals in this case; therefore, objections to the findings of fact can be raised for the first time on appeal. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156 (1950).

This brings us to the final question of whether this case should be remanded in the interest of justice.

The ends of justice do not require a remand in every instance where a case was tried on the wrong theory, City of Fort Worth v. Pippen, 439 S.W.2d 660 (Tex.1969), or where the evidence, was not fully developed, Jackson v. Ewton, 411 S.W.2d 715 (Tex.1967).

This case was tried on the one theory of recovery pleaded by Kissman and this theory was waived by him in the Court of Civil Appeals. He did not request a trial amendment. Judgment of only one dollar was had against Laney who is no longer in the case. The parties cannot be returned to the positions they previously occupied because a remand would require a trial only against Bendix. A remand would not be in the interest of justice.

The judgment of the Court of Civil Appeals is affirmed.


text:
    Canarlice HOLMES, Petitioner, v. O. C. OLSON, d/b/a Southern Investment Company, Respondent.
    No. B-8011.
    Supreme Court of Texas.
    Oct. 3, 1979.
    Legal Aid Society of Central Texas, Stephen Gardner, Austin, for petitioner.
    Law Offices of Travis R. Phillips, Robert F. Neal, Austin, for respondent.
   PER CURIAM.

The present suit arises from a consumer credit transaction. Canarlice Holmes filed suit seeking to recover statutory penalties from O. C. Olson, d/b/a Southern Investment Company alleging a failure to make disclosures required by federal “Truth-in-Lending” legislation. The trial court agreed with Holmes holding that the security agreement did not adequately describe the security interest held by the creditor as required by 15 U.S.C. § 1639(a)(8) and 12 C.F.R. § 226.8(bX5). The Court of Civil Appeals, however, reversed the judgment of the trial court holding the security interest adequate to satisfy the requirements of the federal statute and the regulations promulgated thereunder. 571 S.W.2d 211. In reaching its decision, the Court of Civil Appeals chose to rely on Grant v. Imperial Motors, 539 F.2d 506 (5th Cir. 1976) rather than the prior opinion of another Court of Civil Appeals, McDonald v. Savoy, 501 S.W.2d 400 (Tex.Civ.App.—San Antonio 1973, no writ). The Austin Court of Civil Appeals determined that its review of the federal statute and regulations should be governed by the federal court’s construction. We agree with the Court of Civil Appeals and disapprove the opinion in McDonald v. Savoy to the extent it conflicts with Grant v. Imperial Motors and the present opinion of the Austin Court of Civil Appeals.

In her application for writ of error, Holmes also asserts that the present opinion conflicts with Casillas v. Government Employees Credit Union of El Paso, 570 S.W.2d 57 (Tex.Civ.App.—El Paso 1978, writ ref’d n. r. e.). In Casillas, the El Paso Court of Civil Appeals concluded that the creditor had violated the Federal Act. Casillas, however, is distinguishable. In Casillas, the El Paso Court of Civil Appeals found two separate violations of the Federal Act. Only one violation depended on the holding in McDonald v. Savoy. Since a plaintiff under the Federal Act is limited to a single recovery regardless of the number of violations committed, we refused the application for writ of error with the notation n. r. e. Our writ notation, therefore, should not be interpreted as approving the pertinent portion of the McDonald opinion.

The judgment of the Court of Civil Appeals is correct and accordingly the application for writ of error is refused n. r. e.