author: PRITCHARD, Judge.

text:
    Edwin Ray HAYNES et al., Respondents, v. HAWKEYE SECURITY INSURANCE CO. and Clifford Eugene Linder, Appellants.
    No. WD 29814.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1979.
    Application to Transfer Denied May 17, 1979.
    As Modified May 18, 1979.

      Roy A. Larson, Gordon N. Myerson, Kansas City (Morris, Larson, King, Stamper & Bold, Kansas City, of counsel), for appellants.
    John C. Milholland and A. J. Anderson, Harrisonville, for respondents.
    Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

Plaintiffs recovered judgments upon verdicts for actual and punitive damages done to them by the alleged joint, conspiratorial and overt execution of an agreement between the defendants wrongfully to hinder and delay plaintiffs as judgment creditors in the collection of their judgments, in total principal amounts, exclusive of interest and costs, of $105,000 for the four plaintiffs.

Respondents have moved for dismissal of the appeal for failure to comply with the rules. The issues, however, are fairly ascertainable from all the briefs, and appellants have filed a supplemental brief revising points. The motion is overruled.

This case results from a long series of events beginning on April 28, 1956. On that date defendant Linder, who had been drinking, drove across the center line of U. S. Highway 71 near Peculiar, Missouri, and into a head-on collision with the Haynes’ automobile. That collision resulted in the death of Mrs. Haynes, and injuries to the three children, and Edwin Ray Haynes, who were passengers, for whom the five actions were filed in the circuit court of Jackson County, Missouri, in which county Linder then resided. Hawkeye Security Insurance Co. was requested by Linder to defend the actions, and on the grounds as set forth in Haynes v. Linder, 323 S.W.2d 505, 509 (Mo.App.1959), Hawkeye refused to assume the defense (or settle the case within the policy limits). It was ruled in that case that omnibus coverage existed for Linder, and Haw-keye paid on two of the judgments against it the amounts of $5,513 and $5,373.

Before the trial of the five cases, which was to the court, the Haynes offered to settle within the $10,000 policy limits, but Hawkeye refused. Judgments were entered for the Haynes on February 28, 1957, as follows: Edwin Haynes, $20,000; Jon Haynes, $40,000; Michael Haynes, $10,000; Ruth Ann Haynes $20,000; and Edwin Haynes, for the wrongful death of his wife, $25,000. The Haynes thereafter, before beginning garnishment proceedings, again offered to settle all five judgments within the policy limits, but Hawkeye refused. After non est executions were returned as against Linder on the judgments of Edwin and Jon Haynes, garnishment proceedings were commenced against Hawkeye, which resulted in affirmance of the two judgments against it in Haynes v. Linder, supra.

Thereafter, on September 3, 1960, Linder filed action against Hawkeye, alleging that it, in bad faith, refused to defend the five suits filed against him, and refused to settle the suits and judgments within its $10,000 policy limits, although the settlements could have been made, which Hawkeye knew. As damages, Linder alleged that he was liable for the judgments totalling $105,000.00 of the Haynes; he had been humiliated and embarrassed by the existence of the judgments and by garnishments and executions thereon, to his damage in the amount of $5,000.00; that as a result of Hawkeye’s bad faith his driver’s license and license plates were revoked and suspended by the Safety Responsibility Unit of the Department of Revenue because of Hawkeye’s denial of insurance coverage, resulting in his diminished ability to earn a living, to his damage in the amount of $5,000.00; and that he was required to secure an attorney to defend the five suits, to his damage in the amount of $7,500.00. It was further pleaded by Linder that Hawkeye denies any further liability to the Haynes on their judgments, that a justiciable controversy exists among Haynes, Hawkeye and Linder as to further liability, and that he was entitled to a declaratory judgment (Chapter 527, RSMo 1949) as to Hawkeye’s liability to the Haynes and to Linder. His prayer was for $17,500.00, and for an order that Hawkeye was liable to the Haynes for their $105,000 unpaid judgments, interest and costs, or in the alternative, that such amount be awarded him for payment to the Haynes. Linder made all of the Haynes parties to this suit. The Haynes filed an amended answer to Linder’s petition generally admitting his allegations, except that Hawkeye should pay Linder the amounts of the judgments, and asking for an order that Hawkeye pay those judgments to them. By counterclaim and cross-claims, the Haynes prayed further that Hawkeye be held liable to them on the unpaid judgments and that the amounts be paid to them.

The trial upon Linder’s petition and the counterclaim and cross-claims began on January 26, 1965. It was raised by counsel for Hawkeye that the sole issue was its bad faith as between it and Linder in failing to defend the Haynes’ claims and failure to settle within the policy limits, a contractual matter, and they were utter strangers, not beneficiaries under the contract and had no standing in the lawsuit whatsoever. The objection was overruled at the time subject to later briefing. The evidence received at this trial related to the services of Linder’s counsel in investigating the Haynes’ claims and in preparing for trial, as bearing upon counsel’s entitlement to a reasonable attorney fee; Linder’s suspension of his driver’s license for one year, which caused him to lose wages on weekends; investigation of the collision between the Haynes and Lin-der vehicles by one Hughes; the offers to settle after judgment the Haynes’ claims with Hawkeye; the trial of the garnishment proceedings against Hawkeye (which resulted in the judgments being affirmed, 323 S.W.2d 505, supra); and Hawkeye’s knowledge as to the permission given by its named insured, Bacus, to Linder, to use his vehicle.

After a short adjournment the court took the case under advisement from January 29, 1965, after several intervening hearings and proceedings, until March 29, 1968. In the interim, on May 20, 1965, the Haynes filed objections to the dismissal of Linder’s petition, in which they alleged, “according to their best knowledge, information and belief, that the plaintiff and the defendant Hawkeye have reached, or are in the process of negotiating, a settlement or compromise of the issues existing between them, which contemplates the dismissal of the plaintiff’s cause of action.” It was further stated by the Haynes that the dismissal without their joinder or consent, at that stage of the proceedings, “would result in the destruction of the valid existing legal and equitable rights of these defendants and would be to their great damage and prejudice.” It was requested that the court refuse permission to Linder to dismiss his cause of action, with or without prejudice. Then, on June 10, 1965, Linder and Haw-keye, by attorneys, filed a stipulation of dismissal stating that Linder’s petition shall be dismissed with prejudice as to Hawkeye, but “that nothing contained herein shall operate as a dismissal of the Cross-Claim of the defendant Haynes.” The facts concerning the dismissal, as they bear upon the present appeal, are set out hereinafter.

On July 26, 1965, the Haynes filed their motion to set aside Linder’s release of his claims against Hawkeye, and the “purported stipulation of dismissal.” That motion set up that Linder had asserted and pleaded valid claims ex delicto and ex contractu for money damages against Hawkeye, which were choses in action owned by Linder and were assets which Haynes could not reach or attach or levy by execution or garnishment at law, and that the Haynes had directly shown and asserted their equitable right to the proceeds of Linder’s claims against Hawkeye to the extent of their unsatisfied judgments against Linder, Lin-der’s claims against Hawkeye being in excess of the amounts owed by him to Haynes. It was stated that both Linder and the Haynes invoked the equity jurisdiction of the court, and that the Haynes had asserted and do still assert “their claims in the nature of a common law creditor’s bill in equity which is sometimes called an equitable garnishment, on the chancery side of the court, and have thereby claimed, and levied fixed equitable liens on, plaintiff’s causes of action against Hawkeye-Security Insurance Company. These liens cannot be defeated nor discharged by private agreement between plaintiff and [Hawkeye], ex parte, the Court and Haynes. In equity and good conscience, such should not be permitted.” It was further pleaded the release constituted a conveyance and assignment to hinder and defraud Linder’s creditors, the Haynes, as equitable lienors, in violation of § 428.020, RSMo 1949, and as such was void. A motion was made and granted to reopen the case so that the court could have the full facts as to the purported settlement, and a further hearing was had as to those facts.

On March 29, 1968, the trial court rendered its judgment holding that the stipulation of dismissal with prejudice theretofore filed by Linder against Hawkeye was proper, was approved, and Linder’s claim was dismissed with prejudice as to the date of entry of the judgment, the motion of the Haynes to set aside release and stipulation is overruled, “therefore, the Court does not need to determine those matters pertaining to the claim of the plaintiff Linder against the defendant Hawkeye Security Insurance Company on the plaintiff Linder’s claim for damages or for declaratory judgment.” The court further found the issues on the Haynes’ cross-claims in favor of Hawkeye, “but the right to recovery is one in tort for damages and that right is vested in the plaintiff Linder alone who became an insured” [under Hawkeye’s policy]. It was further adjudged that the Haynes had no standing in the suit between Linder and Hawkeye because it had been dismissed with prejudice, and the Haynes had no cause of action- against Hawkeye. The court further found that there was never conveyed to Hawkeye any settlement offer to settle the Haynes’ claims as purported in the letter of their counsel to Hawkeye’s counsel of April 18, 1958, that being “a mere recommendation and not an offer which could be accepted.”

The judgment in favor of Hawkeye was affirmed in Linder v. Hawkeye-Security Insurance Company, 472 S.W.2d 412 (Mo. banc 1971), but upon the sole ground that the Haynes could not proceed by way of equitable garnishment because of applicable statutes [§§ 379.195, 379.200, RSMo 1969] limiting the judgment creditor to the insurance money provided in the contract of insurance, and “the permitting of such additional recovery from the insurer by the judgment creditor would be in disregard of the statute and would necessarily result in our indirectly repealing the limitations therein.” The Supreme Court expressly declined to rule whether the trial court was correct in finding that there had never been a firm offer to settle within the coverage, and found it unnecessary to consider what, if any, claim for “excess coverage” Linder might have had against Hawkeye.

The rather detailed recitation of the history of this case is occasioned by Haw-keye’s Point II in which it asserts that the Haynes’ claims were barred under the doctrines of res judicata, estoppel, waiver and splitting of a cause of action as a result of prior litigation between the same parties. In Abeles v. Wurdack, 285 S.W.2d 544 (Mo.1955), it was contended that certain facts were adjudicated in a prior suit on an express contract which barred plaintiff from maintaining the present suit on quantum meruit for commissions. The court said, loe. cit. 285 S.W.2d 546[1, 3], “A former adjudication on the same cause of action between the same parties is conclusive in the second proceeding as to every issue of fact which was or might have been litigated in the first, under what is called estoppel by judgment.” [This doctrine would bar the Haynes from again litigating their entitlement to equitable garnishment, that cause of action having been determined adversely to them by the Supreme Court, thus settling the law.] Abeles goes on, “A judgment between the same parties on a different cause of action is binding as to facts actually decided, and necessarily determined in rendering the judgment (italics here added), under what is called estoppel by verdict. State ex rel. Gott v. Fidelity & Deposit Co. of Baltimore, Md., 317 Mo. 1078, 298 S.W. 83. The suit on the express contract was based upon a different cause of action from that of the instant suit upon quantum meruit. The contracts upon which the claims are based are different, and it matters not that they both seek to recover for the same article, that is, services. (Citing cases and authority.) Therefore, the judgment in the suit by plaintiff on the express contract is res judicata as to those questions, points or matters of fact in issue which were essential to a decision in that case, and upon the determination of which the judgment was entered, but not to other issues.” It was held that no “ultimate or supporting fact” was determined in the previous suit on the express contract. The Abeles principle is noted in 2 Freeman on Judgments, Fifth Edition, § 697, p. 1474, et seq., “In order that a judgment may operate as res judicata and be conclusive evidence of a fact sought to be established by it, not only must that fact have been in issue and determined in the former suit but it must have been a material fact in the case, one upon which the judgment in some way depended.” See also Restatement, Judgments, § 68 (1942); Restatement, Second, Judgments, § 68 (April 15, 1977); Vestal, Res judicata, Preclusion, V — 246; Crnic v. Croatian Fraternal Union of America, 89 S.W.2d 683, 690[4] (Mo.App.1935); Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11, 13[3-5] (Mo.App.1966). In the instant case no essential fact thereto was adjudicated in the previous suit to establish entitlement to equitable garnishment. Hawkeye’s cited case of Varnal v. Kansas City, 481 S.W.2d 575, 579 (Mo.App.1972), is thus distinguishable. The cause of action here asserted based upon the conspiratorial tort of the defendants is entirely different than that adjudicated in Linder v. Hawkeye-Security Insurance Company, 472 S.W.2d 412, supra, and there could for that reason be no splitting of a cause of action. There exists no basis for applying the doctrines of res judicata or collateral estoppel, and Hawkeye’s Point II is overruled.

Hawkeye’s Point I is that the Haynes failed to make a submissible case against it in that they failed to prove that the settlement of Linder’s claim for bad faith (refusal to defend him or to settle the case within the policy limits) against Haw-keye constituted actionable conspiracy or fraud as alleged. Hawkeye argues that the Haynes attempt to circumvent the general proposition of law that a judgment creditor has no standing to sue the liability insurer for excess monies over and above policy limits, based upon the alleged bad faith of the insurer to its insured in failing to defend or settle. Of course, that matter was ruled by the Supreme Court in Linder v. Hawkeye-Security Insurance Company, supra, as to the remedy by way of equitable garnishment to reach amounts above policy limits, and all that opinion holds is that equitable garnishment is not available in the face of statutory provisions limiting recovery to policy limits. It is imminently correct, that absent other factors, such as the conspiracy to settle to defeat the Haynes’ recovery here alleged, there existed a right to settle as between Linder and Hawkeye. But the allegations and proof here go far beyond the matter of a simple agreement to settle the lawsuit. The allegations pertain to the joint, conspiratorial and overt execution of an agreement between Linder and Hawkeye (and others) wrongfully to hinder and delay the Haynes as judgment creditors of Linder in the collection of their judgments. The evidence, which the jury could believe, adduced on that issue follows.

At the time that Linder filed his suit against Hawkeye alleging bad faith refusal to defend him and to settle the Haynes’ claims within the policy limits, these events had transpired: On September 8, 1959, one of the Haynes’ counsel wrote to Linder’s private counsel advising him of the finality of the Haynes’ judgments obtained on February 28, 1957, and that only $10,000 had been paid on them and that garnishments would be run on Linder’s wages and income, and executions on any of his property that could be found. This apparently precipitated Linder’s filing of his suit against Hawkeye. It was stipulated in the second trial (the record of which was received in this case) that Hawkeye, acting through its claims manager, Brandenburg, refused to defend Linder, and the claims manager redelivered the process, which had been delivered to him, to Linder’s counsel on June 7, 1956, before answer was due. Linder’s counsel testified in the second trial that he relayed information to Brandenburg that the Haynes’ suits could definitely be settled before trial for less than $10,000. After the judgments were entered, one of Haynes’ counsel wrote to Hawkeye’s counsel, following telephone conversations, offering to settle all five cases for less than the policy limits. That letter used the word “recommendation” to settle, which is claimed on this appeal to have been a fact adjudicated in the second trial as not a firm offer to settle. As above noted, that fact was unnecessary to the final decision in the second trial, and a fair reading of counsel’s testimony leads to the conclusion, which the jury could make in this case, that the word “recommendation” referred to the presentation of a settlement of the then three minor Haynes cases for approval by the court, and counsel had every reason to believe that the settlement would be approved, and thus there existed a firm offer to settle within the policy limits also after judgment.

The garnishment case, Haynes v. Linder, 323 S.W.2d 505 (Mo.App.1959), settled the question of whether Linder was an additional insured of Hawkeye under its policy issued to one Bacus who had given Linder permission to drive.

The first inkling that the Haynes’ counsel had of the settlement negotiations between Linder and Hawkeye was a letter written to them on May 14, 1965, advising that an offer had been received from Hawkeye’s counsel to settle Linder’s claim for damages and counsel’s claim for attorneys’ fees; that the client was insistent upon acceptance of the offer; that counsel believed that the issues raised by the Haynes’ counterclaims and cross-claims could be litigated and would not be affected by Linder’s settlement and dismissal of the petition [these counterclaims and cross-claims were adjudicated against the Haynes on their theory of equitable garnishment against Hawkeye, 472 S.W.2d 412 (Mo.banc 1972)]; that the Haynes’ legal position should not be altered by Linder’s removal from the litigation; and that counsel would have preferred to see the litigation through even though it had meant a considerable investment of time without appreciable increase in the expected return [undoubtedly because of the existent unsatisfied Haynes’ judgments], but counsel were not in the position to override Linder’s desires in view of the offer.

Promptly, on May 18, 1965, Haynes’ counsel forwarded a general execution in their case to the sheriff of Cole County, Missouri, with directions to serve a summons to garnishee on the Superintendent of Insurance, directed to Hawkeye. These papers were served upon the Superintendent of Insurance on May 24,1965, and were transmitted to Hawkeye by him on May 25, 1965. The garnishments, motion and notice were served on Linder’s counsel and on Haw-keye’s counsel in Kansas City on May 18 and 19, 1965.

On May 18, 1965, Hawkeye issued its draft by air mail, “send to regional office intact”, addressed to Clifford E. Linder, 11919 Merritt, Grandview, Missouri, payable to the order of Clifford Eugene Linder, “In full settlement of all claims of any nature against the Hawkeye-Security Ins. Co. and dismissal of Case # 628075, filed in Div. 3, Circuit Court of Jackson County, Missouri, at Kansas City. Policy Number A 479667. Claim Number 3-24043. Robert A. Bacus. Date of Loss 4-28-56.” The draft was endorsed “Clifford Linder”, and bears this notation on the reverse, “I’m accepting the guarantee of the Grandview Bank for Clifford Eugene Linder — WJB 5/24/65.” The draft was marked paid May 25, 1965. Before a notary public on May 21, 1965, Clifford Eugene Linder signed a release for $1,250 to Hawkeye, from all actions, claims and demands which he had or may have on account of the April 28, 1956, accident. He further agreed to dismiss with prejudice his pending lawsuit against Hawkeye, and covenanted that he had not assigned the claim to any persons. [This release does not reference the Haynes’ counterclaims and cross-claims.] An envelope in evidence, postmarked May 21, 1965, “Air Mail”, is addressed to Hawkeye in Des Moines, Iowa, “Attn: Mr. W. J. Brandenburg.” The $1,250 draft to Linder was sent by Haw-keye directly to him, bypassing the offices of its Kansas City counsel. The full general release executed by Linder was also mailed directly to him and it was never examined or approved by his counsel. One of Linder’s counsel testified that they directed Haw-keye’s counsel to mail the settlement draft and any release directly to Linder because they did not want to take it upon themselves to have any funds due Linder after they “had possibly not in our client’s best interest” advised Haynes’ counsel of the proposed settlement.

On June 10, 1965, Linder and Hawkeye, by counsel, stipulated that Linder’s petition and cause of action against Hawkeye be dismissed with prejudice. It further recites: “The parties to this Stipulation further stipulate that nothing contained herein shall operate as a dismissal of the Cross-Claim of the defendant Haynes.” The order of dismissal, and the refusal of the Haynes’ motion to set it aside, precipitated the appeal of Haynes upon the theory that they had a right to equitable garnishment, which was ruled against them in Linder v. Hawkeye-Security Insurance Company, 472 S.W.2d 412 (Mo.banc 1972).

On June 21, 1965, Hawkeye issued its draft for $2,750 to Linder’s counsel for legal services to him in the 5 suits. Haynes, et a 1. v. Linder, and in Linder v. Hawkeye-Se-curity. On August 18, 1965, the Haynes propounded interrogatory to garnishee, Hawkeye, asking if it had paid Linder, or to anyone acting as his agent or anyone on his behalf, any money, property or effects since the time the garnishment was served on it [May 24, 1965]. Hawkeye answered under oath, on September 29,1965, that it had not paid any money, property or effects to Lin-der or anyone in his behalf.

In his previous testimony, given here in evidence, Linder testified that after the Haynes obtained their judgments, with the active cooperation of his wife, he put everything in her name, including the title to a new truck he bought in 1960. The family car was put in the wife’s name; a vacation cabin on a lake was owned by the entirety; his sole source of income, wages as a cement finisher, were paid by checks, which were promptly taken home and given to his wife; his life insurance was purchased by his wife; and he testified that he held no assets in his name.

At the outset of the trial of Linder’s suit against Hawkeye for its alleged bad faith refusal to defend or settle the cases within the policy limits, Hawkeye’s counsel conceded in open court that it owed a reasonable attorney’s fee to Linder’s counsel in his representation of Linder who was determined to be Hawkeye’s insured, and it stood ready, willing and able to pay the fee, but it could not be agreed as to what was a reasonable attorney’s fee.

The present action for conspiracy has its basis in the law of fraudulent conveyances. It involves the conspiratory release by Lin-der, for an inadequate consideration, of a viable and valid cause of action or claim for damages. Indeed, § 428.020, RSMo 1969, speaks of the release of a claim in these words: “Every conveyance or assignment in writing, or otherwise, of any estate * * or in things in action, * * * made or contrived with the intent to hinder, delay or defraud creditors of their lawful actions, damages, forfeitures, debts or demands, * * * shall be from henceforth deemed and taken, as against said creditors and purchasers, prior and subsequent, to be clearly and utterly void." [Italics added.] At 37 C.J.S. Fraudulent Conveyances § 14, p. 859, this proposition is stated: “In most jurisdictions, however, by virtue of an express statutory provision, * * * choses in action fraudulently assigned or transferred may be reached by creditors in equity, * * * q^e ruje app]jeSj for example, to promissory notes, * * * ; and it has also been applied to a claim for damages for a. tort with respect to the person. The release or cancellation of a debt or claim by an insolvent person may be fraudulent and void as to his creditors.” Cited with respect to the last of the here italicized quote is the case of Pickering v. Hartsock, 221 Mo.App. 868, 287 S.W. 819 (1926). In that case there was a judgment against a physician for $5,000 for his malpractice, from which he appealed. He did not perfect the appeal, but he was insured by the Medical Protective Co. Hartsock was insolvent, as the attorney for his insurer found, and an offer of settlement was refused by plaintiff. The attorney entered immediately into negotiations with Hartsock for a release of the insurer’s obligation under its contract with him, which contract was prepared by the insurer in advance at its office in Fort Wayne, Indiana, and which was dated the day of execution on the judgment. Garnishee insurer paid Hartsock $3,500 in the form of a check, also prepared in Fort Wayne, and arranged that it might be cashed by Hartsock. The reply to the garnishee (insurer’s) answer set up that the release was fraudulent. The only difference between the Pickering case and the instant one is that Hartsock did not have a pending action against the Medical Protective Co., but only a contractual claim which he released. At page 823, the court noted that there was evidence from which the court could find an actual intention to defraud in the so-called settlement by the parties to it; that it was not made (as here) in the usual course of business, but the insurer had Hartsock come to Kansas City for his payment, and assisted him in cashing the check so he might get the money in cash and thus be enabled to defeat his creditors by having his assets in such convenient form. The insurer knew (as here) that Hartsock was insolvent. “It was not a settlement as ordinarily understood, but merely a voluntary release of the cause of action upon the payment of money, or the release of a fully liquidated amount with nothing in dispute upon 'the payment of a lesser sum than that due. * * * The transactions shown in this record smack of sharp practice on the part of the garnishee, and, taken as a whole, show fraud strongly appealing to the courts for adjustment.” The court affirmed the judgment but on condition that there by a remittitur of the $3,500 paid to Hartsock, the court assuming, absent evidence, that that amount was paid to plaintiffs.

Following the Pickering case in this state is Graff v. Continental Auto Ins. Underwriters, 225 Mo.App. 85, 35 S.W.2d 926 (1931), holding that a like attempted settlement of a policy liability between the insured judgment debtor and his insurer was in fraud of the rights of the judgment creditor. It should be noted that the Graff case refused to allow a credit for amounts paid by the garnishee to its insured in settlement of his contractual claim. In this, Graff is correct because, as said at page 933[17], the statute says the release is “utterly void as to plaintiff, and * * * the garnishee is liable * * * for the entire indebtedness under its policy without regard to the payment made in consideration of the purported release.” A further reason would be that the fraudulent grantee or releasee (the insurer) was part and parcel of the fraud. Without doubt Pickering should no longer be followed with respect to its requirement of remittitur of amounts paid by the insurer to its insured judgment debt- or. As to the liability of the fraudulent or collusive grantee for the full value of the property subject to the creditor’s claim, see also Miller v. Kaiser, 164 Colo. 206, 433 P.2d 772 (1967); Damazo v. Wahby, 269 Md. 252, 305 A.2d 138 (1973); 37 C.J.S. Fraudulent Conveyances § 444, p. 1297; 37 Am.Jur.2d, Fraudulent Conveyances, § 124, p. 803.

Other cases following the reasoning of the Pickering and Graff cases, supra, are: Colgan, et al. v. Jones, 44 N.J.Eq. 274, 18 A. 55 (1888) [where a judgment debtor assigned his claim for personal injuries for $330 to his attorney, who subsequently recovered judgment on the claim for $4,000. Held, fraudulent as to the judgment creditor insofar as the subsequent judgment exceeded a reasonable attorney’s fee]; Michel v. American Fire & Casualty Co., 82 F.2d 583 (5th Cir. 1936) [where plaintiffs had judgment for $6,200 against an insured, who after garnishment against the insurer, accepted $1,000 in cash and gave a release to the insurer for all obligations under the policy. Held, the release was in fraud of creditors and the issue made a jury question]; and more closely analogous to the case here, Celano v. Frederick, 54 Ill.App.2d 393, 203 N.E.2d 774 (1964) [where the complaint alleged that the defendants (including the two appealing defendant attorneys) conspired together and formed a deliberate purpose fraudulently to deprive Celano of funds due him from his judgment debtor, Frederick, by negotiating and agreeing to settle the latter’s $6,000,000 suit theretofore pending, in violation of a court order requiring defendants in Frederick’s suit to pay over to Celano money that Frederick might be or become entitled to by reason of any order or decree in his undetermined suit. Held, a cause of action was adequately stated, and the judgment was reversed and the case remanded]. Note also C. Bewes, Inc. v. Buster, 341 Mo. 578, 108 S.W.2d 66, 70[11—13] (1937), where the evidence was that Buster was insolvent, and the cancellation of leases without adequate consideration was fraudulent as to plaintiff entitling it to equitable relief against Buster and his releasee, there being existent badges of fraud as noted at page 71.

In his claim against Hawkeye for its alleged bad faith refusal to defend him and to settle within the policy limits, Linder’s measure of damages consisted of the balance of the Haynes’ judgments against him, and interests and costs, plus his personal consequential damages. Zumwalt v. Utilities Ins. Co., 360 Mo. 362, 228 S.W.2d 750, 755 (1950); Landie v. Century Indemnity Company, 390 S.W. 558, 562[2] (Mo.App.1965); Annotations, “Liability Insurer—Refusal to Defend”, 49 A.L.R.2d 694, 711, 718; “Liability Insurer—Duty to Settle”, 40 A.L. R.2d 168, 190, and especially page 214, as to a greater reason to settle after verdict against the insured. It was stipulated that prior to June 7, 1956, Hawkeye had conducted a complete and thorough investigation of the facts and circumstances surrounding the casualty and possession of, driving of and permission to drive the 1951 DeSoto, and had in its possession a true copy of the accident report of the Missouri State Highway Patrol; and that the policy of insurance was in full force and effect on April 28, 1956 (the date of collision) afforded coverage to Linder by adjudication (323 S.W .2d 505).

In this action at law, triable to a jury, for the tort of civil conspiracy of Lin-der and Hawkeye to settle and release his claim for bad faith refusal to defend and settle, under the foregoing evidence, the jury could reasonably have found these facts which support its verdict:

Linder had a good claim (a “vested right of recovery” as the Haynes say) with good possibility of recovery against Hawkeye. The judgment against Linder in favor of the Haynes was in the most part a liquidated ascertainable amount, upon facts which had been adjudicated as to his own liability. Additionally, he had his $17,500 claim for personal consequential damages. The amount of possible recovery by Linder against Hawkeye is thus not speculative as here contended by it, but the jury would be limited in fixing the Haynes’ actual damages at the amounts of their judgments, interest and costs. It is noted that the jury gave only the principal amounts of the judgments as actual damages. Hawkeye had made its own investigation of the accident, from which it could not have but known that Linder was liable in possible substantial amounts for the Haynes serious injuries. Hawkeye knew the facts concerning Linder’s having the status of an additional insured (under the policy omnibus coverage) to the policy covering Bacus as a named insured. Hawkeye knew that it could have settled the Haynes’ claim within the policy limits both before and after judgments against Linder. As to the duty to settle, the Zumwalt case noted 228 S.W.2d at page 754, citing and quoting cases, that bad faith on the part of the insurer would be the intentional disregard of the financial interests of the insured in the hope of escaping the responsibility imposed upon it by its policy. The facts, investigated and known to Hawkeye, as to Bacus’ granting to Linder the permissive use of the vehicle, should have caused it to assume the latter’s defense. No fact here, as ultimately judicially determined (323 S.W.2d 505), excluded policy coverage. A refusal to defend, “even though based on an honest mistake of the insurer, is an unjustified refusal and renders the insurer liable for breach of contract.” 49 A.L.R.2d at page 711[7],

The jury could further find that the consideration of $1,250 for Linder and $2,750 total for his attorneys paid by Hawkeye for the settlement of his claim and dismissal of his suit with prejudice was grossly inadequate as compared to the fixed amounts of the possible recovery against him of the Haynes’ judgments, interest and costs; that Linder engaged in a continuing conspiracy with his wife to place all his assets, earnings and otherwise, beyond the reach of his creditors, including the Haynes. Hawkeye knew through its participation as a party in prior proceedings, wherein Linder’s testimony was given, that he was insolvent. It would have been of little moment to Linder that his settlement for a paltry sum of his claim against Hawkeye, that $1,250 even being put beyond the reach of the Haynes because it was paid directly to Linder, would render their judgments worthless. Yet Hawkeye proceeded to relieve itself of any possibility of having to pay over to the Haynes and joined the pre-existing conspiracy of Linder and his wife by these overt acts, which the jury could find were further badges of fraud: There was a departure from ordinary business methods of handling release claims and dismissal of litigation through the parties’ counsel; the release sent directly to Linder and executed by him was not read and approved; his counsel’s name as co-payee was omitted in the draft to him; Hawkeye’s counsel were used by it to transmit payment of fees,paid to Lin-der’s counsel; the release signed by Linder made no mention of an additional agreement to pay his counsel; the hurried acceptance by Hawkeye of its draft to Linder which was improperly endorsed (done after garnishment upon it and notice thereof to its attorneys); the false answers to interrogatories that Hawkeye had paid nothing to Linder or to anyone on his behalf; and that Linder unconditionally and without reservation released his claim against Haw-keye, without reference to the dismissal of his suit, which purported to reserve to the Haynes their rights asserted in their cross-claims against Hawkeye.

The elements of a civil conspiracy as set forth in Dickey v. Johnson, 532 S.W.2d 487, 502 (Mo.App.1975), are here present: (1) The two or more persons are Linder, his wife, and Hawkeye; (2) The object or purpose to be accomplished was to deprive the Haynes of any possibility of collecting their judgment, interest and costs; (3) The meeting of the minds is shown by the execution of Linder’s release, direct payment to him, and a stipulation of dismissal of his claim against Hawkeye, which are also (4) overt acts; and (5) resultant damage to the Haynes by depriving them of the chance to recover on their judgments from any proceeds of Linder’s claim. The Haynes made a submissible case, and appellants’ Point I is overruled.

Point III is that the court erred in giving Form of Verdict Instruction No. 26 because it did not allow the jury to find different amounts of punitive damages against each defendant, but compelled a finding of the same amount against both defendants. The judgments entered upon verdicts were these: Edwin Ray Haynes, $40,000 actual and $26,500 punitive damages; Jon Haynes, $20,000 actual and $13,-000 punitive damages; Michael Haynes, $10,000 actual and $6,500 punitive damages; and Ruth Ann Haynes, $35,000 actual and $21,000 punitive damages. The latter voluntarily remitted $1,641.90 from her award of actual damages. Hawkeye cites State ex rel. Hall v. Cook, 400 S.W.2d 39 (Mo. banc 1966). That case held merely that where partners were jointly sued for actual and punitive damages, it was proper to require the relators to answer interrogatories as to their wealth. The matters of the injustice of allowing the recovery of punitive damages against several defendants based upon evidence of the wealth of only one of them; and the injustice of allowing recovery against all defendants for punitive damages where there were differing degrees of culpability among them, was discussed. The case was one of discovery of evidence before trial, and not one upon the sufficiency of evidence to require the giving of separate instructions as to each defendant’s liability for punitive damages. That much is clear by the dictum at page 42 of Hall where it was said that where the submission as to punitive damages was to be for a verdict against all defendants jointly for the same amount, evidence of the wealth of one defendant would be improper. The court had noted (page 41[3-5]) that findings in verdicts are authorized for different amounts of punitive damages against several defendants in the same action, depending on differing degrees of culpability and other circumstances shown by the evidence. The further dictum at page 42 is: “We hold that where the evidence supports such a separate submission the jury should be instructed that they may find punitive damages against several defendants in different amounts; and when this is done evidence of the wealth of each is admissible.” [Italics added.] See Annotation “Punitive Damages — Apportionment”, 20 A.L.R.3d 666. The import of the Hall case is only that separate verdict forms are required as to punitive damages which may be awarded only if the evidence justifies them — i. e., that there are varying degrees of culpability. Here, there was no evidence that Lin-der and Hawkeye were guilty of different degrees of culpability. All that is shown is that they acted in concert. And, aside from evidence that Linder was insolvent at the time he released his claim against Hawkeye to it in 1965, there was no evidence as to the wealth of either at the time of this trial. If Hawkeye thought that these two matters were in evidence, and that the forms of verdicts did not adequately cover the matter of separate verdicts for punitive damages, it should have requested them. Point III, under these facts and circumstances, is without merit.

By Point IY, Hawkeye levels seven related charges of error in the giving of the Haynes’ four verdict direction instructions, each of which, except for substitution of the names of plaintiffs, is in this form:

“Your verdict must be for plaintiff _if you believe:
First, Hawkeye Security Insurance Company agreed with Linder that apart from Linder’s right to recovery from Hawkeye of the amounts of the judgments which plaintiffs held against Lin-der, Hawkeye was liable to Linder for damages and attorney fees totaling $4,000.00; that Hawkeye would pay $2,750.00 directly to Linder’s attorneys for Linder; that Hawkeye would remit the balance of $1,250.00 directly from Iowa to Linder at his home and that Lin-der would release and forever extinguish his right to recovery from Hawkeye of the amounts he owed the plaintiffs on their judgments, and
Second, defendants made said agreement with the intent to prevent any money for which Hawkeye was liable to Lin-der from being paid to plaintiffs on their judgments after the time of said agreement, and
Third, Hawkeye Security Insurance Company and Linder carried out their said agreement, and
Fourth, as a direct result of the defendants carrying out said agreement plaintiff _was damaged. Not in MAI”.

Hawkeye first says (A) that the instructions constituted a roving commission to the jury and allowed for speculation and conjecture on its part, and were not free from argument. It is argued that the instructions assumed that Linder would have made a recovery in his suit against Haw-keye, and there was no evidence that he would have done so.

This is a cause of action in tort for damages resulting from the overt acts in carrying out a conspiratorial agreement. Royster v. Baker, 365 S.W.2d 496, 499[2—4] (Mo.1963), and cases and authority cited, wherein it is said, “The gist of the action is not the conspiracy, but the wrong done by acts in furtherance of the conspiracy or concerted design resulting in damage to the plaintiff.”

It should first be noted that Linder’s claim against Hawkeye, above detailed, was for his damages for becoming liable to the Haynes upon their judgments ($105,000), and for his own consequential damages including his attorney fees, and that Haw-keye judicially admitted liability in some amount to Linder for attorney fees (a part of his claim). There is no speculation or conjecture, or assumption that Linder would have recovered against Hawkeye or in what amount, if so. The gist of the Haynes claim and their submissions in the verdict directing instructions is that the completed conspiratorial agreement resulted in the damage that any possibility of the Haynes having execution on their judgments was prevented and destroyed. The instructions speak of Linder’s right to recovery of the Haynes’ judgments, which right had already been proven, judicially determined as to Linder’s policy coverage, and by facts showing a bad faith refusal to defend or settle the claims within the policy limits, which are alluded to above. The instructions submitted the ultimate facts to be found by the jury as to the existence of the conspiratorial agreement, the overt acts done in carrying it out, its purpose, and resultant damage.

Arguments (B) and (C) are that the verdict directing instructions assume that some act on the theory of civil conspiracy was unlawful, or that defendant(s) in some manner acted unlawfully in accomplishing some illegal act, or that the agreement set out in Paragraph First was somehow unlawful or illegal. It is obvious that if those hypotheses were included in the instructions, which they were not, they would have been erroneous as being argumentative. The facts in evidence would permit the jury to find, as it did, under the submission of the instructions that the purpose of Linder and Haw-keye was unlawful, to “forever extinguish his right of recovery from Hawkeye * * with intent to prevent any money for which Hawkeye was liable to Linder from being paid to plaintiffs”, thus amounting to a fraud upon the Haynes. Nor are the words “liable” and “right to recovery” argumentative and misstatements of the law as contended (D), because they are words of everyday common meaning, easily understood by the jury. The intent of Linder and Hawkeye to prevent any money being paid to the Haynes on their judgments, which Hawkeye says (E) is not supported by direct evidence, was subject to a legitimate inference by the jury—Linder was paid $4,000 on his claim for consequential damages, ignoring the Haynes’ rights of execution, and Hawkeye had the very valuable benefit of being forever relieved of paying anything to Linder which would be subject to those executions. The damages of the Haynes were not speculative as contended (F). Through Linder’s release of his vested right of recovery, the Haynes lost any possibility of collecting the fixed, ascertainable and liquidated amounts of their judgments. Point IV is overruled.

Point V is that the court erred in giving the punitive damage instructions because there was no evidence that Hawkeye was guilty of willful, wanton or malicious acts. The facts set forth above demonstrate that Hawkeye intentionally set about to relieve itself of any obligation to Linder, knowing he was insolvent, proceeding out of the usual course of business, falsely answering an interrogatory, and knowing that Linder had a vested right of recovery for the amounts of excess judgments against him. The intentional acts are embraced within the conspiratorial agreement between Linder and Hawkeye, and their wrongful purpose to render the Haynes’ judgments worthless, to their damage. The instructions were amply supported by the evidence. Note the case speaking of an intentional wrongful purpose justifying submitting the issue of punitive damages, Brown v. Sloan’s Moving & Storage Company, 296 S.W.2d 20, 26[13—15] (Mo.1956), and cases cited. Point V is overruled.

Hawkeye’s Point VI is that Edwin Ray Haynes’ case was barred by the statute of limitations. As noted, supra, Linder’s claim against Hawkeye, and the Haynes’ cross-claims, were dismissed by the trial court therein on March 29, 1968. Thereafter, appeals pended, and there was a petition for appeal to the Supreme Court of the United States which was denied, 405 U.S. 950, 92 S.Ct. 1176, 31 L.Ed.2d 227. The present action, sounding in tort for civil conspiracy, was filed on March 24, 1972. Hawkeye argues that the five year period of limitations, § 516.110, RSMo 1969, began to run in 1965, when the alleged wrongful acts were committed. Linder and Hawkeye filed their stipulation for dismissal on June 21, 1965, and the Haynes immediately objected and moved to set it aside. The stipulation was held in the bosom of the court upon the motion until March 29,1968, when the motion was overruled. “It is held the period of limitation commenced upon the occurrence of the last of the series of overt acts (resulting in damage) under the conspiracy. (Citing case and authority).” Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570, 577[21] (1945). Linder’s claim for bad faith refusal to defend or settle the Haynes’ claims against him pended until it was judicially determined as to the propriety of the stipulation of dismissal. The Haynes’ present claims were filed well within the five year period of limitations. Point VI is overruled.

The garnishment of May 24, 1965, which was served upon Hawkeye, and upon its counsel and Linder’s counsel, on May 18 and 19, 1965, was run only as to the judgment of Ruth Ann Haynes. By its Point VII, Hawkeye contends that the court erred in finding that all four of the Haynes made a submissible case, and in submitting their claims in the verdict directing instructions on the basis of any evidence on the garnishment, “in that Edwin, Jon and Michael Haynes were strangers to the garnishment.” That garnishment was merely an evidentiary fact of the execution of the conspiratorial agreement to destroy the col-lectibility of the Haynes’ judgments. Although all of the facts were known to Haw-keye as to Linder’s insolvency, and the validity of his claim against it, in the face of the garnishment, it proceeded to pay Linder and his counsel and take his release for an inadequate consideration. Hawkeye, even then, did not hold up negotiations for the release, but proceeded to consummate it. The instructions do not refer to the garnishment, but only to the ultimate conspiratorial agreement made with intent to prevent any money being paid to the Haynes, to their damage. The evidence of the single garnishment was relevant to prove collusion, which may be inferred from the acts of the parties and surrounding circumstances. Sandler v. Schmidt, 263 S.W.2d 35, 40[10—11] (Mo.1953). Point VII is overruled.

Hawkeye, in its Point VIII, prays for remittitur of both actual and punitive damages because they are excessive, and are not supported by the evidence. It is argued that the damages should be reduced to “zero”, but that cannot be because the verdict of the jury would be then a nullity. Boone v. Richardson, 388 S.W.2d 68, 76 (Mo.App.1965). It is also argued that the judgments against Linder (of which Hawkeye cannot complain, although urged in its point, and Linder himself not having participated personally in this appeal) amount to double recovery against him. Of course, there were original judgments against Linder for his tort-negligence in the operation of his vehicle. Then, there is a judgment against him for his conspiratorial tort in this action. These causes of action are entirely separate, but it is unnecessary to this decision to consider whether Linder, assuming his future solvency, would be liable for executions on the original judgments against him. The matter of the Haynes’ damages occasioned by the conspiracy has been above considered as not being speculative. No other reason is suggested in Hawkeye’s argument which would be a basis for any remittitur, even of the punitive damages awarded. Point VIII is overruled.

As noted in the statement of facts, in the original accident, Linder drove across the center line into collision with the Haynes’ vehicle. These facts bear on Haw-keye’s failure to defend Linder, in part an issue in Linder’s claim against it, which the jury was entitled to consider in this case as to Linder’s purported settlement with it. The matter is not irrelevant as contended by Hawkeye in its Point IX, which is overruled.

The judgments are affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    R. E. SANDERS, Plaintiff-Respondent, v. Mary Mildred DeWITT, Individually and as Executor of the Estate of J. Roger DeWitt, Deceased, Defendant-Appellant, and Kaybee Construction Co., Inc., Defendant.
    No. 29882.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1979.

      Rufus Burrus, W. Raleigh Gough, Independence, for defendant-appellant.
    Carl E. Laurent, Independence, for plaintiff-respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge, Presiding.

Appeal by landowner from judgment for subcontractor against general contractor in sum $15,347.50 plus interest for reasonable value of labor and materials charged as a lien against her real estate. The questions are whether there was a written contract which precluded recovery in quantum meru-it; whether a mechanic’s lien was precluded for failure to file a just and true account and properly describe the land to be charged; and whether the court failed to give credit for part payment. Affirmed.

The lien as filed August 1,1975, described the property as Lots 52 and 53 Yaile Park, Independence, Missouri, owned by defendant, and detailed an account of labor and materials furnished to such realty on various dates from October 1, 1974, to April 4, 1975, a total of 1184½ hours at $15, $17,-767.50,to which was added $580 in rental and materials, and from which was subtracted a $3,000 payment November 12, 1974, with resultant balance claimed of $15,347.50.

Defendant Kaybee defaulted. Defendant DeWitt admitted ownership of the described property and demand for and refusal of payment, and otherwise denied plaintiff’s petition to enforce the lien.

R. E. Sanders, a painting contractor, dealt with Kaybee Construction Co., Inc., through its officer, Wally Kurok, with respect to preparation work and painting of the Vaile Mansion, 1500 North Liberty, Independence, Missouri, sometime prior to October 1, 1974. He was asked to bid on preparation of the exterior wood and application of two coats of primer and one coat of finish. He examined the building and found it to be “a castle type brick and wood house * * * 80 feet high * * * very ornate * * * a lot of mill work on it and the back tower * * * comparable to four of five stories.” He prepared a bid of $7500 for “prep work” and $8130 for painting, which he gave to Mr. Kurok for the general contractor. Mr. Kurok returned the bid, “the first one I made out,” and stated “there was wording in there about the removal of the paint * * * Mr. Burrus didn’t like and reworded this and took it back to him, the second one.” The first bid called for removal of paint “by means necessary”; the second “by sanding and scraping.” The second bid was never returned to him. He signed it but never received a copy. After presentation of the second bid he met with Mr. Burrus, II, “and we discussed the price on it and was agreeable and there was some discussion as to how long it would take to clean an area where it could be a smooth, paintable area and they agreed to pay me the rate of $15 an hour to run a sample there for a day or two so we could get a pretty good idea how long it would take to clean it. We never did then, so I just gave them a price of the prep work and the painting, labor and material.” He was told by Mr. Kurok “to go to work,” and he did so October 1,1974. He worked along with his employees “before the job was stopped.”

The house had not been painted for 25 years. “We bought vertical air grinders and sanding blocks and anything we needed, air hose to go on top and ground off all the paint that was rough, handsanded an awful lot of it ⅜ * * on the windows we had rotary electric sanding apparatus to get the sash around there * * * we used every other means except burning.”

He paid his employees each week. He kept track of hours and materials on a “pad” in his truck and ’transferred them to a record he kept at home. “That way there wasn’t any guessing about it.” He showed 1184V2 hours charged at $15 per hour, $17,-767.50, and sanding discs, paint and compressor rental, $580, a total of $18,347.50. He also showed a credit of $3,000, November 12, 1974, and a balance due of $15,-347.50. Mr. Kurok supervised the job generally and he made the $3,000 payment in November, 1974. Mr. Sanders’s charge of $15 per hour was “a little under most of the bigger shops,” and, in his opinion, all his charges were fair and reasonable for the labor and services performed.

“Our agreement was orally, they were to pay me the first of every month, not to exceed my labor costs, and I received the [$3,000] and that was it.” Mr. Sanders quit the job April 4, 1975, because he had not received any additional payments. At that time there was work yet to do, but Mr. Kurok, when asked for payment, said he “wasn’t going to pay anymore, that’s all.” Mr. Sanders did his work in reliance on mechanic’s lien rights; that Mrs. DeWitt would pay.

In evidence at the instance of defendant were Exhibits 1, 2 and 2a, 5, 6 and 8.

Exhibit 1, written by Mr. Sanders, 10 — 7— 74, reads:

This agreement is between Kaybee Cons’t Company and R. E. Sanders Painters. To wit:
R. E. Sanders Painters agree to remove old, loose and rough paint from house located at 1500 North Liberty Street, In-dep., Mo., to a firm paintable base that is smooth.
All the above mentioned work shall be done to exterior trim of aforementioned house.
The cost of aforementioned work shall be ($7500.00) Seventy Five Hundred Dollars, payable to R. E. Sanders in monthly payments not to exceed actual labor costs.

Exhibits 2 and 2a, written by Mr. Sanders, 11 — 26—74, read:

This agreement is between Kaybee Cons’t Co. and R. E. Sanders.
R. E. Sanders agrees to paint all exteri- or wood trim and metal gutters on house located at 1500 North Liberty Street in Independence, Mo., with three coats of Pittsburg Paint. * * *
All work shall be done in a good substantial and workmanlike manner.
Kaybee Cons’t Co. agrees to pay to R. E. Sanders the sum of Seven Thousand Ten Dollars ($7010.00) in payment as follows;
Payments not to exceed cost of hourly wages shall be paid to R. E. Sanders upon request.
Upon completion of painting, balance of agreement becomes due.

Exhibit 5, written by Mr. Sanders, 11-7-74, reads:

Request for partial payment on contract for removing paint from wood trim on building at 1500 No. Liberty, Indep. Mo.
Contract $7500.00
Request 3000.00
Balance $4500.00

Exhibit 5 is accompanied by a receipt and release in acknowledgment of payment of $3,000.

Exhibit 6 was a submission to Kaybee by Mr. Sanders for “Labor for removing old paint from brick on building at 1500 No. Liberty St., Indep. Mo. * * * 82 hours at $15.00 * * * $1230.00.” Exhibit 6 bore a legend, “Received check # 6185 5/5/75 R. E. Sanders,” and had an attached receipt and release in the same amount for “Cleaning brick only.”

Exhibit 8 is a survey of Lots 52 and 53 Vaile Park, Independence, Missouri, showing that the Vaile Mansion lies wholly within Lot 53.

Rufus Burrus, II, secured completion of painting left undone when Mr. Sanders quit and paid Universal Construction Company $11,000.

Pertinent findings and conclusions follow:

The defendant Kaybee Construction Co., Inc., * * * had an agreement with Mary Mildred DeWitt to repair and remove and renovate building and improvements located at 1500 N. Liberty, Independence, Missouri.
Defendant Kaybee Construction Co., Inc., requested plaintiff to prepare the wood surfaces and paint them in the improvement known as the Vaile Mansion.
The reasonable value of the work services and materials furnished by plaintiff to defendant, Kaybee Construction Co., Inc., is $15,347.50.
The labor performed and materials furnished were on and went into the improvements located at 1500 North Liberty, Independence, Missouri, legally described as Lot 53, Vaile Park, a subdivision in Independence, Jackson County, Missouri.
Plaintiff shall have a default judgment against defendant Kaybee Construction Co., Inc., for $15,347.50, plus interest in the sum of $1,764.88, for a total of $17,-112.38.
Plaintiff is entitled to a mechanic’s lien against the said property in the said amount.

Judgment was for plaintiff against defendant Kaybee for $15,347.50 with interest from May 1, 1975, and it was charged as a lien against “Lot 53 Vaile Park, a subdivision in Independence, Jackson County, Missouri.”

Such findings and judgment are to be sustained unless there is no substantial evidence to support them, unless they are against the weight of the evidence, or unless they erroneously declare or apply the law. Rule 73.01, as construed, Murphy v. Carron, 536 S.W.2d 30, 32[l-3] (Mo. banc 1976).

Appellant contends (I) that Exhibit 1 was a valid written contract for preparation of surfaces for an agreed price of $7,500, and Exhibits 2 and 2a were a valid written contract for painting for an agreed price of $7,010, and plaintiff could not disregard such contracts and sue in quantum meruit; and (II) that he could not disregard their terms but could recover only the contract price less the value of work not performed at the time he quit work.

Appellant’s position depends on the presence of a binding express fixed price contract as she describes to the exclusion of any other agreement between the parties.

It is true, as argued by appellant, that signature is not always essential to binding force of an agreement. See,e. g., Mabry v. Swift & Co., 145 S.W.2d 163 (Mo.App.1940); Shortridge v. Ghio, 253 S.W.2d 838 (Mo.App.1952); Groh v. Calloway, 316 Mo. 989, 292 S.W. 65 (1927); Hahn v. Forest Hills Construction Co., 334 S.W.2d 383 (Mo.App.1960). Whether an unsigned writing constitutes a binding contract usually depends on the intention of the parties. The object of a signature is to show mutuality or assent which may be shown in other ways as, for example, by acts or conduct of the parties. 17 C.J.S., Contracts § 62, cited, Mabry v. Swift & Co., supra, 145 S.W.2d 1. c. 166. In this connection, a bid is no more than an offer to contract. A.A.B. Electric, Inc. v. Stevenson Public Sch. Dist. No. 303, 5 Wash.App. 887, 491 P.2d 684, 686 (1971).

The state of the evidence and appellant’s difficulty in making a binding contract out of unsigned Exhibits 1, 2, and 2a are aptly demonstrated by her recognition of “some disagreement and some confusion in the minds of witnesses as to some of the details of the negotiations” between the parties, and her concession “there was confusion as to whether the original contract was changed” at the request of Mr. Burrus, II.

Such conflicts in the evidence raised fact questions for the court which were resolved against a binding fixed or limited price contract in favor of payment of the reasonable value of services rendered, and the evidence does not dictate a contrary result.

Appellant contends (III) that plaintiff is not entitled to a mechanic’s lien because he failed to file a just and true account of his claim as required by Section 429.080, RSMo. 1969.

It has been determined under Points I and II that the court’s resolution of issues in favor of plaintiff’s claim of $15,347.50 was supported by evidence. The lien statement was for the same amount, and was thus a just and true account which fairly apprised the property owner and the public of the nature and amount of demand asserted as a lien as required by the statute. Hanenkamp v. Hagedorn, 110 S.W.2d 826, 829 (Mo.App.1937). See also Mississippi Woodworking Co. v. Maher, 273 S.W.2d 753, 755 (Mo.App.1954).

Appellant contends (IV) that plaintiff should be denied a lien because his statement sought a lien against both Lots 52 and 53, when he knew or should have known no part of the improvements were situate on Lot 52.

Public records would not ordinarily reveal whether the Vaile Mansion improvement was on one or the other or both of Lots 52 and 58. The survey in evidence clarified the matter and the court limited the lien to Lot 53 consistent with the applicable rule that if more land is described than is necessary the lienable part will be charged and judgment given accordingly. Kirkwood Mfg. & Supply Co. v. Sunkel, 148 Mo.App. 136, 128 S.W. 258 (1910); Oster v. Rabeneau, 46 Mo. 595 (1870).

Appellant contends (V) that the judgment is inconsistent with the finding that reasonable value was $15,347.50, and the court rendered judgment for that amount without allowance of the $3,000 payment admittedly received by plaintiff.

The judgment was consistent with plaintiff’s evidence and lien account, both of which showed credit of the $3,000 payment.

Judgment affirmed.

All concur.

      . Rufus Burrus, II, son of counsel for defendant, a realtor in Independence.


author: PER CURIAM:

text:
    Johnnie STERLING, Appellant, v. STATE of Missouri, Respondent.
    No. 29993.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1979.
    Robert N. Adams, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., WELBORN, Special Judge.
   PER CURIAM:

Appeal from denial of relief, without a hearing, in proceeding under Rule 27.26.

In June, 1974, Johnnie Sterling was charged by a three-count indictment in the Jackson County Circuit Court with rape, robbery in the first degree and assault with intent to do great bodily harm with malice aforethought. Upon jury-waived trial, the state elected to proceed on the assault charge. The defendant was found guilty of that offense and he was sentenced to 30 years’ imprisonment. The judgment was affirmed on appeal. State v. Sterling, 536 S.W.2d 843 (Mo.App.1976).

On November 14, 1977, Sterling filed a pro se motion under Rule 27.26 to set aside the judgment. The respondent has fairly summarized the .grounds of the motion as follow:

“ * * * In his motion, the appellant raised * * * four grounds for relief. Under ground (a) he argued that he had received ineffective assistance of counsel. In support of that allegation, the appellant alleged that he had been ‘pressured and tricked’ by his attorney into waiving his right to a trial by jury. He also alleged that his attorney made no objections ‘during the important course of the trial’ and that he ‘failed to preserve for review favorable court errors or even raise any plain court errors pursuant to Rules 27.04 and 27.20 V.A.M.R.’

“Under ground (b) the appellant alleged that he suffered a ‘Violation of Rights’ and was ‘Denied Due Process of the Law of the U.S. Constitution.’ In support of this allegation, the appellant alleged that he was placed in double jeopardy when the State charged him with three offenses under three separate counts ‘when really only one conviction could have been had.’

“The appellant’s ground (c) read in its entirety: ‘(510.030 L.1943 p. 353 3115, 1951) “GRANTING OF NEW TRIAL”.’ Under this ground, the appellant cited cases dealing with the suppression of favorable evidence, but did not allege or suggest what evidence, if any, the State had suppressed.

“Finally, under ground (d) the appellant attacked the constitutionality of ‘[§§] 159.-180 [559.180] and 156.150 [556.150](1) and (2).’ As ‘facts’ supporting this allegation, the appellant referred the trial court to the pro se briefs filed with this Court on direct appeal.”

On November 23, 1977, the motion was denied without a hearing. The trial court made extensive findings and conclusions, relying to a large extent upon the statements of the appellant, made under oath at the trial, in support of his request for waiver of jury trial.

On this appeal, a brief has been filed by counsel appointed for the purpose by the trial court. Appellant has also filed a pro se brief.

The brief of appellant’s appointed counsel is limited to the inadequate assistance of counsel issue. However, it in no manner addresses the question of error on the part of the trial court in its findings and conclusions. The brief sets forth some well-established general principles and then simply reiterates the matters enumerated in the motion as evidencing inadequate assistance in this case. Such procedure in nowise demonstrates where the trial court erred and can afford no basis for relief in this court.

Appellant’s pro se brief is wholly lacking in compliance with Rule 84.04. It purports to attack the constitutionality of Sections 559.180 and 556.150, RSMo 1969, but offers neither authority nor argument which would support that result. He asserts that the indictment against him was “faulted” because it contained three separate offenses on which only one conviction could be had. The joinder of offenses was authorized under Rule 24.04. The ultimate answer to the complaint, however, is that appellant was in fact convicted of only one offense.

Appellant has filed a supplemental brief, prepared with the assistance of an inmate denominated “Law Clerk” for appellant. The gravamen of the complaint of that document is the alleged failure on the part of the trial court to make findings of fact and conclusions of law on the issues purported to have been raised by the 27.26 motion. The supplemental brief ignores the record showing that the trial court did make findings of fact and conclusions of law on the issues before it. This is not a case in which the court merely stated that the files and records conclusively show that the appellant is entitled to no relief and cases such as Gerberding v. State, 433 S.W.2d 820, 824[5] (Mo.1968), and Keith v. State, 511 S.W.2d 896 (Mo.App.1974), cited by appellant, are not here in point. As is the case with the brief filed by appointed counsel, no issue is taken with the findings made and no basis for finding of error on the part of the trial court has been shown.

No reason having been demonstrated for finding the action of the trial court erroneous and the. nonretroactive rule of Fields v. State, 572 S.W.2d 477 (Mo. banc 1978), being inapplicable to this case, the judgment must be affirmed.

Judgment affirmed.

All concur.


author: TURNAGE, Judge.

text:
    Allen TODD, Appellant, v. STATE of Missouri, Respondent.
    No. 30125.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1979.
    Application to Transfer Denied May 17, 1979.
    Clifford A. Cohen, Public Defender, Kevin R. Locke, Lee N. Nation, Asst. Public Defenders, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Allen Todd appeals the denial of his 27.26 motion without an evidentiary hearing. Affirmed.

Todd was convicted of robbery in the first degree and on appeal that conviction was affirmed. State v. Todd, 537 S.W.2d 865 (Mo.App.1976). Todd then filed this motion for post-conviction relief, alleging he was deprived of effective assistance of counsel because his counsel “failed to call movant’s witnesses that would have proven movant was at work at Butler’s Steel Company, Kansas City, Missouri, on the morning, and at the time of the robbery at issue herein . . . .” Todd was represented on this motion first by. appointed counsel and later by retained counsel. The motion was filed on August 13, 1976, and the court took up the same for final ruling on December 21, 1977. The court noted that after appointed counsel entered the case a motion to disqualify the original judge was filed. From that action on August 31, 1977, to December 21, the court found no action had been taken by Todd or his attorneys concerning the motion. After making findings of fact on most of the matters raised in the motion, the court stated that the remaining allegations were purely conclusionary and did not require a hearing. The point urged on appeal was within those allegations found to be conclusions.

On this appeal Todd contends he was entitled to a hearing because the allegations concerning ineffective assistance of counsel were not conclusively resolved in the files and records of the case. In the argument portion of his brief, Todd asserts that the counsel at trial was ineffective because he did not call Todd’s witnesses who would have proven Todd was at work at the time of the robbery. Todd contends this assertion shows he is entitled to relief because it alleges the failure of his attorney to investigate and present his defense of alibi.

To be entitled to an evidentiary hearing, the motion is required to set forth facts sufficient to support the claim for relief. Charles v. State, 570 S.W.2d 700, 702[2, 3] (Mo.App.1978). See also Haliburton v. State, 546 S.W.2d 771, 773[1] (Mo.App.1977). The allegation that trial counsel failed to call witnesses who would have proven Todd was at work does not state facts which would entitle Todd to either an evidentiary hearing or relief. His allegation completely fails to plead facts as to the identities or any type of descriptions to demonstrate the existence of the witnesses who would supposedly testify as to an alibi; rather, he simply assumes the existence of such witnesses. Furthermore, and probably more serious, Todd failed to allege anywhere in his motion that he ever informed counsel of the existence of any alibi witnesses and the testimony they would give, nor was the motion amended in any respect during the sixteen months the motion was pending while two attorneys represented Todd on this motion. In addition, the motion fails to allege facts to show the source of knowledge of the witnesses.

Because the motion failed to state facts sufficient to support a claim for relief, the court was correct in denying the same without a hearing. Charles v. State, supra.

Fields v. State, 572 S.W.2d 477 (Mo. banc 1978) does not affect this case because that case noted at 483[4]: “Even when a change is made effective prospectively only, as this rule change is, . .” Thus, Fields is not to be applied to cases decided in the trial court prior to Fields. See also Turnbough v. State, 574 S.W.2d 400, 404, n. 5. This case was decided by the trial court almost a year prior to Fields.

The judgment is affirmed.

All concur.


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Donald WINTERS, Appellant.
    No. 39904.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 27, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 1979.
    Application to Transfer Denied May 17, 1979.

      George D. Pittman, Jr., Clayton, Robert C. Babione, Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Second degree murder.

Defendant was convicted by a jury of second degree murder. He was given seventeen years under the Second Offender Act.

Defendant complains that the state did not properly identify him as the person who had entered a guilty plea to second degree burglary so as to invoke the provisions of the Second Offender Act. We disagree.

The record reveals that the name of defendant, Donald Winters, was identical to the name of the previously convicted felon. The record on the prior offense showed that Donald Winters entered a plea of guilty on May 15,1975 to second degree burglary. A certified serial record transcript showed that seven days later he was imprisoned, first discharged on parole on September 29, 1975, and was finally discharged in June, 1976. The trial court found that all elements necessary to invoke the Second Offender Act were present. It found beyond a reasonable doubt that defendant, Donald Winters, was sufficiently identified as a prior offender.

In proving a prior conviction, the sameness of the name of the defendant with the name of the person described in the official record is prima facie sufficient to show that the defendant is the same person. The defendant offered no identification evidence. There was nothing in the record to support his claim of insufficient identification. State v. Shumate, 516 S.W.2d 297, 300 (Mo.App.1974); State v. Cook, 463 S.W.2d 863, 868 (Mo.1971).

Defendant contends that the court erred in giving MAI-CR 6.06 in that the pertinent part of the pattern instruction provides: “Second, that the defendant intended to (take the life of) (cause serious bodily harm to) [name of victim ]”; whereas the court gave the following pertinent part: “Second, that the defendant intended to take the life of Paul Boyer or to cause serious bodily harm to Paul Boyer.” Defendant says that this instruction allows the jury to speculate that the defendant intended to take the life of, or cause serious bodily harm to, the victim. He says this improperly permits conviction upon alternate theories. We disagree.

Instructions are statements of the law applicable to the facts. It is the duty of the court to instruct the jury directly and precisely on the law of the case, even though the jury is to determine the facts and apply them to the law as instructed. State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22, 28 (1936).

What is the law of the case? State v. Cook, 557 S.W.2d 484, 487 (Mo.App.1977) confirms “[a]n intent to kill or to cause serious bodily harm is an essential element of murder in the second degree.” The questioned instruction did precisely that.

The Notes on Use advises:

“As to paragraph Second, it is possible that death occurred where the defendant intended only to do serious bodily harm and did not intend to kill. The offense would, nevertheless, be conventional second degree murder. Since an intent to do serious bodily harm will always be present where there is an intent to kill, if there is any question as to which intent existed the better course would be to submit only the intent to do serious bodily harm.”

Accordingly, the submission of an intent to kill or intent to do serious bodily harm is not error where there is evidence of an intent to kill. If the state wants to take on this additional burden, there can be no error to the defendant.

Defendant then says that the evidence was not sufficient to prove that he intended to take the life of the victim. As stated above, if he intended to take the victim’s life, he intended serious bodily harm. The evidence, and the reasonable inferences to be drawn therefrom, must be considered in the light most favorable to the state. State v. Woolford, 545 S.W.2d 367, 371 (Mo.App.1976). The scope of review extends only to a determination of whether there is sufficient substantial evidence to support the verdict. State v. Sherrill, 496 S.W.2d 321, 323 (Mo.App.1973).

There need not be direct evidence of intent to kill. It can be inferred from the circumstances surrounding a death. In State v. Woolford, supra at 371, the court stated:

“In determining intent, the jury can take into consideration the nature of the weapon used, the manner of using it, the results of its use and all of the related circumstances.”

The facts show that defendant went to the victim’s house on the night of the shooting to retrieve a gun he had left two weeks earlier as security for a debt of $35.00. Defendant knew that he did not have the money to repay the victim. He also knew that the victim was considering selling the gun. On arrival, defendant asked about his gun. The victim retrieved it and laid it on a table. The victim inquired about his money. Defendant picked up the gun. He replied that he didn’t have the money but would take the gun, sell it, and bring him the money.

The victim reached for the gun and was shot twice. He was shot in the chest and in the face. Defendant fled from the scene and returned home. When the police came after the defendant he fled and stayed away several days. Before dying, the victim told his neighbor and the police that defendant had shot him. We hold such facts to be substantial evidence that defendant intended to kill the victim.

Defendant’s final point that “the Court failed to instruct the jury as to penalty as prescribed by MAI-CR 6.06” is without merit. For the reason the Second Offender Act was applicable to this ease, the trial judge, rather than the jury, properly determined the punishment. Turnbough v. State, 544 S.W.2d 894, 895 (Mo.App.1976); see also, MAI-CR 2.04, Special Note 3.

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: REINHARD, Presiding Judge.

text:
    David K. BROWN, Plaintiff-Appellant, v. Alfred H. ALBERDA et al., Defendants-Respondents.
    No. 39741.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 27, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 1979.
    Application to Transfer Denied May 17, 1979.

      David M. Johnson, Hayes & Heisler, Clayton, for plaintiff-appellant.
    W. Scott Pollard, Florissant, for defendants-respondents.
   REINHARD, Presiding Judge.

Appellant David K. Brown appeals from an order of the circuit court affirming the action of the City of Dellwood Board of Alderman dismissing appellant from his position as a police officer in the City of Dellwood.

On Thursday, September 2, 1976, Lieutenant Cenatiempo of the Dellwood Police Department authorized a change in the work schedule for the police department, the effect of said change being to take Officer Brown off his regular shift and place him on the 11:00 p. m. to 7:00 a. m. shift for the three week period beginning September 6. Because Officer Brown was off duty until Saturday, Lieutenant Cena-tiempo left a note in appellant’s disbursement basket after failing to reach him at home.

For a variety of reasons, and despite several attempts by Officer Brown, Officer Brown and Lt. Cenatiempo failed to talk directly to each other until the following Monday. However, on Saturday, September 4, upon learning from a Sergeant Ames that appellant was displeased, the lieutenant had left word that appellant was not to contact the Chief of Police until he had contacted the lieutenant first. On Sunday, September 5, Officer Brown had left a note at the lieutenant’s home which criticized the schedule change and included the following language:

I think that you are giving me the biggest runaround and that if you don’t have the nerve to see me in person you are not much of a leader and you deserve no respect from me. If you wonder why we have problems with the morale and the operation of the department your actions in matters such as this are one good reason.

The letter closed with a request for a meeting with Lieutenant Cenatiempo and the Chief of Police.

At approximately 12:15 p. m. on Monday, Officer Brown took his case to the streets, setting up an informational picket in front of City Hall. Lt. Cenatiempo asked appellant to come into his office, and during an informal meeting there, appellant called the lieutenant a liar. Appellant returned to his picketing while Lt. Cenatiempo informed Police Chief Alberda of the situation. A meeting was arranged which appellant, Lt. Cenatiempo, Police Chief Alberda and Dell-wood Alderman Edward Kiely attended. At the meeting, both appellant and Lt. Cen-atiempo gave their views of the situation. After an exchange between appellant and Chief Alberda in which the former claimed violation of his constitutional rights, Chief Alberda informed appellant that he was fired and suspended from the department.

On September 12, 1976, a hearing was held before the Mayor of Dellwood and the Board of Alderman. Lt. Cenatiempo and Chief Alberda testified, and the City presented a letter from appellant’s personnel file showing that appellant was on probation at the time of the incident. After the hearing, the Board, following the recommendation of the Chief of Police, terminated appellant’s position with the police department. No findings of fact were prepared at this time.

On October 5,1976, appellant filed a petition for review of the Board’s decision pursuant to § 536.110 RSMo 1969, alleging that his dismissal resulted from his picketing, that his informational picketing had sought only to protest the improper denial of access to departmental grievance procedure, and that said dismissal was capricious, arbitrary, unauthorized by law, an abuse of discretion, and in violation of 1st, 9th and 14th Amendments to the United States Constitution and Article I, §§ 2, 8 and 10 of the Missouri Constitution. On November 24, 1976, the City of Dellwood filed findings of fact and conclusions of law with the circuit court. The evidence shows that the Board of Alderman did not discuss or prepare the findings and conclusions until November 22, 1976. Appellant filed a motion to strike the findings of fact and conclusions of law, because they were not prepared in accordance with § 536.090. The court denied the motion and, on June 13, 1977, upheld the action of the Board.

Because the late findings were not prepared with the Board’s decision, the court should have granted appellant’s motion to strike and remanded the case to the Board of Alderman. See Stephen and Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798 (Mo.1973); Meadowbrook Country Club v. State Tax Commission, 538 S.W.2d 310 (Mo.1976).

However, where the circuit court considers the late findings of fact and conclusions of law, as was done here, Missouri U. Meth. Retirement Homes v. State Tax Commission, 522 S.W.2d 745 (Mo.1975), is authority for an appellate court’s refusal to reverse and remand. The court gave the following rationale at page 748:

The parties have briefed this case to this court on its merits, and ... no material prejudice to any party resulted from the failure of the Commission to file timely its findings of fact and conclusions of law. Also, it would be a useless and time consuming act for the Commission now to rewrite its “Decision” and attach to it a copy of the findings and conclusions previously made and file them with the Circuit Court of Lawrence County, and for the parties to again present their case to the circuit court. .

As in Missouri U. Meth. Retire. Homes, we exercise our discretion and rule on the merits.

Appellant contends that he was discharged because of his picketing, contending that he had a right to picket and any interference with that right was contrary “to the freedom of speech provisions of the United States Constitution.” It is true that the Chief of Police testified that he told the appellant that because he was a police officer he had “no civil rights,” a highly unusual position for an officer of the law to take. It is obvious that the Chief was incensed by the picketing, but the power to discharge was that of the Board of Aider-man and not the Chief. It is its action that we review. Our role is not to substitute our judgment for that of the Board but rather to determine whether the Board’s decision and findings were supported by competent and substantial evidence on the whole record. Lindsey v. Taylor, 541 S.W.2d 38, 39 (Mo.App.1976).

The Board found that appellant’s conduct in stating in his letter to Lt. Cena-tiempo that the lieutenant was not much of a leader and deserved no respect and also in calling the lieutenant a liar amounted to disrespect to a superior officer, insubordination and conduct unbecoming a police officer. This finding was amply supported by the evidence, and when coupled with the evidence of appellant’s probationary status at the time of the incident, provided sufficient grounds to justify the termination by the Board of Alderman. See Vorbeck v. McNeal, 560 S.W.2d 245, 253 (Mo.App.1977). There was no mention in the findings that the picketing was a basis for discharge.

As to the reference to picketing in the circuit court’s opinion affirming the Board, we note two considerations. First these remarks were expressly made “in passing” and were not stated by the circuit court as part of the basis for upholding the Board, especially in light of the Board’s failure to cite the picketing as a basis for dismissal. Secondly, even were the circuit court to have based its affirmance in part on the fact of appellant’s picketing before he talked with Alberda and Cenatiempo, the findings of the Board did not state such picketing to be grounds for its action. Therefore, at worst, the circuit court properly affirmed but for the wrong reasons. In such a circumstance, we may still affirm. Presented with the same record as the circuit court, we find substantial and competent evidence in the whole record to support the findings and decisions of the agency.

In conclusion, we again note that findings of fact and conclusions of law should be prepared at the time the administrative agency makes its decision, not at some later time when prompted by a petition for review. Therefore, we hold the effective date of appellant’s discharge to have been November 24, 1976, the date on which the findings of fact were filed with the court.

Affirmed.

CLEMENS and GUNN, JJ., concur.


author: FLANIGAN, Presiding Judge.

text:
    Ronald Clayton VAUGHAN, Appellant, v. STATE of Missouri, Respondent.
    No. 10797.
    Missouri Court of Appeals, Southern District, Division One.
    March 2, 1979.
    Motion for Rehearing or to Transfer Denied March 26, 1979.
    Application to Transfer Denied May 17, 1979.
    William D. Powell, Daniel, Clampett, Rit-tershouse, Dalton & Chaney, Springfield, for appellant.
    John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for respondent.
   FLANIGAN, Presiding Judge.

Movant Ronald Clayton Vaughan appeals from a denial after evidentiary hearing, of his Rule 27.26 motion to set aside a judgment and sentence for rape. The judgment was entered upon a plea of guilty and the punishment imposed was eight years’ imprisonment. The relief sought by the motion was the setting aside of the conviction and the withdrawal of the plea. Accordingly the motion is “a combined motion under Rules 27.25 and 27.26.” Bonner v. State, 535 S.W.2d 297, 298 (Mo.App.1976).

Movant’s first “point relied on” is that the trial court erred in finding that the plea of guilty was voluntary. The claimed factual basis for the alleged involuntariness will be discussed.

Although the motion contained several grounds for relief, only one of the grounds, that alleging that the plea of guilty was involuntarily made, has been carried forward in movant’s brief and it alone need be considered, the others having been abandoned. Herron v. State, 498 S.W.2d 530, 531[1] (Mo.1973). The “facts supporting” the allegation that the plea was involuntary are stated, in the motion, as follows: “Mov-ant’s pre-sentencing counsel convinced mov-ant that the court’s acceptance of the state’s recommended three-year sentence under a plea bargain was a virtual certainty.”

The evidence at the motion hearing showed that prior to the entry of the plea the prosecuting attorney had agreed with defense counsel that the state would recommend a punishment of three years’ imprisonment. The prosecutor did make that recommendation. The trial court found, and the record supports the finding, that prior to the entry of the plea movant was fully informed of the range of possible punishments and knew that the court was not bound by the prosecutor’s recommendation. It is true that the state’s evidence showed that defense counsel had informed movant that the court “normally would go along with the state’s recommendation,” but the attorney had also told movant that the prosecutor’s recommendation of three years “was never a certainty, only a recommendation — that the court had the last say and the court could sentence to a larger amount of time. I never promised movant that it would definitely be three years.”

Although movant and his counsel may have indulged in hopeful speculation that the judgment would be something less than the one actually imposed, there was no “specific assurance” emanating from defense counsel or from anyone else that a lesser punishment would be imposed. See State v. Rose, 440 S.W.2d 441, 445[5] (Mo.1969); Mick v. State, 487 S.W.2d 452, 454[1, 2] (Mo.1972); Abrams v. State, 521 S.W.2d 177, 180[4-7] (Mo.App.1975); Rogers v. State, 564 S.W.2d 576, 579 (Mo.App.1978). As stated in Abrams, “a disappointed hope of a lesser sentence than that actually received does not render a plea involuntary.” See also McMahon v. State, 569 S.W.2d 753, 758[4] (Mo. banc 1978).

At the time the instant plea was accepted, the failure of the trial court to follow the recommendation of the state did not constitute “manifest injustice,” where, as here, the defendant knew that the state's recommendation was not binding upon the court. State v. Jackson, 514 S.W.2d 638, 641 (Mo.App.1974). See also Huffman v. State, 499 S.W.2d 565, 568 (Mo.App.1973); Brown v. State, 485 S.W.2d 424 (Mo.1972).

Movant’s first point has no merit.

Movant’s second point has not been preserved for appellate review and need not be considered for the reason that it was not raised in the motion filed in the trial court and the issue was never presented to that court for determination. Johnson v. State, 561 S.W.2d 704, 706[5] (Mo.App.1978); Rancher v. State, 549 S.W.2d 146[1] (Mo.App.1977); Parton v. State, 545 S.W.2d 338, 341[1, 2] (Mo.App.1977); VanDyke v. State, 522 S.W.2d 101, 104[5] (Mo.App.1975).

The judgment is affirmed.

TITUS, J., and MOORE, KENNEDY, CAMPBELL and PYLE, Special Judges, concur.

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

      . In Schellert v. State, 569 S.W.2d 735 (Mo. banc 1978) the court said, at p. 739:
      “If the plea agreement contemplates the granting of sentence concessions by the trial judge, he should give the agreement due consideration, but notwithstanding its existence reach an independent decision on whether to grant sentence concessions. If the court rejects the plea agreement, either at the time of the plea proceedings or at the time of sentencing, the court shall, on the record, inform the parties of that fact, advise the defendant personally in open court, or on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity then to withdraw his plea, and advise the defendant that if he persists in his guilty plea, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.”
      In the case at bar the court, prior to accepting the plea of guilty, meticulously observed the requirements of Flood v. State, 476 S.W.2d 529, 535 (Mo.1972). In rejecting the prosecutor’s recommendation, however, the court did not afford movant the opportunity at that time to withdraw his plea. Schellert is of no aid to movant because Schellert, at p. 740, contains this statement: “This decision is to apply to the instant case and prospectively only.” Mov-ant’s plea was accepted prior to the date the opinion in Schellert was filed and, of course, prior to the date that opinion was published in the Southwestern Reporter. See Durham v. State, 571 S.W.2d 673, 676 (footnote 2) (Mo.App.1978).