author: PER CURIAM:

text:
    Ellen A. AVERSMAN, Appellant, v. Larry Wayne DANNER et al., Respondents.
    No. KCD 29131.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 26, 1979.
    Application to Transfer Denied April 10, 1979.
    George Lehnen, III, Richmond, for appellant.
    William Aull, Lexington, for respondents; Aull & Sherman, Lexington, of counsel.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   PER CURIAM:

Steven Aversman suffered fatal injuries in a vehicular accident August 15,1975. He was then 19 years of age. On September 2, 1975, appellant, Steven’s mother, commenced an action in the circuit court of Lafayette County under Section 537.080, RSMo 1969, for damages by reason of the alleged wrongful death of her son. At the time of his death, Steven was single and had never been married.

By motions filed thereafter, respondent, Leland Aversman, was appointed next friend for one Eric, a child born February 23, 1976, and was granted leave to intervene in the action for the purpose of asserting a further claim for the wrongful death of Steven Aversman. As a basis for such claim, it was alleged that Steven was the father of Eric, born to Judy Rogge Long, and that such child was by statute entitled to maintain the action. This appeal was lodged from the order of the trial court granting intervention.

Evidence offered at the hearing in support of and in opposition to the motion of respondent next friend for leave to intervene as well as the points briefed on appeal are essentially addressed to the factual question of paternity. The dispositive issue, however, is whether an appeal may be taken from an order sustaining an application to intervene. We conclude that the order entered below was not a final judgment reviewable on appeal and that this appeal must be dismissed as premature.

Entitlement to intervene and procedure therefor is provided by Rule 52.12. In the present case, by reason of the allegation of parentage, intervention of decedent’s child is of right and paragraph (a) of the rule is applicable. The right of appeal lies from denial of an application to intervene of right under Rule 52.12(a). City of St Louis v. Silk, 239 Mo.App. 757, 199 S.W.2d 23 (1947); State ex rel. Reser v. Martin, 576 S.W.2d 289, No. 60639 (Mo. banc 1978). This case, however, presents the question of entitlement to appeal from the order granting intervention.

Prior cases in this state have not addressed this question squarely although analogy necessarily is drawn from the well recognized proposition that appeal may be had only from a judgment which finally disposes of all issues raised by the pleadings and constitutes a final disposition of the cause. Bolin v. Farmers Alliance Mut. Ins. Co., 549 S.W.2d 886 (Mo. banc 1977). Intervention and addition or substitution of parties constitute a variant as in City of St. Louis v. Silk (supra), and Bruun v. Katz Drug Co., Inc., 211 S.W.2d 918 (Mo.1948), only to the extent that denying access of the party to the forum by denying intervention finally disposes of the cause as to such party. Intervention permitted merely moves the cause forward on the merits with full right reserved at a future date for review on appeal. The decision to permit intervention is in fact interlocutory as any original party adversely affected may appeal a judgment, if any, whereby the inter-venor obtains recovery on the merits. 4 Am.Jur.2d Appeal and Error, § 94.

The appeal is dismissed.


source: Caselaw Access Project

author: WASSERSTROM, Judge.

license: Public Domain

text:
    Cornell T. BREWSTER, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29224.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 26, 1979.
    Application to Transfer Denied April 10, 1979.

      Edward P. Cleary, Marshall, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Defendant was convicted of first degree murder. This court affirmed that conviction on direct appeal in an opinion which sets forth the facts leading to and surrounding the homicide. State v. Brewster, 525 S.W.2d 427 (Mo.App.1975). Thereafter defendant filed a motion under Rule 27.26 to set aside the conviction. The trial court denied the motion, from which defendant appeals. We affirm.

In his brief, defendant raises ten points. The first nine of those relate to alleged ineffective assistance of counsel and all of those points will therefore be discussed together as one category under Section I of this opinion. Defendant’s remaining point challenges the sufficiency of the trial court’s findings of fact, and that point will be discussed under Section II of this opinion.

I.

Sufficiency of the Legal Representation

Defendant complains: (1) that his trial attorney failed to interview any witnesses prior to the day of trial; (2) that his attorney failed to timely subpoena witnesses; (3) that his attorney failed to learn the identity of witnesses who could have testified at the trial in addition to those who did appear on behalf of defendant; (4) that by reason of the foregoing, defendant was deprived of his right to testify by depriving him of corroborating witnesses; (5) that by reason of the foregoing, defendant was deprived of his defense of self-defense; (6) that his attorney failed to object to certain testimony by Deputy Sheriff Donley; (7) that his attorney failed to disqualify the prosecuting attorney because of an alleged personal interest in the proceedings by the prosecutor; (8) that his attorney failed to object to certain testimony by Sheriff Darnell; and (9) that his attorney failed to object to certain cross-examination of witness Ceola Jackson.

The first five of those complaints all revolve around the question of whether the defense trial counsel made sufficient investigation and evidentiary preparation, and those five points will therefore be discussed together. Defendant’s Points 6, 8 and 9 all concern failures to object and will be treated together. Point 7 raises a distinct issue which will be discussed separately by itself.

A. Sufficiency of Trial Preparation. A defendant must carry a heavy burden of proof when he seeks by a post-trial motion to set aside his conviction on the ground that he did not receive effective assistance of counsel. Aikens v. State, 549 S.W.2d 117 (Mo.App.1977); Eldridge v. State, No. 39657, decided by the St. Louis District of the Missouri Court of Appeals on December 19, 1978. Part of that heavy duty, when he alleges that his trial counsel should have conducted additional investigation and introduced additional evidence, is the_ obligation to show_that the further investigation and additional testimony would have been helpful to the defense. Curry v. State, 504 S.W.2d 97 (Mo.1974); Thomas v. State, 516 S.W.2d 761 (Mo.App. 1974); McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974). Where the additional evidence would have been merely cumulative of uncontroverted evidence which was in fact introduced at the trial and the lack of the additional evidence was not prejudicial to the defendant, he is not entitled to relief under Rule 27.26. Chambers v. State, 554 S.W.2d 112 (Mo.App.1977).

The trial court in this case found that defendant failed to carry the heavy burden of proof referred to. (With respect to the form of that finding, see the discussion under Section II below). A review of the record as a whole justifies the finding.

B. The Failures to Object to Testimony. A mere failure to object to testimony does not establish that trial counsel was ineffective. The failure to object must go beyond mere error or mistake in trial strategy or judgment and must be of a character to result in substantial deprivation of defendant's right to a fair trial. McConnell v. State, 530 S.W.2d 43 (Mo.App.1975); Nelson v. State, 537 S.W.2d 689 (Mo.App.1976); State v. Harris, 425 S.W.2d 148 (Mo.1968); Brown v. State, 512 S.W.2d 404 (Mo.App. 1974).

The trial court here found that there had been no such denial to defendant of a fair trial. A review of the record as a whole justifies that finding.

C. Failure to Request Disqualification of the Prosecuting Attorney. Under this subpoint, defendant argues that he had reported to the prosecuting attorney that deceased had threatened him and had damaged his automobile, but that the prosecutor took no action with respect to that information. Defendant now argues that the inaction by the prosecutor was a violation of his duty to investigate and prosecute, that this gave the prosecuting attorney a personal interest in the proceedings against defendant, and that the prosecuting attorney should therefore have been disqualified.

There was no evidence that defendant had ever signed or formally filed any complaint with respect to the threat and car damage, which would have been a requisite to trigger any duty by the prosecutor to go forward. Moreover, a mere failure by the prosecuting attorney to investigate would not, without more, create in him such a personal interest as to require his disqualification. No authority is cited by defendant for his contention and independent investigation discloses none. Disqualification of a prosecutor is called for only when he has a personal interest of a nature which might preclude his according the defendant the fair treatment to which he is entitled. State v. Harris, 477 S.W.2d 42, 44 (Mo.1972), and authorities there cited. However, the facts here claimed to create such a personal interest are in no way analogous to the situations in the cases where proper cause for disqualification was found. The trial court here was justified in his ruling that there was “no legal reason why he [the prosecuting attorney] should have to be disqualified in the prosecution of this case.”

Summary. The judgment of the trial court is based on findings of fact which are not clearly erroneous. Any further discussion of the facts and law pertaining to the alleged ineffective assistance of counsel would have no precedential value. Defendant’s Points numbers 1 through 9, both inclusive, are therefore ruled against him under Rule 84.16(b).

II.

Sufficiency of the Findings

Defendant under this heading makes reference to the court’s oral findings concerning three areas of dispute. The first area has to do with the charge originally made by defendant (but abandoned on this appeal) to the effect that blacks had been systematically excluded from jury service. The trial court specifically found on that issue as follows: “Now we have absolutely no evidence of that and of course the Court will have to find that issue against this Defendant.” That finding was clearly sufficient.

The next finding mentioned by defendant had to do with the matter of whether defense counsel should have tried to secure disqualification of the prosecuting attorney. Defendant complains the trial court ruled on that issue “summarily.” That issue has already been discussed in Section I, C above. The court’s finding and conclusion on that point was clearly sufficient.

Defendant reserves his main fire, however, for a complaint that the trial court did not adequately answer his contention that his trial attorney had failed to adequately investigate and call additional witnesses. That was the main complaint made by defendant at the 27.26 hearing, that was the issue to which the majority of the testimony at the 27.26 hearing was directed, and that is the issue as to which defendant now mainly argues that the trial court made insufficient findings.

With respect to this matter, the trial court found as follows: “Now I have listened to all of these witnesses here today and I don’t think there is one single bit of evidence that was offered here that isn’t in this record right here (indicating). Now, of course, there must be some showing that he was hurt by alleged malfunction or non-function of his attorneys. Now I haven’t heard any evidence here today that would indicate that there was anything different than the evidence and the facts that were presented in the issues in this lawsuit and the jury listened to and made up their minds.”

Defendant attacks those findings on the ground that the trial court made no finding as to the evidence presented at the 27.26 hearing and had reference only to the transcript of what happened. at the original trial. In this respect defendant’s brief states: “It should be self evident that the evidence presented on the 27.26 Motion could not have been in the Transcript of the original trial. * * * The Court did not make any ruling on the issue of ineffective Counsel that was based upon the evidence before the Court in the 27.26 Hearing.”

In making that argument, defendant has wholly misconstrued the trial court’s ruling. The trial court was in no way saying that there were no new witnesses at the 27.26 hearing who had not testified at the original trial. Rather, the trial court was saying very clearly that the additional testimony given by these additional witnesses was not of such character or of sufficient importance so that the lack thereof at the original trial could have resulted in any prejudice to the defendant.

The ultimate issue before the trial court was whether the acts of defendant’s trial counsel had been such as to result m a substantial deprivation to him of the right to a fair trial. Walker v. State, 567 S.W.2d 398 (Mo.App.1978). The trial court here did make a finding on the ultimate issue as follows: “I believe anyone could read this transcript and agree that they [defense trial counsel] performed well here in this case. I felt at the time of the conclusion of the trial and at the time of the Motion for a new trial that Mr. Brewster had received a fair and decent and just trial and the matter was up to the jury and the jury found against him.” The findings in total context were sufficient. Serna v. State, 546 S.W.2d 788 (Mo.App.1977); Warren v. State, 501 S.W.2d 173 (Mo.1973).

Affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    FARMER’S BANK OF ANTONIA, Appellant, v. William R. KOSTMAN, Commissioner of Finance, and First Missouri Bank of Jefferson County, Respondents, John C. Ashcroft, Attorney General, State of Missouri, Intervenor-Respondent.
    No. KCD 29514.
    Missouri Court of Appeals, Kansas City District.
    Jan. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 26, 1979.
    Application to Transfer Denied April 10, 1979.

      Harold I. Elbert, Kohn, Shands, Elbert, Gianoulakis & Giljum, St. Louis, for appellant.
    Irven L. Friedhoff, Jefferson City, for respondent, Kostman.
    Hawkins, Brydon & Swearengen, P. C. by James C. Swearengen, Jefferson City, for respondent First Missouri Bank of Jefferson Co.
    Charles A. Blaekmar, Asst. Atty. Gen., Jefferson City, for intervenor-respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

The plaintiff Farmer’s Bank of Antonia brought an action against Kostman [Director of Finance] and the First Missouri Bank of Jefferson County for declaratory judgment that the Director unlawfully issued certificate of authority to the First Missouri Bank to maintain a facility within the Town of Barnhart and to enjoin the First Missouri Bank from such an operation. The defendants Director and First Missouri Bank moved, and the court granted, dismissal on the ground that the petition alleged no justiciable controversy for declaratory judgment and no aggrievement by the administrative decision to license the bank facility of any legal right, duty or privilege of the Farmer’s Bank so that plaintiff was without status under § 536.150, RSMo 1969 of the Administrative Procedure and Review Act [Rule 100.08] for judicial review of the Director’s order.

The certificate of authority issued by the Director under color of § 362.108, RSMo Supp.1976, on the application of the First Missouri Bank of Arnold, Jefferson County, Missouri, for license to maintain and operate a drive-in facility in the Town of Barn-hart in Jefferson County to be located on Highway M, between Missouri Highway 61 — 67 and Interstate 55. The statute under which the certificate issued [§ 362.108] provides:

[A]ny bank with its main banking house in a county of the second, third or fourth class may, with the approval of the director of finance, establish, maintain, and operate one separate facility in that county in an incorporated or unincorporated town with a population of not more than one thousand five hundred and fifty which does not have banking services and which is not more than fifteen miles from the main office of the bank. Loans may be made at any facility operated under the provisions of this section or under the provisions of section 362.107. [Emphasis added.]

The interest alleged by the petition for review of the administrative action is that Farmers Bank operates a bank facility at Imperial in Jefferson County under an authority granted by the Director of Finance located on the west side of Interstate 55, a mile and one-half from the site of the proposed First Missouri Bank facility on the east side of Interstate 55 in the Town of Barnhart also in Jefferson County, a town and area already sufficiently served by convenient bank facilities, and within such proximity to the Farmers Bank establishment as to adversely affect its business and profits.

The substantive contentions pleaded against the administrative decision allege irregular procedure in that the grant of certificate to the First Missouri Bank facility was without notice or hearing or opportunity for objection by other affected banks in the area and noncompliance with § 362.-108 in that the site of the proposed facility is not within any of the recorded plats of the Town of Barnhart, but that if within the bournes of Barnhart, the population of that town exceeds one thousand five hundred and fifty people, and so not entitled to the operation of § 362.108. The petition alleges that the order by the Director to grant license further infracts § 362.108 in that the Town of Barnhart, even if otherwise qualified by population, already has banking services — from the proximate Farmers Bank facility in Antonia.

The judgment of dismissal rests on the express premise that the status of competitor, merely, does not accord a bank judicial review of a Director of Finance grant of certificate to another bank to operate a facility because, cognately, such an administrative decision does not [within the terminology of § 536.150] determine any legal right, duty or privilege of the competitor. The kinship between status and interest is ineluctable: the question of status for access to the courts for judicial action or review of an administrative decision relates, not to the merits of the subject matter, but to a justiciable controversy- — the authority of the court to entertain the action in the first instance. State ex rel. Rouveyrol v. Donnelly, 285 S.W.2d 669, 678[23] (Mo.banc 1956); State ex rel. Schneider v. City of Town and Country, 575 S.W.2d 904 (Mo. App.K.C.D. 29,932, 1978). The question of legal interest, rather, relates to the merits of the action — whether the concern sought to be protected by the party falls arguably within the zone of interest created by statute or other source of law. Association of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Status to sue or to contest administrative action, nevertheless, is determined by an amalgam of factors, among them, the extent of interest of the party in the subject matter and the terms of the statute which creates the right or the method of review. State ex rel. Rouveyrol, supra, l.c. 676[15-17]; Schneider v. City of Town and Country, supra. Thus, whether the Farmers Bank petition pleads status for judicial review depends upon whether a competitor bank has an interest the law will protect against the administrative grant of license to another bank for a facility within the same trade area. The judgment of dismissal ruled the question adversely to the petition as a matter of law. That adjudication was reached, however, before Bank of Belton v. State Banking Board, 554 S.W.2d 451 (Mo.App.1977) and Bank of Crestwood v. State Banking Board, 554 S.W.2d 519 (Mo.App.1977) which hold [Bank of Belton, supra, l.c. 453[2]]:

The economic interest [a competitor bank] seeks to protect against the administrative order which allows [another bank] facility in competition falls within the zone of interests protected by Article 5, § 22 of the Missouri Constitution .

Also, Bank of Crestwood, supra, l.c. 521[2, 3].

The plaintiff Farmers Bank pleads an equivalent private right affected by the grant of the facility to competitor First Missouri Bank and so — contrary to the judgment — stands equally entitled for direct review to the courts under Article V, § 22 by the method of the Administrative Procedure and Review Act. The defendants Director and First Missouri Bank contend, nonetheless, that Bank of Belton and Bank of Crestwood do not govern because the grants of facility in those cases were under the authority of § 362.107 which, by terms, accords administrative review to the Banking Board from the decision of the Director, and thus come under the Administrative Procedure and Review Act provision for review of a contested case [§ 536.100] whereas § 362.108 describes a noncontested case. The defendants mean by that argument, variously, that the aggrievement which accords status for judicial review of a contested case under § 536.100 imports much more than merely determination of a legal right, duty or privilege by administrative decision which describes the interests subject to review for a noncontested case under § 536.150. The defendants mean also by that argument that a competitor bank is owed no “legal right, duty or privilege to be free of competition” and so § 536.150 does not encompass such a claim of injury.

As prelude, we iterate that the law accords status to a competitor bank for judicial review of an administrative grant of charter or facility to another bank within the trade area, not to protect monopoly, but to keep the system of banks within an equipoise of competition and regulation and so secure the public against the economic havoc of bank failure. Central Bank of Clayton v. State Banking Board of Missouri, 509 S.W.2d 175, 182[3] (Mo.App.1974); Bank of Belton, supra, l.c. 456[4]; Bank of Crestwood, supra, l.c. 521[2, 3]; Bank Charter, Branching, Holding Company and Merger Laws: Competition Frustrated, 71 Yale L.J. 502 (1962).

The basic contention of defendants Director and First Missouri Bank assumes the fallacy that the § 536.100 procedure for a contested case protects an inherently higher order of private right than does the § 536.-150 procedure for a noncontested case — so that the accord of judicial review to a competitor bank by one statute which renders the grant of facility a contested case [§ 362.107] does not imply judicial review for a competitor bank where another statute renders that agency decision a noncon-tested case [§ 362.108].

The constitutional law of Missouri mandates that “[a]ll final decisions . of any administrative . . . body . which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law . . . Mo.Const. Art. V, § 22 (1945). The Administrative Procedure and Review Act supplements this organic law without distinction as to the private right affected but only as to the scope of review. State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 357[2—4] (Mo.banc 1958). Where a hearing is required by law the agency decision becomes a contested case and judicial review merely determines whether, at the least, the decision was on competent and substantial evidence on the whole record. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647, 649 (banc 1946). Where a hearing is not required by law, the agency decision becomes noncontested and judicial review determines — post hoc — the facts and whether the decision was according to law. State ex rel. Walmar Investment Company v. Mueller, 512 S.W.2d 180, 182[1] (Mo.App. 1974). The entire scheme of the Administrative Procedure and Review Act for judicial review — whether of contested or non-contested case — subserves the command of Article V, § 22 of the Missouri Constitution that a final decision of an administrative body which affects a private right shall be subject to review by the courts. In re St. Joseph Lead Company, 352 S.W.2d 656, 659[3] (Mo.1962). And, in either case, whether contested or noncontested, the compass of the private right protected by the Administrative Procedure and Review Act is an affected legal right, duty or privilege. Thus, a bank is as grievously affected by a grant of facility to a competitor within the same trade area by an administrative decision in a noncontested case as in a contested case, and in either event has status for judicial review under the Administrative Procedure and Review Act.

The defendant First Missouri Bank and intervenor Attorney General [but not the defendant Director] argue, however, that the contention of aggrievement by Farmers Bank is not yet in posture for judicial review for failure to exhaust administrative remedies, so that the cause must be dismissed for want of appellate jurisdiction over the subject matter. This argument assumes that § 362.108 describes a contested case governed by § 536.100 of the Administrative Procedure and Review Act, a procedure which accords judicial review upon two conditions: aggrievement by a final administrative decision and exhaustion of the administrative remedies provided by law. See: Kostman v. Pine Lawn Bank and Trust Co., 540 S.W.2d 72, 75 (Mo.banc 1976). This argument assumes also that the § 362.108 procedure for bank facility must be read together with the provision for administrative appeal to the State Banking Board for an aggrievement by a decision of the Director for a bank facility under § 362.107 [Bank of Belton, supra, l.c. 456]— and that it is the failure of review to the State Banking Board which leaves the contention of Farmers Bank unready for judicial review.

The terms of § 362.108 make no express mention of administrative review to an applicant or other person in interest from the grant or denial of a bank facility. The Director understands this as a discretion to act at will without duty to consider the interest of a competitor bank or to account for the decision to either an administrative or judicial review. This premise contradicts the public policy of a regulated scheme for competition which girds the banking system, an end which requires that an application for bank facility under § 362.107 be considered according to the needs and welfare of the community, the financial strength of the parent bank, and whether other banks will be seriously injured by the competition. Bank of Belton, supra, l.c. 456[4], Bank of Crestwood, supra, l.c. 521[2, 3].

The provision for bank facility under § 362.108 subserves the same public policy as does § 362.107. Their purposes are not disparate, but congruent and cumulative. Their purposes, moreover, coincide with the provisions of law that the charter of new banks or relocations shall be only on determinations that the convenience and needs of the community warrant the bank presence, that business suffices for the solvency of the new bank or relocation and the solvency of existent banks in the area are not threatened [§§ 362.030, 362.040 and 362.-325], and that a party adversely affected by the decision of the Director shall have administrative review by the State Banking Board.

The decision of the Director to grant or deny a bank charter, relocation or facility [under § 362.107] is in each case, in the first instance, ex parte and only on complaint of an interested party does the administrative process provide for an adversarial presentation of evidence. In the case of dispute, the lawmakers have constituted the State Banking Board as the arbiter of the merits and as the conservator of the public interest, with the power to override the Director and bind him to that decision, subject only to judicial review. Section 361.095; Marsh-field Community Bank v. State Banking Board, 496 S.W.2d 17, 21[2-4] (Mo.App. 1973); Kostman v. Pine Lawn Bank and Trust Company, supra, l.c. 77. The procedures for a facility under § 362.108, however, mention neither the ex parte examination antecedent to the grant or denial by the Director of a charter, relocation or facility under § 362.107, nor the administrative appeal to the State Banking Board of the ex parte decision. It is the position of the Director that these lapses are expressions of legislative intention that the decision for a facility under § 362.108 are at will [a contention already dispelled], but if subject to judicial review, then from the final decision of the Director and not of the State Banking Board.

These banking laws, however, do not stand as disparate enactments, but in pari materia, and § 362.108 can no more be understood outside the matrix of the statutory procedures for the grant of charter, relocation, or facility under § 362.107 and final decision on those administrative actions by the State Banking Board, than § 362.107 can be understood on its own terms. Bank of Belton, supra, l.c. 455 et seq. In terms of legislative intent, we assume that at the enactment of a provision the lawmaker is aware of statutes previously enacted on the same subject matter and intends that they be construed together. A provision in one act omitted in another act on the same subject matter, when not inconsistent in purpose, will be applied under the subsequent enactment in a manner which maintains the integrity of both. State ex rel. Peck Co. v. Brown, 340 Mo. 1189, 105 S.W.2d 909, 911[3] (banc 1937); Sutherland, Statutory Construction, § 51.02 (4th ed. 1973). Thus, the consistent purpose intended by the lawmaker for enactments in pari materia is to be given effect, whether the statutes were adopted at the same or other legislative session. State ex rel. Central Surety Ins. Corp. v. State Tax Commission, 348 Mo. 171, 153 S.W.2d 43, 45[4] (1941).

It is the persistent and cogent theme of these banking laws that a new bank entry, whether by charter, relocation or facility shall serve the convenience and needs of the community — and that this purpose is met preeminently by a sound system of regulated competition among banks. Central Bank of Clayton v. State Banking Board, supra, l.c. 182-184; Suburban Bank of Kansas City v. Jackson County State Bank, 330 S.W.2d 183, 187[3] (Mo.App.1959); Bank of Belton, supra, l.c. 456[4]. It is an equally compelling theme that when this, or any other, precondition to the exercise of Director authority to grant a certificate comes into dispute, the public interest requires that determination of the facts and policies which underlie an in formed administrative decision be made finally by the State Banking Board on evidence and hearing. Sections 361.092, 361.-094.2 and 361.095.4; Marshfield Community Bank v. State Banking Board, supra, l.c. 24, 26; Central Bank of Clayton v. State Banking Board, supra, l.c. 181[1].

The terms of § 362.108 for a separate facility within a town of not more than fifteen hundred and fifty population by a parent bank within a county of the second, third or fourth class do not provide expressly for an investigation and determination by the Director that the new entry will serve the convenience and needs of the community as do the terms of § 362.107.3 for a separate facility within the same city as the parent bank. Nor does § 362.108 expressly provide for administrative appeal to the Banking Board from an adverse decision of the Director as does § 362.107.4. For reasons given we conclude, nevertheless, that a consistent legislative concern for a healthy banking system and intention that the State Banking Board be final arbiter of the legislative policy at the agency level require that these statutes be given effect in pari materia to provide administrative review to the Board from a decision of the Director under § 362.108. We are persuaded also that the statutes which constitute the Board a varied but expert body, an adviser to the legislature on the state of the banking laws and to the Director on the management of the office, legislatively assess that the Banking Board shall have the primary jurisdiction to adjudicate the issues of that office for an orderly development of the public policy confided to its keeping— and to facilitate judicial review under § 536.100 of the Administrative Procedure and Review Act by a record of the contest. See: Marshfield Community Bank v. State Banking Board, supra, l.c. 24 and 26; Kostman v. Pine Lawn Bank and Trust Company, supra, l.c. 76; K. C. Davis, Administrative Law Treatise, § 19.01 (1958).

We conclude, therefore, that a competitor bank has status for judicial review of the grant of facility under § 362.108 to another bank within the same trade area. We conclude also that the action of the Director is not the final administrative decision but is subject to review by the State Banking Board on hearing, a remedy which must be exhausted antecedent to judicial review. The judicial review to one aggrieved from the final decision of the State Banking Board under § 362.108 comes, not under § 536.150 of the Administrative Procedure and Review Act [which by its terms excludes administrative decisions subject to administrative review], but under § 536.100 [which reviews a final decision in a contested case],

The petition of the plaintiff Farmers Bank which alleges facts that the grant of certificate to defendant First Missouri Bank for a facility in Barnhart was unlawful for want of notice or opportunity for objection by the plaintiff, an affected bank within the same trade area of the proposed facility, that the site proposed for the facility was not within the Town of Barnhart, that the population of Barnhart in any event exceeds one thousand five hundred and fifty people and already has banking services, all plead a justiciable controversy under § 362.108 which the plaintiff Farmers Bank has status to assert.

The sense of the petition of Farmers Bank is for judicial review of the decision of the Director under § 536.150 as for a noncontested case. The plaintiff maintains that posture on appeal. We have declared the legislative intention that § 362.108 be given effect in pari materia with § 362.107 and other related statutes of the Banking Act to accord administrative review of a decision of the Director to the State Banking Board on hearing—so that the eventual judicial review comes under § 536.100 as for a contested case. We do not hold the plaintiff to the strict remedy pleaded because the existence and nature of the judicial review under § 362.108 were hitherto open questions of law. Rather, we treat the pleadings as a request to declare the status of a competitor bank for judicial review— by whatever appropriate procedure — of a decision of the Director to grant facility to another bank within the same trade area under § 362.108. State ex rel. Walmar Investment Co. v. Mueller, supra, l.c. 183[3]; State ex rel. Bond v. Simmons, 299 S.W.2d 540, 542[1, 2] (Mo.App.1957).

The judgment of dismissal is set aside and the cause is remanded to the circuit court with directions that the petition be reinstated and with further direction that the petition be remanded to the State Banking Board for administrative review of the decision of the Director.

All concur.

      . The defendant Kostman is designated in the proceedings as Commissioner of Finance. That office has since been redesignated Director of Finance by statute and our opinion adopts that official appellation.

      . The Attorney General moved to intervene in the proceedings but the suit went to judgment without determination of that motion by the court. On the appeal the Attorney General joins in the brief of respondents Director of Finance and First Missouri Bank of Jefferson County.

      . The petition of Farmers Bank pleads also that on May 19, 1976, the very day § 362.108 (House Bill 1198) was signed by the Governor, First Missouri Bank of Jefferson County made application with the Director of Finance to establish the Barnhart facility. The face of the Certificate discloses that the authority for the facility issued on August 16, 1976, a scant three days after the effective date of the enactment.

      . The judgment assumes another premise, shared fully by the defendants Director of Finance and First Missouri Bank, but only alternatively by plaintiff Farmers Bank, that judicial review of the administrative grant of certificate for bank facility under § 362.108 — by one sufficiently affected by such a determination — is by § 536.150, the method the Administrative Procedure and Review Act provides for a noncon-tested case:
      When any administrative officer or body . shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person, including the denial or revocation of a license, and there is no other provision for judicial inquiry or review of such decision, such decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition or other appropriate action .
      In other words, this position assumes that the Director grant of authority under § 362.108 is not entitled to administrative review as an antecedent to judicial review.

      . Section 536.100 accords judicial review to “any person . . aggrieved by a final decision in a contested case.”

      . Section 536.150 accords judicial review where an agency decision not subject to administrative review determines the “legal rights, duties or privileges of any person.”

      . A contested case means “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” Section 536.-010(2). A noncontested case means an agency determination of the “legal rights, duties or privileges of any person” rendered without hearing before final decision. Section 536.150; State ex rel. State Tax Commission v. Walsh, 315 S.W.2d 830, 834[1] (Mo.banc 1958).

      .It is self-evident that an applicant will not seek review from a grant of facility. If, therefore, as the Director contends for § 362.108, a competitor bank has no status for administrative or judicial review of the decision to grant a facility to another bank within the affected area, the action of the Director would be beyond the reach of any review and become absolute despite erroneous, arbitrary, even willful, misdet-ermination of the statutory preconditions for grant of facility to a bank in a county of the second, third or fourth class: that the facility be in the same county as the bank, and within a town with a population of not more than one thousand five hundred and fifty, and within a town without other banking services, etc. The untrammeled authority the Director proposes under § 362.108, especially in view of the casual ex parte nature of that determination, tends to corrupt practice.

      . Section 362.107 authorizes any bank, with the approval of the Director, to maintain not more than two facilities separate from the main banking house within the same city and county. Section 362.108 authorizes any bank with its main banking house in a county of the second, third or fourth class, with the approval of the Director, to maintain not more than one separate facility within a town of not more than 1550 population located not more than fifteen miles from the parent bank. These provisions, by their terms, are not exclusive but cumulative.

      . For whatever relevancy it may bear on the contentions of the parties, the plaintiff Farmers Bank pleads [and we accept as true for the purpose of determination whether the petition dismissed by the trial court states a cause of action] that, contrary to the custom and procedure of the Director on an application for bank charter or facility under § 362.107, the Director made no request for information from banks in the area of the proposed First Missouri Bank facility, nor gave opportunity to oppose the grant.

      . The requirement that a proposed banking service shall be found by the Director to serve the convenience and needs of the community as a condition for authority to do the banking business applies also, among others, to an application of a bank to exercise the powers of a trust company [§ 362.115], to an application by a bank holding company to acquire another bank or holding company [§ 362.920] and, by clear implication to applications of a national bank to become a state bank [§ 362.235], to license a foreign corporation to do business in Missouri [§ 362.440] and that of a state bank to become a trust company [§ 362.117],

      . This repose of special confidence for these purposes in the State Banking Board is evident from the terms of § 361.097 which constitutes the Board from among bankers, lawyers and others from the community as guardians of the public interest at the final administrative level of decision [Kostman v. Pine Lawn Bank and Trust Company, supra, l.c. 76]; from § 361.093 which directs the Board to advise with the Director as to the administration of his office and the banking laws and to make recommendations to the general assembly as to changes in these laws; and from § 361.094 which provides for appeals to the Board from decisions of the Director and binds the Director — subject to judicial review — to the determinations of the Board.

      . These sections, 362.108 and 362.107, are not entirely without express relations between them. The final sentence of § 362.108 provides: “Loans may be made at any facility operated under the provisions of this section or under the provisions of section 362.107.” The authority granted by certificate under § 362.107 makes no provision for the transaction of loans, but only for payment of loans. The legislature, in effect, undertook to enlarge the authority for a facility issued under § 362.107 by enactment of § 362.108. Moreover, the provision of § 362.108 that the Director may approve a facility where the town of no more than fifteen hundred and fifty population does not have banking services can, and should, be understood to mean where the convenience and needs of the community for banking services has not been met according to the legislative standards which pervade these laws.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. FRANCHISE REALTY INTERSTATE CORP. et al., Respondents.
    No. 29770.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.

      Bruce A. Ring, Chief Counsel, Jefferson City, Earl H. Schrader, Jr., Darold W. Jenkins, Terry P. Thompson, Asst. Counsel, Mo. State Highway Commission, Kansas City, for appellant.
    Stanley I. Dale, Dale, Flynn, Bauman & Liles, St. Joseph, Wm. G. McCaffree, Nevada, for respondents.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and ROBERT R. WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Proceeding in condemnation for highway purposes. Landowners Roger Knapp and Joan A. Knapp excepted to commissioners’ award and jury fixed their damages at $15,-500.00. Condemnor Missouri State Highway Commission appeals.

In this court issues involve the propriety of considering “spatter” damages in post-taking valuation of respondents’ property and refusal of trial court to give withdrawal instruction on cost of removal of improvements on the property.

The highway project resulting in this action was the widening of U.S. Route 169, known as the “Belt Highway” on the east side of St. Joseph. In the area here involved, the roadway was to be widened from four 10' travel lanes to four 12' lanes with a 14' center turn lane. The Knapps owned a tract of land on the east side of the highway between Seneca and Penn Streets. As of the date of taking, May 12, 1976, the Knapp lot had an 82.5' frontage on Route 169 and a depth of approximately 96 feet. There was a building on the lot in which the Knapps conducted a hearing aid business, a sewing machine business and a lawnmower repair business. The hearing aid business was the principal operation. The building had been adapted for that use by the soundproofing of rooms used to test hearing aids by extra insulation, sound deadening wall boards and sound deadening floor covering and windows. Customers entered the building through two doors in the front, facing Route 169. Prior to the taking the front of the building was 30.8 feet from the traveled portion of the highway and 15.8 feet from the highway right of way.

The taking here involved a strip on the front of the lot five feet in width along the east edge. Upon completion of the project the building would be 19.8 feet from the traveled portion of the highway and 10.8 feet from the highway right of way. A sidewalk running along the front of the building and providing access to its entrances was 23 feet from the roadway before the taking. Its post-taking locating was 12 feet from the roadway.

As of the date of taking, the building did not conform to St. Joseph zoning ordinance setback requirements. Because of its nonconforming location, which would continue after the taking, no structural alterations or additions could be made to the building unless a variance could be obtained.

At the trial, a Highway Commission witness testified that the before taking value of the property was $28,600 and the after taking - value $26,025 or $2,575 damages. The landowners called as a witness one of the condemnation commissioners who had viewed the property. He valued the land and improvements taken at $2,742.00.

Another witness for the landowners testified to $40,000 before value and $20,000 after.

The witness upon whose testimony appellant’s claim of error is based was Jim Fitzgerald, a real estate broker who had previously been employed for ten years by the Highway Commission as supervisor of real estate appraisal in the St. Joseph area. He testified that in his opinion the Knapp property had a before taking value of $49,-900.00. In explaining the factors he had considered in his post-taking value, the witness stated:

“ * * * First of all, we lost the display area in front of the building. Now the graveled [traveled?] lane is very close, making it difficult to get in and out of the project. Traffic is now very close to the building. The vehicles going up and down the property in inclement weather will be splashing water and snow and everything you can think of far beyond the right-of-way. This sidewalk area in the front is the only way people can get to the building. You get out of the car, you walk across here to get to the door of the entrance of the building for the customers. Remember, we are talking about people that have a couple years on them.”

Counsel for appellant interposed an objection that the witness was including “items of damages not appropriate and proper in highway condemnation.” After further colloquy, appellant’s counsel inquired:

“ * * * [I] understand the Court has ruled that the proximity of traffic, increased traffic noise, speculation as to splashing of snow and ice and slush from without the right-of-way outside is to be permitted as an item of damages in this lawsuit?”

The court replied:

“ * * * The answer to the question, Mr. Jenkins, is that the Court has previously ruled that the general measure of damages excludes such matters as traffic, ice and snow, etc., except in those cases where there is a unique situation as approaches in this case. We have only one building close to the right-of-way. This approaches a unique situation. It approaches the exception and we will hear some evidence as to particular items of damage which are peculiar to this piece of property and not in general to all pieces on the Belt Highway. However, I would remind you gentlemen that a measure of damages for trespassing, etc., actual trespassing and discharge of snow and gravel is the subject of another lawsuit and should not be considered per se in this lawsuit.”

In further testimony, the witness showed that the Knapps’ building would, in fact, be closer to the traveled portion of the highway than any other business building situated along the improved highway. He concluded that the after taking fair market value of the Knapp property was $20,900.00. He referred to the special construction features of the building, rendering the use Knapp made of it the highest and best use and the nonconforming use problem which precluded the construction of entrances other than at the front of the building.

In the course of cross-examination, the witness was asked what monetary value he had placed on the possibility that “snow and slush and water and salt, etc., will be exhausted from the new right of way and onto this abutting remainder.” The witness replied that he had not placed a dollar value upon that element.

At the conclusion of the cross-examination, counsel for appellant moved to strike Fitzgerald’s testimony “because he considered an item that is not compensable and not able to separate it out, so that his damage figure of twenty thousand dollars contains items that are not admissible under the law of Missouri as an item of damages or responsibility of the Missouri State Highway Commission.”

The motion was overruled.

On recross-examination, the witness stated that, from his studies, he was satisfied that slush, snow and ice would be a problem for the Knapp property, that the problem would be caused by cars as well as snow plows, that he had observed the effect of highway salt on property and that these difficulties were an indistinguishable factor that a buyer would look at in trying to figure what it is worth to pay for property.

The landowners called Helen Christie as a witness. She testified that she lived in St. Joseph on Highway 371, a four lane highway with the traveled portion 28 feet from her front door. She stated that in times of “slush and wet” slush and dirt from the highway were thrown by snow plows and traffic upon her porch, against the house and against the windows and doors. Salt in the water turns her aluminum door black.

Prior to the witness’s testimony, counsel for appellant had objected to the testimony which he anticipated the witness would give and which she in fact did give on the grounds that “it is not relevant to the issue; that it will insert in this record and for the consideration by this jury an element of damage which is common to all people owning property abutting such highway; that it is not an element of damages in a highway eminent domain case * * The objection was overruled as was the motion to strike the witness’s testimony on the same grounds.

In this court, appellant complains of the trial court’s rulings on its objections and motions covering the testimony about the effect of snow, slush, etc. This point might easily be disposed of summarily because of the absence of any statement therein of “wherein and why” the rulings are claimed to be erroneous. Rule 84.04(d). See Thummel v. King, 570 S.W.2d 679, 685-687[5]-[11] (Mo.banc 1978). However, since the final paragraph of the appellant’s argument on this point does summarize the bases for its contention of error, the point will be considered.

The argument and summary do include numerous grounds which were not called to the attention of the trial court. When the question of “spatter” testimony first arose, counsel for appellant voiced an objection that the matter was not relevant to any issue of damages, “that if in fact it occurs, it is the same as noise. It is a common damage that everybody in the range of the highway, with or without taking, has to suffer.” The court ultimately concluded it would admit such evidence. When the matter first appeared in Fitzgerald’s testimony, the objection was that the witness was “inserting items of damage which are not appropriate and proper in highway condemnation.” The motion to strike, although not in the same language, was to the same effect, with no reason stated as to why the items of damage were not appropriate. When objection to Ms. Christie’s proposed testimony was voiced, it was predicated on the “common damage” theory.

Nowhere in the transcript is there found objection because the testimony “related to a hypothetical factual situation” (the building was in fact moved before the project was completed); because the evidence would permit consideration of matters involving “future tortious use of the new highway;” that it would subject the commission to “double damages.” Review will be confined to the single objection that “ * * * insofar as snow, ice, slush and debris will be expelled from the new highway by motor vehicles owned by the private parties, this remainder will suffer neither more nor less than any other abutting landowner, and, under such circumstances, the Commission is not presently required to pay compensatory damages for such damages sustained in common with other abutting landowners; * *

Missouri adheres to the position that “ * * * noise and speed, increased traffic and their resulting inconveniences are neither elements of damages nor of benefits and they are not proper matters of proof or for the jury’s consideration.” State ex rel. Highway Commission v. Galeener, 402 S.W.2d 336, 340[5-7] (Mo.1966). The basis of this rule is that such damages are “general” in that they are suffered in common by all landowners in the vicinity of the taking, including those owning land which has not been taken. State ex rel. State Highway Commission v. McMurtrey, 300 S.W.2d 521, 527[6, 7] (Mo.1957); State ex rel. State Highway Commission v. Turk, 366 S.W.2d 420, 421-422[2, 3] (Mo.1963). That is the rule relied upon by appellant here.

A case such as this invokes other general rules, well summarized (omitting citations) in State ex rel. N. W. Electric Power Cooperative, Inc. v. Waggoner, 319 S.W.2d 930, 934—935(7]—[9] (Mo.App.1959):

“ * * * Where only a part of the property is condemned the owner is entitled to compensation not only for the part actually taken but for whatever consequential damages may proximately result to the remainder by reason of the taking of a part. * * This includes damages resulting from any destruction, restriction, diminution, or interruption of the rights of ownership in and to the property. * * *
“Generally, any evidence which is competent to prove the market value of the tract of land before and after the appropriation of the easement, unless barred by some recognized rule of evidence, is pertinent and admissible. * * * Testimony concerning market value that is purely speculative or based on surmise and conjecture is not admissible. * * * ”

State ex rel. v. Galeener, supra, recognizes that “ * * * even though inconvenience, here of carrying on farming operations or other business, is not an element for which the landowner may be compensated, it may with other factors affect future use and therefore market value, * 402 S.W.2d at 340 (emphasis supplied).

In Kamo Electric Cooperative, Inc. v. Cushard, 455 S.W.2d 513, 516[3, 4] (Mo.banc 1970), the court rejected the argument that the “rule of common injury” precluded a claim of decreased value of land which considered unsightliness of an electric transmission line as an element. In rejecting the argument the court stated:

“ * * * However, land is unique and no one else has a power line which goes across this particular farm in this particular way except the defendants. The farm of the defendants is ‘a lot nicer’ according to defendants’ evidence than some of the adjoining farms. The fact the power line crosses other farms before it reaches and after it leaves defendants’ farm does not destroy defendants’ right to be paid just compensation for the loss in market value of their farm. * * * Before the taking in question, the defendants had the right to use their farm with complete freedom from diminution in value caused by unsightly structures on it erected by others. As a result of the transmission line being put across the property, the value of their property was reduced, due in part to the unsightliness of the line. This is no mere personal inconvenience or injury, ‘ * * * common to other landowners in the neighborhood, whose property had not been taken * * * ’, to quote from the Chicago Great Western case, 166 S.W. 1. c. 296, relied on by plaintiff.”

In State ex rel. State Highway Commission v. King Brothers Motel, Inc., 388 S.W.2d 522, 525[4-6] (Mo.App.1965), the common damage objection was raised to testimony of the owner of a residence that headlights of vehicles on the new roadway constructed in part on the land taken from him shone into the bedroom of his house. The court rejected the objection, stating:

“Furthermore, the evidence was that the outer roadway approached the defendants’ house on a downgrade and on a curve, and so far as shown on the plats introduced in evidence it was the only house in this section of the improvement which was so situated, and the only house which would be subjected to the glare of headlights. It cannot be said, therefore, that this was an item of general damage * *

Appellant argues that the King Brothers case does not support the admission of the evidence here considered because in the King case the evidence showed a “unique placement or construction feature of the new highway” which resulted in greater damage to the remainder than to any other landowner whose property had been taken. The placement or construction of the highway was not the unique feature which produced the result in the King case. The location of the landowner’s house was such that only he was affected in the particular there involved.

In this case, the testimony here in question amply demonstrated that the Knapp building had a special adaptation. See City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, 153—154[7, 8] (1943). The evidence showed that $10,000 had been expended in the construction of special sound rooms for the hearing aid business. The hearing aid business catered primarily to older persons. Slush and spatter from the roadway would create problems of access to the building for such customers. Because of the nonconforming use problem, alternative means of access were not available. The Knapp building was located closer to the roadway than other business establishments along the improvement. The evidence did show that the slush and spatter problem could well be a factor affecting future use of the property and that such factor could well affect the value of the building.

Under the Galeener, Kamo and King Brothers eases, the evidence here did not relate to items of general damage common to all landowners in the area.

Inasmuch as the landowner must show that the invasion complained of may be reasonably expected, the testimony of Ms. Christie was properly admitted.

Appellant complains of the refusal of its instruction withdrawing from consideration by the jury evidence pertaining to the cost of removing and relocating the Knapps’ building. Appellant argues that the instruction was offered because respondents’ witnesses disclaimed removal costs as any part of the damages sustained by respondents.

Counsel for appellant introduced and pursued the subject of the removal, subsequent to the date of taking, of the Knapp building to the rear of the lot. The theory of appellant in eliciting such evidence is not entirely clear but some questions on the subject could well have been designed to inject into the case the issue of whether or not the cost of removal of the building might have been less than the damages sought by the landowners. To counter such inference, the landowners presented evidence of the cost of removal. Mr. Knapp testified that he had expended $35,000 on the project and that it was not completed. In other words, since the state injected the cost of cure idea into the case, the landowners presented evidence to show the inapplicability of that theory.

In these circumstances, the appellant having opened up the subject may not complain of the trial court’s refusal to give a withdrawal instruction on the matter.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Gus GRADY, Jr., Appellant.
    No. KCD 29937.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1979.

      Joe L. Moseley, Asst. Public Defender, Columbia, for appellant.
    Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   PER CURIAM:

Defendant appeals his judgment and sentence on conviction for the offense of rape and kidnapping. Affirmed.

The sole issue presented on this appeal is a challenge to MAI-CR Approved Notes on Use which provide as follows:

(As to MAI-CR 2.04) “A general converse must not be included in the verdict directing instructions (1) where an affirmative defense has been submitted * * ”
(As to MAI-CR 2.30) “If there is such evidence [of mental disease or defect excluding responsibility], the following rules will govern the use of the following instructions in the 2.00 and 3.00 series:
c. None of the State’s verdict directing instructions should include the general converse reading, ‘However if you do not find and believe etc.’ ”

At trial, defendant, by prior notice timely filed, relied on a defense of mental disease or defect, but not as the sole defense. His contention is that instructions given by the trial court in admitted conformity with the above cited MAI-CR Notes on Use misdirected the jury either to deny him the benefit of acquittal if they did not believe each element of the State’s case was proven beyond a reasonable doubt, or to limit the option for acquittal to a finding of mental disease or defect under the affirmative defense instruction. Each point, while related alternatively to the State’s verdict directing instruction and defendant’s affirmative defense instruction, centers on omission of the general converse, first from the State’s two verdict directing instructions, and second from defendant’s affirmative defense instruction.

Defendant cites no authority in support of the alleged points of error, but apparently assumes that this court may direct some alteration in MAI-CR and the Notes on Use. In fact, the contentions presented by defendant offer nothing for review by this court. It is not open for this court to declare erroneous those instruction forms which have been adopted for standard use by the Supreme Court. State v. Yeokum, 516 S.W.2d 535 (Mo.App.1974). Notes on Use, in like manner as the Missouri Approved Instructions, are to be religiously observed without variation. State v. Billingsley, 534 S.W.2d 484 (Mo.App.1976).

While acknowledgment by defendant that the instructions given were in the precise forms required by MAI-CR resolves the issues as briefed by defendant, the substance of defendant’s complaint of prejudice under the form of the instructions prompts review of all the instructions considered together.

Instructions 6 and 10 patterned on MAI-CR 2.33 advised the jury that a decision as to the affirmative defense of mental disease or defect was only required if the initial issue of guilt under the State’s verdict directing instruction had been made adversely to defendant. Instructions 7 and 11 following the form of MAI — CR 3.70 directed the jury’s attention to both defenses, denial of commission of the crime and incapacity by reason of mental disease or defect. Instruction 15, form MAI-CR 2.70, advised the jury of three possible verdicts on each count.

Viewed as a whole, the instructions fully submitted for the jury’s consideration all aspects of the case. The claim of prejudice to defendant is without merit.

Judgment affirmed.


author: SOMERVILLE, Presiding Judge.

text:
    Bonnie BALLARD, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29671.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 26, 1979.
    Application to Transfer Denied April 10, 1979.

      Kranitz & Kranitz, Ronald M. Sokol, St. Joseph, 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.
   SOMERVILLE, Presiding Judge.

Bonnie Ballard (movant) was charged in the Circuit Court of Buchanan County, Missouri, with the crime of assault with intent to maim with malice aforethought (Section 559.180, RSMo 1969). She entered a plea of guilty thereto and was sentenced to confinement in the Missouri Department of Corrections for a period of thirty-five years. This appeal lies from a judgment and order of the Circuit Court of Buchanan County, Missouri, denying movant’s amended Rule 27.26 motion to vacate her sentence following an evidentiary hearing.

Thirteen separate contentions have been amassed in a single point on appeal by movant. Many of the components of this single point overlap, many are repetitive, many are bare conclusory allegations, and many were never included in movant’s Rule 27.26 motion or given evi-dentiary treatment at the hearing below. As a result, otherwise cognizable issues on appeal have become so obfuscated that they defy quick or easy recognition. Counsel’s apparent zeal to overlook or omit nothing, however well intentioned, has frustrated rather than served the appellate process. In an effort to correct this situation the far ranging panoply of splinter issues tendered by movant has been reduced to basics. After doing so, all viable issues asserted by movant on appeal are fairly posed in the following points: (1) movant’s guilty plea was involuntary because counsel (a) failed to advise her of the elements of the charged offense, (b) failed to advise her as to possible defenses thereto, and (c) improvidently undertook to represent both her and her husband at the same time for the same offense; and (2) the trial judge sentenced movant for a crime other than the one for which she was charged.

No amount of analysis or recasting of movant’s single point can change the fact that primarily it is a limited attack upon the adequacy or effectiveness of counsel; limited in the sense that when a plea of guilty is entered, as here, effectiveness of counsel is material only to the extent it bears on whether a guilty plea is voluntarily and knowingly made. Stated in more positive terms, if a guilty plea is voluntarily and knowingly made counsel cannot be charged with providing ineffective assistance. Barylski v. State, 473 S.W.2d 399, 402 (Mo.1971); Hulett v. State, 473 S.W.2d 410, 411 (Mo.1971); Coleman v. State, 542 S.W.2d 53, 54 (Mo.App.1976); and Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973).

Movant singles out three instances as being indicative of counsel’s lack of proper representation — failure to advise her of the elements of the offense with which she stood charged, failure to advise her of possible defenses to said charge, and undertaking to represent both her and her husband at the same time for the same crime. Each will be separately treated.

Movant’s claim that counsel failed to advise her of the elements of the charged offense, thereby rendering her plea of guilty involuntary, must be placed in proper perspective. Essentially, it is a claim by movant that she did not understand the nature of the charge to which she pled guilty. Even if one assumes that counsel failed to spell out the elements of the offense to movant, her guilty plea was not fatally stricken per se by reason of his failure to do so. It has been firmly established that when an accused in a plea proceeding admits in open court facts which constitute the offense to which he pleads guilty, he is thereafter precluded from withdrawing his plea on the assertion that he did not understand the nature of the charge to which he pled guilty. Carter v. State, 472 S.W.2d 370, 373 (Mo.1971); Jones v. State, 471 S.W.2d 223, 228 (Mo.1971); McIntosh v. State, 559 S.W.2d 598, 601 (Mo. App.1977); Fisk v. State, 515 S.W.2d 865, 869 (Mo.App.1974); and Hayes v. State, 501 S.W.2d 508, 512 (Mo.App.1973). As applied to this case, movant testified as follows in open court when her plea of guilty was entered and accepted: A third party acting on behalf of a married woman contacted movant’s husband and asked him to “have a car wreck” with the married woman’s husband. The married woman was supposed to pay movant’s husband for staging the “car wreck”. Some months went by and the “car wreck” was never staged. The married woman then made several contacts with movant’s husband and asked him and the movant to come to her house and “beat up” her husband. She agreed to pay mov-ant and her husband an undisclosed amount for doing so. The married woman called movant and her husband and said she would pick them up and take them to her home where her husband could be found. The married woman suggested that movant bring a rifle and that movant’s husband bring a “bat" to carry out the job they had contracted to do. Movant and her husband obliged and the married woman picked them up, took them to her house, and admitted them. The married woman’s husband, who was in the basement, was enticed to come upstairs where the movant and her husband were lying in wait. When the married woman’s husband saw movant and her husband he became “scared” and a scuffle ensued between him and movant’s husband. Movant’s husband started swinging at the victim with his “bat” and movant shot the victim twice with her rifle. This testimony of movant at the plea proceeding, confessing as it did all the elements of the offense of assault with intent to maim with malice aforethought (Section 559.180, supra), silences any present cry on movant’s part that her plea of guilty was involuntary because counsel failed to advise her of the elements of the offense to which she pled guilty.

Movant’s contention that her plea of guilty was rendered involuntary due to counsel’s failure to warn her as to possible defenses can be dispatched with even greater celerity. Although movant testified that counsel never discussed possible defenses with her prior to entering her plea of guilty, such testimony was contradicted by counsel at the Rule 27.26 hearing. According to counsel, the possibility of self-defense (both from the standpoint of defending herself and from the standpoint of defending her husband) was discussed with movant prior to the time she pled guilty, notwithstanding the bizarre nature of the events she had recounted to counsel. The trial court had no choice but to resolve this highly controverted fact issue by assessing the credibility of the respective witnesses involved. Obviously it chose to believe counsel and to disbelieve movant, as was its prerogative. Goodloe v. State, 486 S.W.2d 430, 432 (Mo.1972); and VanDyke v. State, 522 S.W.2d 101, 103 (Mo.App.1975). Resolution of a fact issue at the trial court level on the basis of which of two opposing witnesses is more credible is entitled to deference on appeal. Goodloe v. State, supra; and VanDyke v. State, supra.

Movant’s contention that her plea of guilty was rendered involuntary due to counsel’s dual role as appointed counsel for both her and her husband is not well taken. Movant has failed all along the line to embellish this contention with any facts. It is barren of any real substance as a conflict of interest as movant offered no evidence whatsoever that counsel’s dual representation was ever objected to, or that it worked to her detriment, or that it favored her husband at her expense. Movant’s charge of dual representation on the part of counsel, without the benefit of explicative facts, cannot be seized upon to defeat the otherwise voluntary nature of her guilty plea. Davis v. State, 573 S.W.2d 736, handed down October 31, 1978, by Missouri Court of Appeals, St. Louis District.

The final point presented on appeal, that the trial judge sentenced movant for a crime other than the one for which she stood charged, is wholly without merit. It represents a classic example of taking certain language out of context, conveniently construing it to serve one’s own purpose, and then impugning it with error. The genesis of the confusion swirling around this final point is found in the following comments made by the trial judge when sentencing movant at the conclusion of the plea proceeding: “Well, this has been a particularly difficult case for me to decide what to do. I’m faced with the fact that they were hired to kill this fellow, apparently, and they failed. If they had succeeded, under the present law, they could have been sentenced to life, which would have been the maximum. It has been a puzzle to me how much you take off for somebody failing to carry out a crime they intended to carry out.” Movant contends that these comments inexorably demonstrate that the trial judge sentenced her for the crime of attempted murder, first degree, which carried a penalty of two to fifteen years imprisonment (Section 556.150(1), RSMo 1969), rather than for the charged crime of assault with intent to maim with malice aforethought which carried a penalty of imprisonment for two years to life (Section 559.180, RSMo 1969). The record fails to bear out the impetus movant seeks to attribute to the comments made by the trial judge. Movant was charged with the crime of assault with intent to maim with malice aforethought, the transcript of the plea proceeding, quoting the trial judge, contains the following recital, to wit, “let the record show the Court finds the defendant’s plea is voluntary and finds the defendant is guilty as charged and accepts the defendant’s plea”, immediately prior thereto movant (defendant) had recited facts showing her guilty of assault with intent to maim with malice aforethought, and the sentence fixed by the trial judge was within the range of punishment for the crime to which movant pled guilty, assault with intent to maim with malice aforethought. However inopportune the trial judge’s comments may have been, they were innocuous and appear to have expressed a common dismay at the incongruity in Missouri law which punishes assault with malice aforethought more stringently than attempted murder.

The ultimate function of an appellate court when reviewing the judgment of a trial court in a Rule 27.26 proceeding is to determine whether the judgment of the trial court was “clearly erroneous”. Rule 27.-26(j); and Shoemake v. State, 462 S.W.2d 772, 775 (Mo. banc 1971). The judgment of the trial court in the instant case was not “clearly erroneous”.

Judgment affirmed.

All concur.

      . Grounds not included in a Rule 27.26 motion cannot be raised or asserted on appeal as grounds for relief. Rule 27.26(c); Maggard v. State, 471 S.W.2d 161, 162 (Mo.1971); Johnson v. State, 463 S.W.2d 873, 875 (Mo.1971); and Neighbors v. State, 515 S.W.2d 792, 793 (Mo.App.1974).

      . Grounds for relief asserted in a Rule 27.26 motion do not prove themselves and it is incumbent upon the movant to prove such grounds by a preponderance of the evidence. Rule 27.26(f); Collins v. State, 450 S.W.2d 186, 187 (Mo.1970); McLallen v. State, 543 S.W.2d 813, 815 (Mo.App.1976); and Coleman v. State, 542 S.W.2d 53, 54 (Mo.App.1976).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. William HAMM, Appellant.
    No. 38863.
    Missouri Court of Appeals, Eastern District.
    Feb. 6, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.
    Application to Transfer Denied April 10, 1979.

      Claude Hanks, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Weldon W. Perry, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM.

Defendant was convicted of assault with intent to rape and was sentenced to two years imprisonment. His appeal is based on the single point that the trial court erred in overruling his motion for acquittal for the reason that the state failed to produce sufficient evidence to sustain the jury’s verdict against him. Despite defendant’s counsel’s utter disdain for Rule 84.04 pertaining to appellate briefs , we are constrained to apply the plain error doctrine of Rule 27.20(c), for there is insufficient evidence to support the conviction. We therefore reverse the judgment.

When the evidence is viewed in the light most favorable to the state, it appears that the prosecutrix had applied for work at a bar and restaurant in Troy at a time when defendant was also present. Defendant followed her out of the bar and engaged her in a conversation in which he mentioned that he owned three restaurant-bars in Elsberry and would like for her to manage them for him. The prosecutrix and defendant left her motor vehicle at her home, where he met and visited with her mother and son, and then proceeded together in defendant’s car, ostensibly to view his restaurants in Elsberry. A stop was made along the way to purchase some beer, which both consumed, and another stop was made at a tavern near Winfield to answer nature’s call. Both played some pool at the tavern and consumed more beer. The interlude in their trip was made longer by reason of the fact that defendant could not get his car started. While waiting for automotive help, at defendant’s suggestion both took a walk in a nearby woods. The prosecutrix related that in the woods he commenced his flirtation: “he started pushing me up against them [the trees] trying to kiss me.” But when asked by the prosecutrix to cease his dalliance, defendant immediately complied with her request and stopped his advances. The two returned to the tavern to drink beer and play more pool. When defendant’s auto was finally repaired — -three to four hours after their arrival at the tavern in Winfield — the two proceeded on their way to Elsberry, where the defendant announced that he had always engaged in sexual relations with every girl that worked for him. He then turned off the main highway onto a gravel road. The prosecu-trix indicated an intention to get out of the car as it was moving, and defendant told her that if she jumped from the moving auto he would “drop me within 10 or 20 feet and I would never see my kid again.” He then stopped the car, moved over to the prosecutrix’ side, and without any indication of resistance from her, lifted her dress and tugged at her undergarments in an effort to pull them down. His efforts were clumsy and he was unable to remove any of her garments or even lower them as far as her knees. But in the excitement of the situation he reached a sexual climax and spilled seminal fluid on the prosecutrix’ clothing. Defendant immediately took the prosecutrix home where he again talked to her mother, and the prosecutrix voluntarily gave him her telephone number — a rather curious action. Her explanation for giving him the number was so that if he would call to meet her again, she would kill him. Fifteen to twenty minutes after the defendant left her home, the prosecutrix reported the incident to her mother.

Defendant’s version of the evidence differs mightily. He testified that the prose-cutrix was the aggressor, had requested $200 for her favors and that he had tried to resist her. He acknowledged the fact of his climax and testified that as soon as he had taken the prosecutrix to her residence, he immediately went home to tell his wife of the day’s events — another curious incident.

The law regarding uncorroborated testimony has been well stated in State v. Baldwin, 571 S.W.2d 236 (Mo. banc 1978), a rape ease where the parties initial association was chummy, l.c. 239:

Defendant complains that the State’s case rested almost entirely on the testimony of the prosecutrix and that the circumstances leading up to the alleged rape suggest that corroborating testimony was necessary. The basis for this argument is that there was evidence that they had been drinking and dancing together in a bar prior to the occurrence, that they had been acquainted for about two years and that she cooperated by removing her clothing prior to the intercourse. While these are circumstances the jury may weigh in determining the credibility of the prosecutrix, the rule in this state is that a conviction in cases of rape may be had upon the uncorroborated evidence of the prosecutrix. It is only in those cases where the evidence of the prosecutrix is that of a contradictory nature or, when applied to the admitted facts in the case, her testimony is not convincing and leaves the mind of the court clouded with doubts, that she must be corroborated or a judgment cannot be sustained. State v. Burton, 355 Mo. 467, 196 S.W.2d 621, 622-23 (1946).

Whether the prosecutrix may have offered no resistance to defendant’s demands by reason of fear is a jury question with the jury being the arbiter of disputed facts, the probabilities of the evidence, and of the credibility of the witnesses. State v. Baldwin, supra; State v. Graham, 527 S.W.2d 936 (Mo.App.1975); State v. Bohannon, 526 S.W .2d 861 (Mo.App.1975).

However, we have the obligation to review the facts and consider them in relationship to the applicable law of the case. The difficult issue here is the matter of non-consent and resistance. Where there is a fear of violence that overpowers a woman’s mind to resist, there is no consent. And if resistance would be futile, proof of such is unnecessary. State v. Stamps, 569 S.W.2d 762 (Mo.App.1978); State v. Davis, 557 S.W.2d 41 (Mo.App.1977).

Of course, in a rape case the pros-ecutrix is required to use the utmost resistance of which she is capable. But in an assault with intent to rape, the doctrine of utmost resistance is not applicable, for the fact the rape is not consummated is sufficient to establish that there was resistance commensurate to thwart the effort at completing the crime. State v. McChesney, 185 S.W. 197 (Mo.1916). In order to convict of assault with intent to rape, the state must prove the assault and show that the defendant intended to have sexual intercourse with the prosecutrix “forcible and against her will, by using such force as would at all hazards overcome her resistance.” State v. Hawkins, 544 S.W.2d 880, 885 (Mo.App. 1976); State v. Williams, 324 Mo. 179, 22 S.W.2d 649 (1929); State v. Comer, 296 Mo. 1, 247 S.W. 179 (1922); State v. McChesney, supra.

In reaching our decision in this difficult case, we are guided by the following decisions of our Supreme Court relating to assault with intent to rape. We are persuaded by the fact that in these cases finding that conviction for assault with intent to rape could not stand, the improper conduct of the accused was more egregious than that of the defendant here, and the efforts at resistance by the complainants far greater than the prosecutrix here.

In State v. McChesney, supra, no more than common assault was found where, after soliciting intercourse for about four to five hours, the defendant scuffled with the prosecutrix, threw her to the floor and tried to raise her clothing. The case against defendant for assault with intent to rape was reversed. In State v. Williams, 324 Mo. 179, 22 S.W.2d 649 (1929), the defendant was convicted of assault with intent to rape where the evidence showed that he had fondled the prosecutrix, threatened her with a gun, and even struck her. However, in finding that there was insufficient proof of defendant’s intention to have sexual relations despite any and all resistance which the prosecutrix might offer, the court reversed, holding that the evidence showed only common assault. In State v. Osborne, 246 S.W. 878 (Mo.1922), the defendant forced the prosecutrix off her horse and into some bushes with the announced intention of indulging in her sexual favors. While charged with assault with intent to rape, he was convicted only of common assault. The judgment was affirmed with the court noting that “[i]t did not appear that defendant intended to have carnal knowledge of prosecutrix at all events, and notwithstanding any resistance on her part.” Id. at 880. In State v. Fleming, 177 S.W. 299 (Mo.1915), the defendant threw the prosecutrix under a cot, tried to force his hands under her clothing and even suggested throwing her off a building in his struggle for sex. In finding the evidence insufficient to support a conviction of assault with intent to rape, the Supreme Court said, id. at 302:

In the case at bar there is no evidence of a violent attack on the part of defendant, such as would allow the inference that he intended to have sexual intercourse by the use of force and against the consent of prosecutrix. If such was his intention, he had ample opportunity to have accomplished his desire, or to at least have acted with such violence or force in that behalf as to have disclosed that such was his intention, and yet no violence of such a character is disclosed by the evidence.

In State v. Thomas, 351 Mo. 804, 174 S.W.2d 337 (1943), the defendant’s throwing prose-cutrix on a bed, lying on her body, declaring his intent to have intercourse and wrestling with her, was held too weak to establish that he intended to accomplish his purpose “by force against the will of the prosecutrix and by overcoming her utmost resistance.” Id. at 344.

We have meticulously reviewed the evidence and find that there is insufficient evidence of force or lack of consent to justify a finding of defendant’s guilt of the charge. The record is absolutely destitute of anything that would show that the prose-cutrix had resisted defendant’s sexual advances. Her attitude from the record is one of total passivity. She had easily rebuffed him in his effort to kiss her when walking in the woods near Winfield. She knew of his penchant for amour and still accompanied him. Although she testified that defendant had threatened to whip her, she was young and according to the record, apparently larger than he (she was 24, 5'8" and 160 pounds). The prosecutrix did not have any reason to suspect that the defendant possessed a weapon, nor did he strike, choke or use or display any force whatsoever. He was unsuccessful in his efforts to remove any of her clothing and none was torn. He did not even lower his trousers, although his sex organ was apparently protruding from his trousers’ fly. Under the circumstances, we believe that to uphold the conviction in this case the record must contain evidence to show at least some resistance, or some reason by which resistance would have been unavailing, or that fear prevented her from exercising any resistance. State v. McChesney, supra. She had no reason to believe that defendant would have succeeded in his lustful desires by force had the prosecutrix sought to repel him.

The record is simply deficient regarding the required proof for assault with intent to rape. The state has failed to prove that the defendant intended to have sexual intercourse with the prosecutrix “forcible and against her will, by using such force as would at all hazards overcome her resistance.” State v. Thomas, supra; State v. Williams, supra; State v. Osborne, supra; State v. McChesney, supra; State v. Fleming, supra. Defendant displayed no array of physical force, State v. Davis, supra, or genuine threat of physical violence, State v. Barteau, 571 S.W.2d 483 (Mo.App.1978). We believe that the facts of this case militate strongly for reversal, in that the state has failed to establish the force or resistance necessary to support a conviction for assault with intent to rape. While the evidence may well show common assault, based on the recited case precedent, it does not support the conviction here. The fact of the prosecutrix’ knowledge of defendant’s amorous tendencies, coupled with her willing continued association with him after his initial advance in the woods and the lack of showing of any resistance or real basis for fear, lead us to the conclusion that the judgment should be reversed. State v. Thomas, supra; State v. Williams, supra; State v. Osborne, supra; State v. McChesney, supra; State v. Fleming, supra.

Judgment reversed.

All judges concur.

      . Defendant’s brief contains a statement of facts which is no more than 22 pages of verbatim testimony reproduced from the transcript, plus 2 pages of facts related and recited to favor defendant, which makes the brief totally deficient. State v. Robinson, 555 S.W.2d 667 (Mo.App.1977); State v. Schulten, 529 S.W.2d 432 (Mo.App.1975).

      . Contra, State v. McChesney, supra, regarding need for utmost resistance in assault with intent to rape.