text:
    LOUISVILLE & JEFFERSON COUNTY BOARD OF ZONING ADJUSTMENT, Movant, v. JOSEPH C. HOFGESANG SAND COMPANY, INC., Respondent.
    Supreme Court of Kentucky.
    Sept. 18, 1979.

      Alex F. Talbott, Louisville, for movant.
    Ben B. Hardy, Louisville, for respondent.
   OPINION AND ORDER

The motion of Louisville & Jefferson County Board of Zoning Adjustment for a review of the decision of the Court of Appeals is granted.

The decision of the Court of Appeals rendered March 23, 1979, is now vacated, and this proceeding is remanded to the Court of Appeals for reconsideration in light of City of Paducah v. Jones, 126 Ky. 809, 104 S.W. 971 (1907), and American Book Company v. Wells, 26 K.L.R. 1159, 83 S.W. 622 (1904).

All concur.


source: Caselaw Access Project

author: CLEMENS, Judge.

license: Public Domain

text:
    Robert WORLEY, Appellant, v. Donald H. WHALEY et al., comprising the Board of Police Commissioners, St. Louis, Missouri, Respondents.
    No. 40268.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 30, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 16, 1979.
    Application to Transfer Denied April 10, 1979.
    C. John Pleban, St. Louis, for appellant.
    David 0. Danis, St. Louis, for respondents.
   CLEMENS, Judge.

Plaintiff, Robert Worley, a former police officer, has appealed the trial court’s judgment which upheld his dismissal by the defendant St. Louis Board of Police Commissioners (hereafter the “Board”). The Board dismissed plaintiff for disobeying its order that he file a report concerning a line-of-duty incident. Plaintiff declined to do so on the ground of self-incrimination. The Board’s regulations provided, however, that plaintiff’s answers could not be used to incriminate him.

Plaintiff’s dismissal followed the Board’s finding he had violated Rule 9, Section 9.001(b) of the Board’s police manual, which provides that “(b) all orders of a superior must be observed and obeyed.”

This case originated in the Board’s investigation of an alleged assault by other police officers on two private citizens. Plaintiff had been summoned to the assault scene. Later, when the police department’s Internal Affairs Division (IAD) began an investigation, plaintiff was ordered to file a report concerning his knowledge of the incident. Plaintiff was then advised he could seek legal advice before making a statement, and he did so. Despite direct orders from his superiors, defendant refused to file the report, asserting the Fifth Amendment.

Defendant had counsel at the hearing, held to determine whether he had wrongfully refused to obey a lawful order to file a report. Evidence conflicted as to whether plaintiff had been informed of his “Internal Affair Rights” by any of the officers conducting the investigation. Police Sergeant Wagner testified he thought he had read plaintiff his rights but could not be absolutely sure; he admitted the possibility that he had not. Plaintiff testified he had not been read his rights by anyone. Plaintiff admitted that he knew the nature of these rights, as contained in the Board’s manual which he had studied while undergoing training at the police academy. These rights, as pertinent here, provided that the inquiry was limited to the officer’s official duties; that if he refused to answer relevant questions he could be dismissed; that his answers could not be used against him in subsequent criminal proceedings.

Plaintiff claims on appeal that the trial court erred in affirming the Board’s decision in two respects: (1) Dismissal for failure to obey an order from a superior officer was improper when he had not been clearly advised of his constitutional rights, or that the statement was to be used for internal purposes only, and (2) dismissal for failure to obey an order to submit a written statement denied plaintiff his right against self-incrimination because it was, in effect, an order compelling him to forego his Fifth Amendment right.

Our function is to determine whether the Board’s decision is supported by competent and substantial evidence, or whether it was so arbitrary as to be an abuse of discretion. Perez v. Webb, 533 S.W.2d 650[3] (Mo.App.1976); Century State Bank v. State Banking Board of Missouri, 523 S.W.2d 856[2, 3] (Mo.App.1975). The evidence was conflicting. The Board, having the opportunity to weigh the testimony and observe the witnesses, was empowered to believe whomsoever it chose. Board of Education, Mt. Vernon Schools v. Shank, 542 S.W.2d 779[5, 6] (Mo. banc 1976). McNeal, et al. v. Bequette, 571 S.W.2d 677 (Mo.App.1978). The Board was not obliged to believe plaintiff’s self-serving statement about not knowing that by his requested statement he was immune from prosecution. His admission of having read these rights in the police manual is sufficient to charge him with knowledge. The effect of the trial court’s judgment is to deny a police officer the power to shield himself from intra-departmental inquiry by invoking the Fifth Amendment privilege when he has been informed that such evidence would be inadmissible in any future criminal proceeding.

As to plaintiff’s second contention, we believe he is wrongfully assuming that the information requested from him would be used against him later in derogation of his rights. We find no basis for this assumption. Plaintiff had not been charged in any criminal proceeding, nor does he appear to have been so threatened, as he was only a potential witness to the incident and not himself involved.

It follows that plaintiff failed to make the requisite showing that the requested report would incriminate him. State ex rel. Caloia v. Weinstein, 525 S.W.2d 779[4] (Mo.App.1975). On the contrary, it seems his report would serve only to incriminate others. It is axiomatic that the Fifth Amendment privilege is personal in nature and may not be invoked for the protection of others, as seemingly was attempted here.

We note the importance each side attaches to the cases of Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) and Confederation of Police v. Conlisk, 489 F.2d 891 (7th Cir. 1973). Neither case is in point since each differs on its facts. They recognize no Fifth Amendment privilege absolving a policeman from testifying in a disciplinary proceeding as to his official conduct.

We hold the Board’s decision was not an abuse of discretion since it was based on competent and substantial evidence showing plaintiff violated a lawful order by refusing to report on a line-of-duty incident. In reaching that decision the Board did not violate plaintiff’s constitutional rights.

Judgment affirmed.

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

      . “I wish to advise you that you are being questioned as part of an official investigation of the Police Department. You will be asked questions specifically directed and narrowly related to the performance of your offical [sic] duties or fitness for office. You are entitled to all the rights and privileges guaranteed by the laws and the Constitution of this State and the Constitution of the United States, including the right not to be compelled to incriminate yourself.
      “I further wish to advise you that if you refuse to testify or to answer questions relating to the performance of your official duty or fitness for duty, you will be subject to departmental charges which could result in your dismissal from the Police Department.
      “If you do answer, neither your statement or any information or evidence which is gained by reason of such statement can be used against you in any subsequent criminal proceedings.”


author: STOCKARD, Special Judge.

text:
    Michael Patrick MAURATH et al., Respondents, v. Gloria Francis SICKLES et al., Appellants.
    No. 38779.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 12, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Oct. 10, 1979.

      Edward M. Peek, St. Louis, for appellants.
    John L. Sullivan, St. Louis, for respondent.
   STOCKARD, Special Judge.

Will Contest.

The testatrix, Marie M. Jakubowski, died at age 77 leaving two daughters, Doris Pet-ton and Gloria Sickles, proponents of her will, and twelve grandchildren, eight of whom are children of Jean Maurath, a deceased daughter, and who are the contestants of the will. The instructions submitted to the jury the issues of proper execution of the will, the testamentary capacity of the testatrix, and undue influence. The jury returned a general verdict, nine jurors concurring, that the instrument in issue was “not the last will and testament of Marie M. Jakubowski, deceased.” The proponents have appealed. We reverse with directions.

On October 8, 1974, Mrs. Jakubowski executed the document in question which was entitled “Last Will and Testament of Marie M. Jakubowski.” She provided therein that the bulk of her estate should go to her two living daughters, Doris Petton and Gloria Sickles, with specific bequests of 26 shares of Sears-Roebuck stock to each of the eight children of Jean Maurath, and 65 shares to each of her four other grandchildren, the children of Doris Petton and Gloria Sickles, and a lesser number of shares to each of three religious organizations.

In the early part of 1974 testatrix called Mr. James R. Hartung, an attorney who had been recommended to her by the pastor of her church, and stated that her previously employed attorney had died and that she wanted to change her will. Mr. Hartung met with the testatrix and drafted a will for her which she executed on February 19, 1974. We need not set forth in detail its provisions. It is sufficient to say that Mrs. Jakubowski disposed of the bulk of the estate by making equal bequests to each of her three daughters, with the provision that in the event of the death of a daughter, the-bequest to that daughter should go to her children in equal shares. That will also contained specific bequests to each of her twelve grandchildren; 26 shares of Sears-Roebuck stock to each of Jean’s children, and 65 shares to each of Gloria’s and Doris’ children.

Mrs. Jakubowski called Mr. Hartung again about October 1, 1974. She stated that her daughter Jean had died, and as stated by Mr. Hartung, “She wanted * * to take that daughter’s share and divide it among her two living daughters.” Mr. Hartung testified that he discussed with her the consequences if the then existing will was not changed, and that Mrs. Jaku-bowski stated that she did not want “Jean’s share to go to her [Jean’s] children” because “she said that if those kids got that money they would probably give it to their father,” but that she did want the specific bequest to each of 26 shares of Sears-Roebuck stock to remain in her will.

Mr. Hartung testified that no one else was present during his discussions with Mrs. Jakubowski concerning the changes in her will, and that he never discussed the provisions of the will with anyone else.

Mr. Hartung prepared a new will according to the instructions of Mrs. Jakubowski, and at her suggestion arranged with Den-ney and Jane Hunter, husband and wife who were friends of his, to act as witnesses. They accompanied him on October 8, 1974, to Mrs. Jakubowski’s apartment. While Mrs. Jakubowski was seated at the kitchen table and in the presence of Mr. and Mrs. Hunter, Mr. Hartung read the new will to her and explained the changes he had made, and as he did so Mrs. Jakubowski followed him by reading a copy of the will with the aid of a magnifying class. Mr. Hartung then told the two witnesses to stand where they could see Mrs. Jakubowski sign the will, and he told them to read the attestation clause. It is agreed that Mrs. Jaku-bowski did not affirmatively state to the witnesses that “this is my will,” or make a personal request to them to sign the will as attesting witnesses. However, Mr. Har-tung, her attorney, did state to them that the document was her will, and the communication of this knowledge to Mr. and Mrs. Hunter is clearly demonstrated by the circumstances, and then in the presence of Mrs. Jakubowski he requested them to sign the will as attesting witnesses. Mrs. Jaku-bowski, Mr. Hartung and Jane and Denney Hunter each signed the will in the presence of the others.

In a will contest the action is commenced by the filing of a petition by the contestants, but the burden is on the proponents to establish a prima facie case that the instrument was executed and signed by the testatrix as her last will and testament, that the signatures of the attesting witnesses were placed on such paper in her presence and at her request or with her consent, and that at the time she executed the will she was of sound and disposing mind and memory. Gordon v. Burris, 153 Mo. 223, 54 S.W. 546 (1899); Houghton v. Jones, 418 S.W.2d 32 (Mo.1967).

The publication of the will by the testatrix, that is, a declaration that “this is my will,” and the request to the witnesses to attest the will need not be made by the use of any particular words or by express words, but may be evidenced by acts, signs or conduct, and the publication and request to the witnesses may be inferred from the circumstances. Strahl v. Turner, 310 S.W.2d 833 (Mo.1958); Look v. French, 346 Mo. 972, 144 S.W.2d 128, 133 (1940); Hughes v. Dwyer, 546 S.W.2d 733 (Mo.App.1977); Bingaman v. Hannah, 270 Mo. 611, 194 S.W. 276 (1917). In Clark v. Crandall, 319 Mo. 87, 5 S.W.2d 383 (1928), it was ruled that a request by the scrivener to the witness made in the testator’s presence amounted to a request by the testator. The Look case presents a factual situation remarkably similar to this case. There the testator read the document and signed it. Then in his presence and in his view the document was passed to the witnesses and the scrivener indicated to them by gestures where they were to sign, which they did in the presence of the testator and without objection by him. The court said: “It is hard to conceive of a clearer case of implied request. There was no question of fact here upon which a jury could pass,” and “The trial court therefore properly directed a verdict for the proponents, * *

The evidence of the proponents clearly established due execution of the will, and the contestants offered no evidence to the contrary. They contend only that there was no publication of the will by the testatrix or request by her to the witnesses to attest her will. We conclude that in the factual circumstances proponents met their burden of proof as to due execution of the will.

All three of the attesting witnesses testified that based on their personal observations of the testatrix it was their opinion that at the time she signed her will she was of sound mind. None of the contestants’ witnesses expressed an opinion as to the testamentary capacity of Mrs. Jakubowski, and no expert witness on this issue was offered by contestants.

Mrs. Jakubowski was 77 years of age, she had an artificial leg and walked with a cane. Her eyesight was poor but she could see to read, at least with the help of a magnifying glass. She was diabetic and took insulin by self-injection. She also took medicine for hypertension. On three occasions in 1974 she visited her physician for the purpose of a general check-up. At her last visit, September 17, her condition had improved since her previous visit. Her blood-sugar level was normal, and her blood pressure was “normal for a woman her age.” The doctor testified that at that time he did not detect the presence of any fatal illness.

During 1974 Mrs. Jakubowski took care of her apartment, did most of her own cooking and managed her business affairs including the negotiations for a mineral lease on property she owned. She did some of her shopping at the grocery store, but was taken there by her daughter or by friends. Her banker testified that he had known her for 14 years, that she had several outstanding loans at the bank, and that every two or three months she would go to the bank or call him. When the prime rate of interest would fluctuate she would negotiate with him for a more favorable rate of interest on her loan. Her daughter, Doris, would bring her to the bank but he never discussed business with her.

At the time of Jean’s death in September 1974, Mrs. Jakubowski made the “majority” of the arrangements with the funeral parlor, and furnished the needed information for the preparation of the death certificate. She also obligated herself to pay the funeral expenses. The undertaker testified that she recognized people when they came to the funeral parlor, she spoke coherently, and “reminisced old times” with those with whom she used to work. At one time the undertaker observed her approach the casket and talk to Jean, but he added, “that is nothing unusual.”

In addition to the physical condition and age of testatrix, contestants rely on the following evidence to authorize a finding of testamentary incapacity.

Rebecca Hampsten, a contestant, testified that she saw testatrix (her grandmother) visit her (Rebecca’s) mother (Jean) in the hospital in the summer of 1974 about four or five times. She also saw testatrix at the funeral parlor after her mother died in September. At the funeral parlor her grandmother was “upset” and “grief stricken,” but Rebecca testified that under the circumstances she “wasn’t in too good a shape” herself. On October 8, Rebecca and her sister, Kathleen, went to testatrix’ house about 2:00 o’clock in the afternoon. Gloria opened the door and Rebecca and Kathleen went into the living room. After a conversation with their Aunt Gloria, Rebecca and Kathleen left without seeing their grandmother who was in bed. Rebecca saw her grandmother “quite a bit” after that and she talked to her on the telephone the day before she had the stroke which resulted in her death. At one time the testatrix asked Rebecca and her husband “what she should do” about her money, but they did not advise her. At the time of her death Jean owed the testatrix $4,500, and Rebecca testified that she told her grandmother, “Grandma, don’t go getting upset about the forty-five hundred dollars that we owe you, because I will get the money for you. Just don’t be getting upset.” Her grandmother replied, “Well, I’m mot worried about that.” At another time testatrix talked to Rebecca about the possibility of another sister and her husband living with her. When asked if her grandmother had made any reference to “changing wills,” Rebecca testified that her grandmother said, “I don’t know what to do with my money now that Jean is gone,” and that she said that Gloria and Doris would be taken care of by their husbands, but “Jean was her only worry.” Following the death of Jean the testatrix “didn’t feel good,” she “laid down a lot of times” and took “quite a few” pills.

Kathleen Thompson, also a contestant, testified that after she and Rebecca went to her grandmother’s house and were met at the door by her Aunt Gloria, she saw her grandmother at her home and in the hospital. Her grandmother would say, “What shall I do with my money?” She had not previously asked her advice on financial matters. Kathleen did not purport to advise her on this occasion. Instead she said: “Grandma, I don’t know what to tell you what to do. You know, do whatever you want.” Kathleen testified that her grandmother did not “say too many favorable things” about her father, who was divorced from her mother, but she never heard her grandmother say anything derogatory about any of the contestants.

Leo Randy Maurath, a contestant and a brother of Rebecca and Kathleen, was a member of the Air Force and at the time of trial had been in the service four years. He saw his grandmother (testatrix) at the funeral parlor when his mother (Jean) died, and he said “Hi, Gram,” and told her his name, and “she’d say something, and she’d call me by another name, and I guess she just couldn’t — I don’t know if she was that upset or just couldn’t remember who I was.” After the funeral he went to his grandmother’s house and, as he said, “we sat around, I guess everybody just kind of got together and tried to figure out the issues that were, you know, what was going on; after my mom’s death, what was taking place.” He stated that there was only one “major issue” and that was about his sister Ramona. Leo testified that at one time he returned from the Air Force on leave, and every time that he saw his grandmother “she just seemed like she was kind of spaced out, you might say. * * * I couldn’t never seem to get across to her as far as, you know, who I was * * *.”

Randall Louis Maurath, also known as George, was 17 years old at the time of trial. He spent part of the summer of 1974, and until the middle of August, with his grandmother at her house. His cousin and his wife were also there. His grandmother prepared some of the meals, and sometimes his cousin’s wife helped. While there he saw his grandmother “take handfuls at a time” of pills, and she would then “start strumping around, get real groggy” and “go to sleep.” At the funeral parlor after his mother (Jean) died, his grandmother was “upset” and “tore up inside” and she failed to recognize him and called him Tony which was the name of his older brother.

In rebuttal, contestants offered testimony of Yvonne Stilinovic, the sister of Jean’s former husband. She testified that when she entered the funeral parlor after Jean’s death she saw testatrix standing at the casket and she was “very upset” and saying, “Oh, my Ge-Ge, oh, my Jeanie.” Yvonne later went to her and told her who she was. Testatrix then grabbed her hand, but she could not recognize Yvonne because “she couldn’t see you.”

Proponents assign as error the submission to the jury of the issues of due execution of the will and testamentary capacity because there was insufficient evidence to authorize a finding of improper execution or lack of testamentary capacity. Contestants argue that the proponents had the burden of proof as to each of these issues, and that the proof depended in part on oral testimony, and for that reason it would have been improper for the court to direct a verdict for them on either of these issues. They cite only Reeves v. Smith, 468 S.W.2d 713 (Mo.App.1971), which was not a will contest suit.

It has long been the rule in this state that “a court is ordinarily not justified in directing a verdict in favor of the party having the burden of proof, when the evidence relied on consists of oral testimony.” Price v. Bangert Brothers Road Builders, Inc., 490 S.W.2d 53, 57 (Mo.1973). See also Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558 (1931); Schaefer v. Accardi, 315 S.W.2d 230 (Mo.1958); Beezley v. Spiva, 313 S.W.2d 691 (Mo.1958). However, it is equally well established that in a will contest, even though the proponents have the burden of establishing a prima facie case as to due execution, Fletcher v. Ringo, 164 S.W.2d 904 (Mo.1942), and as to testamentary capacity, Houghton v. Jones, supra, when the contestants then fail to present substantial evidence as to either issue, that issue should not be submitted to the jury, Fletcher v. Henderson, 333 Mo. 349, 62 S.W.2d 849 (1933), and to do so over objection constitutes reversible error. Pasternak v. Mashak, 392 S.W.2d 631 (Mo.App.1965). As stated in Houghton v. Jones, supra at p. 39, “The established rule in Missouri is that in the trial of a will contest where the issue of mental incompetency is at issue, the proponents of the will are required to show that at the time the will was executed the testator was of sound mind. The contestants, to make a case for a jury, are then required to come forward and introduce substantial evidence to prove that the testator did not have the mental capacity to make a will.” (Emphasis added.) See also Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381 (1943); Lewis v. McCullough, 413 S.W.2d 499, 505 (Mo.1967). The rationale for this procedure is set forth in 3 Bowe-Parker: Page on Wills § 26.100 as follows: “If the proponents are required to make out a prima facie case and the contestants then have the burden of showing that the instrument is not testator’s will, the case may be dismissed, if the contestants fail to produce sufficient evidence after the proponents have made out a prima facie case. This is explained as a waiver by contestant of the contest.” For cases in which the trial court directed a verdict for proponents after they presented a prima facie case as to either due execution or testamentary capacity or both, and the action was affirmed on appeal, see Lewis v. McCullough, supra; Dela ney v. Coy, 407 S.W.2d 902 (Mo.1966); Winn v. Matthews, 235 Mo.App. 337, 137 S.W.2d 632 (1940); Aaron v. Degnan, 272 S.W.2d 216 (Mo.1954); and Wright v. Stevens, 246 S.W.2d 817 (Mo.1952). For cases in which it was ruled on appeal that it was error to submit to the jury the issue of due execution or testamentary capacity because, after proponents had made a prima facie case, the contestants did not present substantial evidence to sustain their challenge to the will, see Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84 (1937); Pasternak v. Mashak, supra and Glover v. Bruce, 265 S.W.2d 346 (Mo.1954).

Contestants set forth in their brief several circumstances or incidents which they contend constitute substantial evidence of lack of testamentary capacity. We shall set them out followed by our comments as to each.

1. The will was executed by testatrix “merely eleven days” after the death of her daughter and “less than that period of time since she stood by her daughter’s casket repeating her name over and over.”

The fact that testatrix changed her will eleven days after her daughter’s death and the fact that she, a grieving mother, stood by her deceased daughter’s casket and spoke her name will not support an inference of lack of testamentary capacity.

2.At the funeral parlor testatrix failed to recognize her grandson who had stayed with her for a month and half during the previous summer, and she was “confused” as to the identity of another grandson who had returned to the funeral from military service “even after he told her his name,” and attempts by him to carry on a conversation with her were of no avail.

It is admitted that Mrs. Jakubowski had poor eyesight. There is no evidence as to the lighting conditions at the funeral parlor. Also, the conclusions of the grandson concerning his inability to carry on a conversation, without more, permit no inference of lack of testamentary capacity. See particularly Mangan v. Mangan, 554 S.W.2d 418, 422 (Mo.App.1977), where it was argued that the fact that the testator mistook the first names of some of his collateral kindred demonstrated testamentary incompetency. The court stated: “We do not agree; the testator had a great many kinsmen, and he could have had testamentary capacity without knowing whether all of them were alive, and without remembering the names of all his nephews.” Mrs. Jaku-bowski had twelve grandchildren, and one whose name she did not readily remember at the funeral parlor had been absent in the Air Force. There is no evidence that she saw the others regularly or that she usually was able to remember the name of each.

3. “Just before” the grandson left his grandmother’s house after staying with her he observed that she “was really feeling bad.”

This physical condition, without a showing that she was affected mentally, permits no inference of lack of testamentary capacity.

4. After Jean’s death the testatrix asked Kathleen, a granddaughter, “What shall I do with my money?” but she had never asked her for advice before.

This is immaterial to the issue of testamentary capacity.

5. The “state of mind” of the testatrix is “well exemplified” by the testimony of Rebecca Hampsten in quoting her grandmother as saying, “I don’t know what to do with my money now that my Jean is gone,” and that her daughters Gloria and Doris would be taken care of by their husbands and Jean was her only worry.

Contestants do not state in their brief what “state of mind” is exemplified by these remarks. We see no relevancy to these statements and they do not support an inference of lack of testamentary capacity-

6. Randall saw his grandmother “take handfuls of pills,” and Rebecca stated her grandmother took “quite a few pills.”

Without some showing that this medicine had an adverse effect on her mentality this is immaterial to the issue of testamentary capacity.

We conclude that proponents established a prima facie case as to due execution of the will and as to testamentary capacity, and that the contestants failed to present substantial evidence to make a case for the jury as to either issue. Therefore, it was error for the trial court to submit either issue at the request of the contestants to the jury over the objection of the proponents.

The issue of undue influence was also submitted to the jury, and proponents contend that contestants failed to meet their burden of proof as to that issue.

In addition to the facts and circumstances previously set out, contestants rely on the following circumstances.

Mrs. Jakubowski lived alone in an apartment next door to her daughter Doris who worked of days but visited frequently with her mother. There was an unlocked connecting way-between the two apartments. They maintained a joint banking account into which each made deposits and from which both made withdrawals, but a record was kept as to how much of the balance belonged to each. Mrs. Jakubowski wrote and signed checks for ordinary expenses and to make contributions, but on occasions Doris wrote the checks for her. Doris sometimes wrote checks on this account for these purposes. She also helped her mother with her tax returns and would drive her to the bank where she could conduct her own business. Gloria and her mother had the same insurance agent, and shortly after Jean’s death they met with him at Mrs. Jakubowski’s apartment. Mrs. Jakubowski conferred with him about an insurance policy on Jean’s life of which Mrs. Jakubowski was the beneficiary, and Gloria paid her own insurance premium.

On October 8, the day the will was executed Gloria was at her mother’s apartment. Although Mr. Hartung was not to arrive until five o’clock or thereafter, Gloria was there earlier “to have lunch and everything, have it out of the way before Mr. Hartung arrived.” Gloria testified that she did not recall that any of the grandchildren of testatrix were there that day, but Rebecca and Kathleen testified that they went to the apartment about two o’clock to see their grandmother and Gloria met them at the door. Their grandmother was there in bed, but they did not get to see her. Before Mr. Hartung arrived, Doris came from work and she and Gloria were in their mother’s apartment when the will was read by Mr. Hartung and executed by testatrix.

The burden of proving undue influence rests upon the contestants. Martin v. O’Connor, 406 S.W.2d 41 (Mo.1966). By “undue influence” is meant “such influence as destroys the free choice of the person making the will,” MAI 15.03, and to meet this test the exerted influence must be of such strength that the will is not that of the maker but is that of the party exercising the influence. Sweeney v. Eaton, 486 S.W.2d 453, 455 (Mo.1972); Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706 (1931). A presumption arises that the testatrix has been unduly influenced by the beneficiary so charged when the evidence shows (a) that a confidential or fiduciary relationship existed between the testatrix and beneficiary; (b) that the beneficiary has been given a substantial bequest by the will; and (c) that the fiduciary was active in procuring the execution of the will. Simmons v. Inman, 471 S.W.2d 203 (Mo.1971); Switzer v. Switzer, 373 S.W.2d 930 (Mo.1964); Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842 (banc 1943). When supported by substantial evidence, the presumption makes a pri-ma facie case which does not disappear upon the introduction of rebutting testimony but presents an issue for the jury. Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772 (banc 1932); Pasternak v. Mashak, supra.

We shall assume that the first requirement necessary to the presumption is satisfied, at least as to Doris, and both Doris and Gloria received not only a substantial bequest, but a substantial increase over that provided for in the previous will of the testatrix. But, assuming a confidential relation between the testatrix and Doris, and possibly Gloria, yet as stated in Aaron v. Degnan, supra at p. 221, “that fact alone does not raise a presumption of the exercise of undue influence,” citing Loehr v. Starke, supra. See also, Buckner v. Tuggle, 356 Mo. 718, 203 S.W.2d 449 (1947). To invalidate the will there must be evidence from which it may be inferred “that undue influence was present in active exercise and sufficient to destroy the free agency of [testatrix] at the time of making the will, so that it is not in fact [testatrix’] will but that of the proponents.” Aaron v. Degnan, supra at p. 221. See also Baker v. Spears, 357 Mo. 601, 210 S.W.2d 13 (1948); Snell v. Seek, 363 Mo. 225, 250 S.W.2d 336 (1952); Glover v. Bruce, 265 S.W.2d 346 (Mo.1954). An inference of undue influence cannot rest upon a mere opportunity to influence or upon mere suspicion, Baker v. Spears, supra, but there must be substantial evidence that undue influence was in fact exerted. Winn v. Matthews, 235 Mo.App. 337, 137 S.W.2d 632, 636 (1940).

There is no evidence, direct or circumstantial, from which it may be inferred that either Doris or Gloria suggested or even mentioned to their mother that she should change her will after the death of Jean. Neither is there any evidence from which it may be inferred that either Doris or Gloria engaged in any improper activity which was designed to place the idea of changing her will in the mind of their mother. Gloria arrived at her mother’s apartment on the day the will was executed in the early afternoon, apparently to prepare lunch and knowing that Mr. Hartung was to come that evening. But it would have been unnatural for a daughter not to assist her invalid mother in such a manner in the circumstances, and it is pure speculation to assume that her presence constituted undue influence.

Contestants make much in argument that at the time of the execution of the will both Doris and Gloria were present in the room. But, as far as shown by the evidence, the will had previously been prepared by Mr. Hartung according to instructions he received from the testatrix, and he had not discussed the will or its terms with either Doris or Gloria. The mere presence of Gloria and Doris at the time of the execution of the will could have had no effect on what previously had been written into it.

Contestants argue that undue influence may be proved by circumstantial evidence, citing Godsy v. Godsy, 504 S.W.2d 209 (Mo.App.1973), and we agree. In their brief they then refer to the following circumstances which they contend constitutes substantial evidence of undue influence. We shall set forth those circumstances followed by our comments as to each.

1. Doris, the named executrix, was a joint signer on her mother’s checking account which contained commingled funds of Doris and her mother. “The testatrix did not know the balance of the account,” and Doris “prepared her mother’s tax returns” and went to the bank with her to make loans. Doris also had an unsecured loan from her mother, she was present when her mother negotiated a mineral lease, and she helped her mother adjust insurance claims.

We first note that the statement that testatrix did not know the balance of the joint account is not supported by the evidence. The record shows only that Doris helped her mother prepare her tax returns. Because of her physical condition if she went to the bank or any place else someone had to take her.

We consider these circumstances to authorize a finding that a confidential relation existed between Doris and her mother, but these circumstances do not permit an inference of undue influence.

2. “Both Gloria and Doris were given substantial bequests by the new will.”

This is established by the evidence, but it alone does not permit an inference of undue influence, and particularly when the beneficiaries constituted all of the living daughters of testatrix who would be natural objects of her bounty.

3. “Activity in procuring execution of the will was demonstrated by the early appearance of Gloria at her mother’s home on the day of the execution of the will * * *; Gloria’s turning away of the grandchildren when they attempted to visit the grandmother on the day of execution; her apparent lie on deposition that no grandchildren appeared at the testatrix’ home on the day of execution; both daughters were present in the room when the will was executed, one being seated next to the testatrix all during the reading and execution.”

We first note that the evidence does not support a “turning away” in the sense apparently intended. At most it shows that Rebecca and Kathleqn called at the apartment of their grandmother, that they were admitted into the living room by Gloria, but they did not see their grandmother who at the time was in bed. We also doubt it is justified to characterize the statement made by Gloria on deposition as an “apparent lie.” She was asked if she recollected that any grandchildren were there and she replied “No.”

While these circumstances permit an inference of opportunity to influence and perhaps to some would create a suspicion, that is insufficient to authorize an inference of undue influence. Patton v. Shelton, supra; Aaron v. Degnan, supra; Godsy v. Godsy, supra.

4. Contestants assert that the jury “properly considered the testatrix’ weakness of mind at the date of the execution of the will and her susceptibility to influence.” The only circumstance referred to is that of “the testatrix asking one and all ‘What should I do with my money?’ ”

The record does not show that this question was asked by testatrix of “one and all.” The time the question was asked, once of Rebecca and her husband and then of Kathleen, was shortly after the death of Jean. No advice was given. We find no evidence of “weakness of mind” on the part of the testatrix, and no evidence that she was “susceptible” to influence. In fact, the evidence considered as a whole shows a strong active business woman with a will and mind of her own, who admittedly and understandably was grieved at the death of her daughter.

5. “The opportunity of the beneficiaries to exercise influence was ample.” Contestants then point out that Doris lived next door and visited her mother frequently.

The proof of undue influence cannot “rest upon a mere opportunity to influence, or upon a mere suspicion.” Patton v. Shelton, supra, at p. 712. There must be substantial evidence that undue influence was in fact exerted. Winn v. Matthews, supra.

6. The will of testatrix made “an unnatural disposition of [her] property in cutting out her grandchildren from their mother’s share when it is admitted she loved them all.” Contestants assert it is important that the testatrix had stated that both Gloria and Doris had husbands to care for them.

The fact that the testatrix made an “unequal or even unjust distribution of [her] property does not of itself support an inference of undue influence. A [person] has' the right to will [her] property to whomsoever [she] chooses, * * Mangan v. Mangan, supra at p. 421. “The law does not * * * preclude [a] parent if in the exercise of his free will, from bestowing his bounty on one child more generously than on his other children.” Burgdorf v. Keeven, 351 Mo. 1003, 174 S.W.2d 816, 820 (1943). In Maddox v. Maddox, 114 Mo. 35, 21 S.W. 499, 502 (1893), it was stated that “the fact that unjust discrimination was made, coupled with other facts, of old age and great debility of body, are not sufficient to raise an inference that undue influence was exerted by one who received a greater portion of the estate. The tests are mental capacity and free agency. When these exist the testator has the right, as it said, ‘to make an unreasonable, unjust, injudicious will; and his neighbors have no right, sitting as a jury, to alter the disposition of his property simply because they may think the testator did not do justice to his family connection.’ ” See also Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860 (1928).

7. “The new will was a sudden change from the old will, coming just a week to ten days after Jean’s death.”

We find nothing in this circumstance to authorize an inference of undue influence.

None of the above circumstances enumerated by contestants authorize an inference of undue influence; nor do they do so when considered collectively. We are therefore constrained to conclude that the trial court erred in submitting the issue of undue influence to the jury.

The judgment is reversed and the cause remanded with directions that the trial court enter judgment that the instrument in question is the last will and testament of testatrix.

DOWD, P. J., and SNYDER, J., concur.


author: DIXON, Presiding Judge.

text:
    Hobert W. FISCHER, Plaintiff-Appellant, v. Allan R. BROWNE and Robert A. Dakopolos, Defendants-Respondents.
    No. KCD 30124.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Rehearing Denied Sept. 4, 1979.

      Hobert W. Fischer, pro se.
    Don B. Roberson, Robert G. Sachse, Kansas City, for respondent Browne; Shughart, Thomson & Kilroy, Kansas City, of counsel.
    Before DIXON, P. J., TURNAGE and KENNEDY, JJ.
   DIXON, Presiding Judge.

This appeal is from an order of the circuit court which sustained both of the defendants’ motions for summary judgment. The appellant, plaintiff below, filed a petition for malpractice against Allan R. Browne, respondent, and Robert A. Dakopolos, respondent, both practicing attorneys. The claim relates to a suit filed on behalf of plaintiff by defendant Allan R. Browne against plaintiff’s former employer, the Missouri Pacific Railroad Company, and plaintiff’s union, The Brotherhood of Railroad Trainmen. The parties will be referred to as they were designated in the circuit court.

Plaintiff’s petition was filed pro se and his appeal has been prosecuted pro se. A respondent’s brief has been filed on behalf of defendant Allan R. Browne, but no brief has been filed on behalf of respondent, Robert A. Dakopolos. The brief of the plaintiff is totally inadequate to comply with the rules of procedure concerning briefs. Despite the clear and total violation of Rule 84.04 and all of its subparts, the defendants’ motion to dismiss the appeal will be denied. Under the provisions of Rule 84.08, this court will waive compliance with the provisions of Rule 84.04 and consider the appeal on its merits.

If the plaintiff’s pro se petition stood alone, it would be impossible to ascertain the basis for his claim. However, both defendants failed to file a motion to dismiss and engaged in extensive discovery resulting in a fairly clear definition of plaintiff’s claims. Simply put, the plaintiff claims that the defendant, Allan R. Browne, was negligent in failing to pursue plaintiff’s administrative remedies under a collective bargaining agreement before filing suit. As to the defendant, Robert A. Dakopolos, plaintiff asserts he was negligent in failing to take an appeal in the underlying litigation after defendant, Allan R. Browne, withdrew from the case and defendant, Robert A. Dakopolos, undertook the representation. To understand the claims of the plaintiff, it becomes necessary to give an extensive chronological review of the circumstances of the initial claim for wrongful discharge and the various legal proceedings which followed.

This recital of proceedings has been made difficult by the various exhibits filed by the plaintiff which have no relevancy to the issues. One hundred eleven exhibits were filed originally, consisting primarily of letters from the plaintiff to various officials seeking assistance with his legal problems and correspondence with federal agencies concerning his claim under the federal law affecting railroad employees. Plaintiff has likewise filed what purports to be complete copies of the court files in the underlying circuit court litigation, but they are not complete nor are they in order. To be sure that the chronology of events recited herein is correct, the original court files have been examined fully. The following statement of fact is taken both from the materials supplied by the plaintiff in connection with this appeal, and from the original court files of the Jackson County Circuit Court.

On February 9, 1964, anonymous calls were made to railroad officials from a phone located in the freight yard in Kansas City. An investigation was made on February 11,1964 concerning the responsibility of the plaintiff for the telephone call. Upon the basis of that investigation, the plaintiff was dismissed from the service of the Missouri Pacific Railroad.

Pursuant to the provisions of the union contract, the Brotherhood of Railroad Trainmen proceeded to process a grievance for plaintiff. This was disallowed by the division superintendent and a subsequent appeal was made to the general manager. In accordance with the procedures of the union contract, the general chairman of the union and the general manager of the railroad were the appropriate parties to that appeal. In December of 1964, the union withdrew its support for the grievance. There were apparently other procedures available for review of the claimed grievance, a detailed recitation of which is unnecessary for the purposes of this opinion.

The plaintiff then contacted Allan R. Browne who undertook to represent him in an appeal within the union to reverse the union’s decision to abandon the grievance. Mr. Browne did, in fact, appear before the appropriate tribunal of the union, and that board refused to take any further action in connection with the plaintiff’s grievance against the Missouri Pacific.

Mr. Browne then filed a lawsuit in the Circuit Court of Jackson County, Missouri, No. 676763, “Hobert W. Fischer v. The Brotherhood of Railroad Trainmen, et al.,” the general theory of which was an action in contract against the union for failing to provide plaintiff with appropriate representation as provided in the union agreement. That case was removed to the United States District Court for the Western District of Missouri and, thereafter, was dismissed without prejudice.

Mr. Browne then filed a subsequent action, No. 707638, “Hobert W. Fischer v. Brotherhood of Railroad Trainmen and Missouri Pacific Railroad Company,” which was removed to the Federal District Court but, on order of the Federal District Court, was remanded to the Circuit Court of Jackson County, Missouri. That case was in contract against the union and for wrongful discharge against the railroad. The case continued upon the docket of the Jackson County Circuit Court and was at various stages handled by various of the circuit judges in Jackson County.

In the year 1969, settlement negotiations were undertaken between the attorneys for the Missouri Pacific Railroad and Mr. Browne. Mr. Browne communicated to the plaintiff an offer to settle and compromise the litigation for $2,000, which the plaintiff refused to accept.

On February 20, 1970, Mr. Browne wrote to the plaintiff and informed him that he was withdrawing from the case. That withdrawal was accomplished by a written withdrawal consented to by the court on March 3. Mr. Browne had no further connection with the litigation. There can be no doubt that Mr. Browne’s withdrawal was clearly and unequivocally communicated to the plaintiff.

The defendant Dakopolos apparently accepted employment by the plaintiff at some point after Mr. Browne withdrew, but did not enter a formal entry of appearance until shortly before final disposition of the case. The file reflects that despite defendant Dakopolos’ failure to formally enter his appearance, the attorneys for the union and for the railroad were aware of his representation, as was the circuit court. Mr. Dako-polos was informed of the various proceedings in the case by service of the necessary papers upon him.

By August of 1970, the case had reached the docket of Judge Stubbs in the circuit court and was pending upon motions for summary judgment filed by the railroad and the union. These motions had been filed and briefed by the parties and were under submission to Judge Stubbs. On August 14, 1970, Judge Stubbs communicated with all of the attorneys in the case his order of that date sustaining the motions for summary judgment and requesting that appropriate judgment entries be prepared in the case. Those judgment entries were filed on September 22,1970. The order and judgment entry is dated and signed by the judge as entered on that date, but it is clear from the original entry in the case that he determined and ruled the motions for summary judgment on August 14, 1970 and so advised all of the attorneys in the case.

The issue raised by the motions for summary judgment was whether or not the plaintiff had exhausted his administrative remedies before filing his suit for wrongful discharge and for breach of contract. The merits of Judge Stubbs’ ruling do not need to be examined here, nor is any implication intended with respect to the propriety or correctness of that order by this court.

As noted, the plaintiff filed his pro se action for damages against the defendants, Allan R. Browne and Robert Dakopolos, on September 19, 1975. Both of the defendants filed motions for summary judgment in that suit, which is the subject of the instant appeal. The matter came on before Judge O’Leary for determination of the issues raised by those motions which were, that the pleadings of the plaintiff did not state the cause of action and that the cause of action attempted to be asserted was barred by § 516.100 RSMo 1969. By that time, an attorney had entered his appearance in the case representing the plaintiff. In December of 1977, Judge O’Leary entered an order denying the motions for summary judgment. Judge O’Leary’s order makes it clear that he was not considering the ground of failure to state a cause of action because he believed that the defendants had failed to file a motion to dismiss under Rule 55.27 to properly present that issue to the court.

The cause was then set for trial in the division of Judge Marsh and, thereafter, was transferred to Division 14 and, in February of 1978, a hearing was held before Judge Meyers. Evidence was presented by the plaintiff, and various exhibits were introduced by the defendants. Judge Meyers then entered an order sustaining the motions for summary judgment on the sole ground that the plaintiff’s cause of action was barred by §§ 516.100 and 516.120 RSMo 1969.

At the hearing before Judge Meyers, the defendants objected to plaintiff’s testimony on the grounds that he had not contested the affidavits filed by defendants in support of their motions for summary judgment, but Judge Meyers permitted the plaintiff to testify. The substance of this testimony constituted an admission by the plaintiff that his claim against Allan R. Browne was predicated upon Browne’s failure to pursue his administrative remedies for his dismissal by the Missouri Pacific thus causing Judge Stubbs to sustain the motions for summary judgment in that litigation. The plaintiff further admitted that Browne had had no connection with the case since Browne’s withdrawal in early 1970, some months prior to the order by Judge Stubbs.

Before undertaking to determine the propriety of Judge Meyers’ order sustaining the motions for summary judgment on the theory that the plaintiff’s claim was barred by the statute of limitations, some discussion of the appropriate and controlling legal principles is necessary. A statute of limitations constitutes an absolute bar to an action, however meritorious, if the appropriate period of limitations has elapsed. There can be no dispute that the period of limitation that applies to this case is that prescribed by § 516.120, a period of five years. The critical issue in this case, as in most cases involving the statute of limitations, is the interpretation and application of § 516.100, which reads as follows:

“516.100. Period of limitation prescribed. — Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; provided, that for the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.”

The quoted language declares that the period of limitations begins “when the damage resulting therefrom is sustained and is capable of ascertainment.” That language as it applies to causes of action for malpractice by attorneys has been interpreted and applied by the Supreme Court of Missouri in Jepson v. Stubbs, 555 S.W.2d 307 (Mo. banc 1977). In that case, the plaintiff argued that the statute of limitations should not begin to run until the discovery by a plaintiff that his attorney had committed an act of malpractice. The Supreme Court held that the language of § 516.100, quoted above, established a “capable of ascertainment” test for the application of statutes of limitation. That test is set forth in Chemical Workers Basic Union v. Arnold Savings Bank, 411 S.W.2d 159 (Mo. banc 1966), where the court also rejected the argument that the statute of limitation should run upon discovery of the harm. The court in Jepson, supra at 313, pointed out that the legislature had, in fact, provided for a discovery test in cases of fraud, § 516.120(5) and in § 516.105 for medical malpractice and that if the legislature intended for a discovery theory or test to be applied to actions against attorneys, it would have so provided. The court in Jepson pointed out that the court was without authority to rewrite the statute and provide a different test in the special case of malpractice by attorneys. Thus, put in plain and simple language, the question becomes whether or not the damages which plaintiff claims he received were capable of ascertainment more than five years prior to September 19, 1975, the date upon which he filed his lawsuit against defendants Browne and Dako-polos. Upon the authority of the cited cases, the discovery of the damages by plaintiff is immaterial.

As to the defendant, Allan R. Browne, it is clear that the plaintiff’s claim is that Browne failed to properly pursue the administrative remedies available to the plaintiff resulting in Judge Stubbs’ ruling of August 14, 1970, sustaining the motions for summary judgment filed by the railroad and the union against the plaintiff’s claim for wrongful discharge and breach of contract. While it might be argued that the alleged damages from such action by the defendant Allan R. Browne were ascertained as soon as the motions for summary judgment were filed — since the motions clearly and unequivocally raised the issue and the plaintiff was personally served — that early date need not be considered in this case. Under the facts of this case, it was clear that the claimed damage was capable of ascertainment when Judge Stubbs’ order sustaining the motions for summary judgment was entered on the 14th of September, 1970.

For the limited purpose of determining the propriety of the trial court’s action in finding that the statute barred plaintiff’s claim, it has been assumed that some action or inaction of Allan R. Browne constituted negligence. That assumption should, in no way, be interpreted as a holding by this court that such negligence existed or that plaintiff suffered any damage. To the contrary, the record demonstrates that Allan R. Browne was a zealous and competent advocate for the plaintiff. Thus, even if an assumption of negligence be indulged, the claimed damages were ascertainable on September 14, 1970. The filing of plaintiff’s malpractice action five years and five days later, on September 19, 1975, was barred by the statute of limitation.

The claim of the plaintiff with respect to defendant Dakopolos’ failure to perform his duties as the plaintiff’s attorney relates to the failure to file a notice of appeal and perfect an appeal on behalf of the plaintiff from Judge Stubbs’ order of August 14, 1970. No damage would have been sustained by the plaintiff for this particular claim of negligence on the part of his attorney until the time for filing of an appeal from Judge Stubbs’ order had expired. The order became a final judgment on September 14, 1970, and the time for filing a notice of appeal would have expired on September 24, 1970. Therefore, the plaintiff’s cause of action did not accrue until that date. Upon that basis, the plaintiff’s claim against the defendant Dakopo-los is not barred by the 5-year statute of limitations since his cause of action was filed on September 19, 1975, less than five years from the date when that cause of action accrued and the damage, if any, was sustained. Again, it must be noted that this opinion is not an expression by this court that Robert A. Dakopolos was negligent or that plaintiff was damaged. The determination of those issues must await the trial of the issue.

The judgment of the Circuit Court sustaining the motion of Allan R. Browne for summary judgment is sustained, and the judgment of the Circuit Court sustaining the motion for summary judgment filed by Robert A. Dakopolos is reversed. The cause is remanded to the Circuit Court for further proceedings on plaintiff’s claim against the defendant Robert A. Dakopolos.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Arthur C. ANDERSON, Appellant, v. PERSONNEL ADVISORY BOARD of the State of Missouri et al., Respondents.
    No. 30224.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 4, 1979.

      Dale C. Doerhoff, Cook, Vetter & Doer-hoff, Jefferson City, for appellant.
    John D. Ashcroft, Atty. Gen., Terry C. Allen, Asst. Atty. Gen., Jefferson City, for respondents.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment in action for judicial review of a decision of the Personnel Advisory Board of the State of Missouri sustaining the discharge of Arthur C. Anderson from a merit system position at the Missouri Training Center for Men at Mob-erly.

In this court, the parties join issue on whether or not appellant was dismissed by an “appointing authority,” within the meaning of Section 36.380, RSMo 1978, which provides, in part: “An appointing authority may dismiss for cause any employee in his division occupying a position subject [to the State Merit System Law].” Section 36.020(1) defines “Appointing authority” as “* * * an officer or agency subject to this law having power to make appointments; * * *

Arthur C. Anderson was employed at the Missouri Training Center for Men (MTCM) at Moberly as a Corrections Officer I, a position subject to the State Merit System Law. He was a tower guard at MTCM and was dismissed after two escapes occurred near his tower on February 15 and February 22, 1977.

On March 3, 1977, Carl White, Superintendent of MTCM addressed a letter to Anderson, receipt of which was acknowledged March 4, advising him that he had recommended to the Director, Division of Corrections, and the Personnel Officer for the Division, that Anderson be removed from his job for “failure to perform the duties of Corrections Officer I.” The letter detailed the facts upon which the charge was based and notified Anderson that he had ten days in which to reply to the charges. Anderson appeared before the Division’s Review Committee and presented testimony in his behalf. The committee recommended that Anderson be suspended.

On March 14, 1977, Edward E. Haynes, Acting Director of the Division of Corrections, addressed a letter to Anderson, informing him that he had considered White’s report of the escapes and Anderson’s testimony before the Review Committee and that he agreed with White’s recommendation that Anderson’s services as a Corrections Officer be terminated.

On March 21, 1977, Richard C. Sommer, Personnel Officer of the Division of Corrections, addressed a letter to Anderson, notifying him of his dismissal effective March 25, 1977. This notice was served on Anderson.

Anderson requested and received a hearing before the Personnel Advisory Board, as provided by Section 36.390(5).

At the outset of the hearing, counsel for Anderson stated that one of the questions raised was whether or not Anderson had been dismissed by the “appointing authority.” Counsel stated Anderson’s position that the appointing authority in the circumstances was the Director of the Department of Social Services. In its conclusions of law, the Board, in sustaining the dismissal, stated that the Director of the Division of Corrections was the appointing authority and that the notice by the personnel officer acting for the Division Director satisfied the requirement that notice of dismissal be given by the appointing authority.

The circuit court on appeal by Anderson found the order of the Board to be “lawful, reasonable, proper, and * * * based on competent and substantial evidence upon the whole record” and affirmed the Board’s order.

In this court, the first contention of appellant is that he was not discharged by the appointing authority and that the trial court erred in affirming the Board’s order based upon the erroneous conclusion that Haynes as Acting Director of the Division of Corrections was the appointing authority-

The question thus posed arises by reason of the reorganization of the executive branch of the state government following the amendment to Section 12 of Article IV, Constitution of Missouri, 1945, and adopted August 8, 1972. Laws of Mo., 1971 — 1972, p. 1049. That amendment established “a department of social services.” Section 13.15 of the Omnibus State Reorganization Act of 1974 transferred all the powers, duties and functions of the department of corrections to the department of social services. Appendix B, RSMol978. The Missouri Training Center for Men had previously been established as an institution within the Department of Corrections. See § 216.367, RSMol969.

Appellant’s principal reliance is upon Section 19 of Article IV, Constitution of Missouri, 1945, as follows: “The head of each department may select and remove all appointees in the department except as otherwise provided in this constitution, or by law.” The appellant contends that there is no other provision of law granting appointive power for the Division of Corrections and, therefore, under the constitutional provision, the appointing authority for employees of that division is the Director of the Department of Social Services.

Respondents rely upon the provisions of the Omnibus Reorganization Act, supra, to the effect that, upon a transfer type II, the mode of transfer of the Department of Corrections to the Department of Social Services, the department director is given “supervision” of “* * * the employment and discharge of employees, except as otherwise provided in this act; * * * § 1.7(l)(b). A further significant provision of this subparagraph reads as follows: “The method of appointment under type II transfer will remain unchanged unless specifically altered by this act or later acts.”

Respondents then point to Section 13.15 of the Omnibus Reorganization Act which provides, in part:

“All the powers, duties and functions of the department of corrections, chapter 216 RSMo and others, are transferred by type II transfer to the department of social services and the department of corrections is abolished. The director of the department of social services shall appoint a director of the division of corrections who shall appoint a deputy director of the division of corrections, both of whom shall be trained and experienced in penal administration. The director of the division shall have all the powers, duties and functions vested in the director of the department of corrections and the director of the division shall receive the compensation provided by law for the director of the department of corrections.

Respondents turn to Section 216.115, RSMo 1969, which provided:

“1. The director of the [division] of corrections shall have general supervision, management and control of the institutions within the division. It shall be his duty to investigate the management and conduct of the penal and correctional institutions, and to advise the governor and the general assembly as to any improvements that might be made therein for efficiency, economy and the general well-being of the inmates and the institutions.

“2. The director shall set forth the duties and responsibilities of all superintendents, officers, assistants and other employees of the [division]; and may require reports from the wardens, superintendents or other officers as to their conduct and management of the institutions under their supervision.

“3. The director shall make such rules and regulations, not in conflict with the laws of this state, as he may deem proper for the government and management of the institutions under the jurisdiction of the [division].”

Respondents contend that this general grant of power to the division director is an exception provided by law allowing the division director to select and remove appointees, within the meaning of the constitutional provision.

Inexplicably, both appellant and respondents appear to have overlooked express statutory provisions dealing with personnel. At least, neither party has referred to such provisions.

Thus, Section 216.215, RSMo 1969, established a “Division of Administration” within the Department of Corrections. The division of administration was given “* * * general supervision over the custody, care and discipline of all inmates and the management and maintenance of all institutions under the jurisdiction of the [division].”

Section 216.220 provided:

“The chief administrative officer of the division of administration shall be the director of the department of corrections and he shall have administrative control of the institutions, personnel and activities of the division.”

Section 216.230 provided:

“1. The warden or superintendent of each institution shall, with the approval of the director of the division of administration and in conformance with the provisions of this and other laws, appoint assistants and other employees necessary to the proper conduct of the institution of which he or she is warden or superintendent.

“2. The warden or superintendent of each institution shall appoint with the approval of the director of the division of administration and in conformance with the provisions of this and other laws, a qualified employee as classification director whose duty it shall be to serve as secretary to the classification committee and to perform such other duties in connection with the classification and assignment of prisoners as may be assigned to him by the warden, superintendent or classification committee of the institution.”

(In accordance with the Omnibus Reorganization Act, the 1978 Revision of these statutes has substituted “director of the [division] of corrections” for “director of the department of corrections.”)

Viewing these provisions in the light of the Omnibus Reorganization Act, the appointing authority for the MTCM is the superintendent of that institution, acting with the approval of the director of the division of corrections as director of the section of administration. § 216.230, supra.

Appellant’s argument that all of the duties of the superintendent of MTCM were transferred by the reorganization act to the Director of the Department of Social Services is without merit. “Powers, duties and functions” of the department of corrections were transferred to the department of social services but the effect of such transfer was not to transfer all of the powers of the designated officers of the department of corrections to the director of the department of social services. Another layer of supervision was imposed upon superintendents, etc., but their authority was not terminated.

In view of the above provisions, it must be concluded that appellant received adequate notice of the termination of his services. The Superintendent of MTCM is the appointing officer for purposes of Section 36.380. His exercise of authority to terminate employees would be subject, as is the power of appointment, to approval of the Director of the Division of Corrections. White, the Superintendent, notified appellant that he would recommend to the Director that appellant’s employment be terminated. The Director notified appellant that he agreed with the Superintendent’s recommendation. Appellant was not entitled to notice or other action on the part of the Director of the Department of Social Services. Although the Board’s conclusion that the Division Director was the appointing authority is not sustainable, the requirements of the personnel law were substantially met and the Board’s decision is not to be overturned on this ground.

Appellant has cited cases from other states which he argues support his position here. Inasmuch as the problem is one of statutory construction and application, what other states have held under their particular statutes is not helpful.

Appellant’s contention that he was not given a written statement of the reason for his dismissal which complied with the requirement of Section 36.380, RSMo 1969, as applied in Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138, 141-142[1, 2] (Mo. banc, 1974), is without merit. Sommer’s letter, accompanied by a copy of Haynes’ letter, was served on appellant March 22, 1977. It notified him that his employment was terminated effective at the close of work March 25, 1977. Thus he was given notice of termination before the effective date and Haynes’ letter gave the reasons for the dismissal.

The Board summarized its conclusion as follows:

“Arthur C. Anderson did not satisfactorily perform the duties of a Corrections Officer I on February 15,1977. He observed, or with due diligence was in a position to observe, two inmates scaling the zone fence on February 15, but did not take action until they had crossed the road, scaled the inner-perimeter fence, and dropped to the ground. This action would have taken a substantial period of time, enough for Anderson to shout a warning, fire at least one shot, and contact the Control Center by using either the telephone or intercom. It is also noted that Anderson had been warned about a possible escape attempt shortly before it occurred. Finally, Anderson had been instructed on how to clear a jammed weapon but did not attempt to do so by changing the magazine, even though two additional magazines were close at hand within the tower.

“Anderson’s failure to attempt to clear the weapon on February 22 and to take effective action to prevent an escape is more serious because he contends he faced the same problem one week earlier. It is further noted that shortly after the February 22 escape, the Assistant Superintendent quickly fired three rounds from the weapon Anderson contends jammed, without any jams or malfunctions. Anderson made conflicting statements on February 23 and February 24 as to what he observed on February 22. Finally, the investigation of the February 22 escape indicated that the perimeter fences had been cut at ground level and that six inmates were missing. For these reasons, the Board finds that Anderson failed to satisfactorily perform the duties of a Corrections Officer I on February 15 and on February 22, 1977, and that his dismissal was proper under the Merit System Law.”

Appellant argues that his dismissal was not for “cause” because the action attributed to him did not amount to “personal misconduct.” He relies upon State ex rel. Eckles v. Kansas City, 257 S.W. 197 (Mo.App.1923) as holding that dismissal for cause calls for “personal misconduct.” In that case the court did state (257 S.W. at 200): “Discharge for the ‘good of the service’ or ‘for cause’ imply [sic] some personal misconduct or fact, rendering the incumbent’s further tenure harmful to the public interest.” Here the board’s finding supports the conclusion that appellant’s further tenure “would be harmful to the public interest” by reason of his failure to perform properly the duties of his position. The board’s order properly found that the dismissal was for cause.

Judgment affirmed.

All concur.


author: MANFORD, Judge.

text:
    CONSOLIDATED CABS, INC., Appellant, v. CITY OF KANSAS CITY, Missouri, Respondents.
    No. 30299.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    As Modified on the Court’s Own Motion Sept. 4,1979.
    Gary E. Lowe, Kansas City, for appellant.

      Aaron A. Wilson, City Atty., Dan G. Jackson, III, Asst. City Atty., Kansas City, for Kansas City, Missouri and Keith W. Graham.
    Larry L. Brummet, Kansas City, for in-tervenor William P. Dillard, Jr.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from circuit court order denying appellant’s petition for review.

Appellant raises two points on appeal. First point alleges the trial court erred in finding that the Small Business Administration (hereinafter referred to as the S.B.A.) was a “Holder of Permits” as required by Kansas City, Missouri Rev. Ordinances, Chapter 33 (hereinafter referred to as Chapter 33); and the circuit court erred in finding appellant had no legal standing to pursue this cause of action because of § 351.535, RSMo 1978.

Appellant is a corporation operating a taxicab service in the metropolitan area of Kansas City, Missouri. The operation of taxicab services within the corporate limits of respondent city, Kansas City, Missouri, is regulated by Chapter 33. As part of the regulatory process, taxicab permits are issued annually to applicants approved by the city.

Each year, appellant received renewal of 24 taxicab permits from the city. On October 12,1967, appellant obtained a loan from the Small Business Administration for the sum of $53,000. As proof of the indebtedness, appellant executed its promissory note and a security agreement which pledged collateral for the loan, and said collateral included the 24 taxicab permits.

Effective January 1,1975, appellant’s corporate charter was forfeited by the Missouri Secretary of State pursuant to §§ 351.525 and 351.535, RSMo 1978. Even though appellant’s charter had been forfeited, respondent city continued to renew the 24 taxicab permits.

Appellant apparently suffered sufficient financial loss to cause it to file a voluntary petition in bankruptcy. This cause was filed in the United States District Court, Western District of Missouri, and on October 2, 1973, appellant was adjudicated a bankrupt.

The bankruptcy court ordered appellant’s secured creditors to take possession of items subject to their security interest. The S.B.A., under this order, took control of the 24 taxicab permits. The S.B.A. then advertised and held a sale of the assets of appellant, including the 24 taxicab permits.

In response, appellant filed suit against respondent city and the S.B.A., asking for declaratory judgment prohibiting the sale of the taxicab permits. Appellant contended such sale is a violation of Chapter 33, § 33.30, which provides:

“No permit issued under the provisions of this code shall be transferred except after submission of an application pursuant to section 33.27 and grant of such application following a hearing thereon in accordance with section 33.28. The applicant for such transfer shall file with his application the consent, in writing, of the former holder of such permit and shall comply with all the terms and provisions of this code.”

This cause was removed to the United States District Court, Western District of Missouri, and in entering its order dismissing appellant’s cause with prejudice, the U.S. District Court concluded that appellant’s claim was subject to the defense of collateral estoppel because it was the same issues and the same parties and included matters which could have been adjudged in the bankruptcy proceedings. The court held appellant’s failure to appeal the order of the bankruptcy court in transfer of the interest in the 24 permits could not again be litigated. The United States Circuit Court of Appeals, 8th Circuit, affirmed the U.S. District Court ruling. In essence, the United States District Court ruled the 24 permits and all interests therein were transferred to the S.B.A. under the order of the bankruptcy court. (See Consolidated Cabs, Inc. v. City of Kansas City, Missouri et al., 8th Cir., 566 F.2d 1178.)

On February 9, 1978, respondent city, through its officer, Keith Graham, Administrator of Taxicabs and Livery Vehicles, Transportation Department, conducted a hearing in the matter of the transfer of the 24 taxicab permits from appellant to inter-venor, Dillard Cab Company. The administrator found the transfer valid and ordered the permits transferred. From that order, appellant filed its petition for review of same in the circuit court. The circuit court upheld the order of the administrator, finding that the S.B.A. was a “holder of permits” under the ordinance of the city and that the appellant had no legal standing to bring the present action within the meaning of § 351.535, RSMo 1978.

On this appeal, our review under Chapter 536, RSMo 1978 is limited. Our function is to determine whether the decision of the administrative agency was supported by substantial and competent evidence. The reviewing court is not permitted to weigh the sufficiency of the evidence or to substitute its decision for that of the agency. See Greene County v. Hermel, Inc., 511 S.W.2d 762 (Mo.1974), appeal after remand, 564 S.W.2d 888 (Mo. banc 1978).

Careful scrutiny of the transcript, exhibits and the proceedings in the federal courts leads to the inescapable conclusion that there was substantial and competent evidence for the Administrator of Taxicabs and Livery Vehicles, Transportation Department’of and for the City of Kansas City, Missouri and the circuit court of Jackson County to conclude the S.B.A. was a “Holder of Permits” and that appellant had no standing to bring this action for review within the meaning of § 351.535, RSMo 1978.

The record clearly establishes the federal bankruptcy court ruled the S.B.A. acquired title and interest in the 24 permits, and inherent therein was the power to transfer said permits to a bona fide purchaser. Appellant did not challenge that order and under the decision of the United States District Court, affirmed by the Circuit Court of Appeals, 8th Circuit, appellant was estopped from making a collateral attack upon that order.

As to its standing, the record is completely supportive of the conclusion that appellant has no standing to sue or be sued within the meaning of § 351.535, RSMo 1978 because of the forfeiture of its charter effective January 1, 1975.

As to the question of laches or estop-pel premised upon the. continued issuance of the 24 permits, it must be pointed out that during this time, there existed pending litigation between the same parties in another lawsuit. During this period, the 24 permits continued to be issued to appellant by respondent, and as regards the parties relative to the permits, this amounted to nothing more than maintenance of the status quo by the parties pending this litigation.

Likewise, during this same period, appellant’s corporate status was forfeited under and pursuant to § 351.535, RSMo 1978. There followed the petition for review and from that proceeding, a finding was made by the trial court that appellant had no standing within the meaning of § 351.535, RSMo 1978.

Appellant now contends that since respondent continued to issue the 24 permits, even subsequent to the forfeiture of appellant’s charter, respondent is estopped to raise the question of appellant’s standing.

The trial court, under all the evidence, properly found appellant had no bona fide standing and the mere action by respondent in continuing to issue the 24 permits cannot be now construed as an estoppel.

Equitable estoppel has been defined in White v. Smith, 440 S.W.2d 497 (Mo.App.1969). This case, at 503, states, “ ‘To constitute an estoppel in pais the party against whom it is claimed must have done some act or pursued some course of conduct with knowledge of the facts and of his rights and thus have misled the other party to his prejudice.’ ”

The evidence fails to show that appellant was misled or prejudiced in any way by the mere continued issuance of the 24 permits, which would bring such action within the doctrine of estoppel.

The order of the circuit court is in all respects affirmed.

All concur.

      . “No corporation shall maintain an action in any court of this state for the collection of bills or accounts payable or for the enforcement of a contract, made while such corporation is in suspension, or after the forfeiture of its certificate, or certificate of authority under the provisions of this chapter, unless it shall have first been reinstated, or the forfeiture entered against it rescinded as in this chapter provided.” (§ 351.535, RSMo 1978)


author: PER CURIAM: PREWITT, Judge,

text:
    PHELPS COUNTY BANK, Plaintiff-Respondent, v. MODERN SECURITY LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 11050.
    Missouri Court of Appeals, Southern District, En Banc.
    Sept. 4, 1979.
    Stephen S. Duncan, Lorch & Ramshur, Piedmont, for plaintiff-respondent.
    W. H. Thomas, Jr., Routh, Thomas, Birdsong & Hutton, Rolla, for defendant-appellant.
   PER CURIAM:

Plaintiff, as assignee of an insurance policy insuring the life of one Winfred Jenkins, sued defendant, the alleged insurer, for “judgment that said policy of insurance be adjudged to be in full force and effect and a valid and binding contract upon defendant.” Following trial to the court and after entering its “Findings of Fact, Conclusions of Law and Order,” the trial court on April 27, 1978, entered “Judgment”, the concluding paragraphs of which read: “WHEREFORE, It Is Ordered, adjudged and decreed by the Court that defendant’s policy of insurance number 118047 insuring the life of Winfred Jenkins is adjudged in full force and effect and a valid and binding contract upon defendant, conditioned upon payment by plaintiff to defendant of One Thousand Five Hundred Thirty-Nine Dollars ($1,539.00) for premiums for coverage through May 6, 1978. IT IS FURTHER ORDERED that the above described payment by plaintiff to defendant must be tendered by Cashier’s check through the Clerk of this Court within Thirty (30) days following the date of this Order. Costs taxed against defendant.” (Our emphasis).

Defendant appealed from the foregoing “Judgment Order” under date of May 25, 1978. However, through a series of motions for extension of time granted in the trial court and this court, the transcript on appeal (consisting of only 122 pages) was not filed here until August 3, 1979.

“The right of appeal shall be as provided by law.” Rule 81.01, V.A.M.R. As apropos here, § 512.020, RSMo 1978, Y.A.M.S., gives an aggrieved party the right to appeal only “from any final judgment in the case,” and this court, sua sponte, is obligated to determine if such a judgment has been entered and, if not, to dismiss the appeal as premature. Frey v. Gabel, 574 S.W.2d 38, 39[1, 2] (Mo.App.1978).

Nota bene that the purported judgment, supra, declaring the insurance policy to be in full force and effect, was expressly conditioned upon plaintiff, within 30 days thereafter, paying defendant $1,539 via a cashier’s check through the office of the circuit clerk. The conditions imposed were something plaintiff may or may not have done depending upon its personal desires, caprice or whim. The “judgment” of the court did not operate in praesenti for it was not to become operative unless and until the occurrence of the conditions stated therein. Ergo, the ordeg cannot be treated as a final judgment since it did not operate in prae-senti as a final determination of the issues. Ravenscroft v. Ravenscroft, 585 S.W.2d 270 (Mo.App., Western District 1979); Thompson v. Hodge, 348 S.W.2d 11, 14 (Mo.App.1961); Stone v. Boston, 218 S.W.2d 783, 787[6] (Mo.App.1949); Hays v. Dow, 237 Mo.App. 1, 7[3], 166 S.W.2d 309, 312[3] (1942); 4 C.J.S. Appeal and Error § 96, p. 276; 30A C.J.S. Equity § 584, p. 651; 49 C.J.S. Judgments § 73, pp. 192-193; cf. MFA Cooperative Ass’n of Ash Grove v. Elliott, 479 S.W.2d 129, 134[12-14] (Mo.App.1972).

Wherefore, the cause is remanded for issuance of a final judgment dependent upon the compliance vel non of plaintiff relative to the conditions imposed by the order aforesaid. Upon entry of a final judgment by the court nisi, the aggrieved party may then appeal if desired.

All concur, except PREWITT, J., dissents and files dissenting opinion.

PREWITT, Judge,

dissenting.

I respectfully dissent.

I believe that the judgment, although conditional in nature, disposed of all issues, and the appeal here gives us jurisdiction.

The authorities cited in the principal opinion support my belief. Thompson v. Hodge, 348 S.W.2d 11, 14 (Mo.App.1961) recognizes that “there are decisions, equally strong, which hold certain conditional decrees to be final judgments”, citing Hurst Automatic Switch & Signal Co. v. Trust Co. of St. Louis County, 291 Mo. 54, 236 S.W. 58 (1921); Schneider v. Patton, 175 Mo. 684, 75 S.W. 155 (1903); and Irwin v. Burgan, 325 Mo. 309, 28 S.W.2d 1017 (1930). The latter two cases both held decrees similar to the present to be final as having determined the substantial merits of the controversy. The principal opinion also cites 4 C.J.S. Appeal & Error § 96. It states at 277:

“The mere fact that a decree provides for the payment of money by the successful party as a method for the execution of the decree does not render it conditional so as not to be appealable.”

49 C.J.S. Judgments § 73 at 193 indicates that “modern practice” no longer holds conditional judgments void, especially where equitable relief is awarded.

The trial court by conditioning its decree upon the payment of money into court appears to follow the procedure suggested in Priest v. Oehler, 328 Mo. 590, 41 S.W.2d 783 (1931), and reiterated in Wallace v. Hankins, 541 S.W.2d 82 (Mo.App.1976). Based on such cases, the trial judge may have felt he had to order the money paid into court to have a final judgment. By remanding to determine if the payment is made, this court is holding that such payment is a condition precedent to a final judgment. I don’t agree that we should so hold. While the circumstances of the present case may have justified it, the practice of requiring the prevailing party to pay a sum of money into court prior to final judgment can create an unnecessary hardship. That party may be deprived of the use of the money and yet not have the relief requested, such as good title to property, until after trial motions are ruled and an appeal concluded. If the trial court is reversed, the party may receive back the money with little or no return. I believe requiring such deposits before a decree is final, in many cases, serves no purpose, is impractical, and should not be required. After the decree is final, the court can take further action as is necessary in execution of its decree. Thompson v. Hodge, supra, 348 S.W.2d at 13.

Even if we hold that the condition must be met before the judgment is final, the cause need not be remanded. If additional documentation is needed from the trial court’s records, it can be supplied by use of Rule 81.12(c), V.A.M.R. We can thus determine if the condition in the decree has been met. If so, the judgment is final as no further action of the trial court is necessary or required.

There is authority that conditional judgments are final, and authority that they are not. Unless we have no choice, we should not now remand this appeal and cause additional time and expense to the parties, their attorneys, and the courts. The transcript indicates that the judgment determined all the issues between the parties. We have before us, or can easily obtain, all necessary information to review the decision. The practical and expedient solution is to retain jurisdiction and dispose of the ease on the merits.


author: PER CURIAM:

text:
    STATE of Missouri, Plaintiff-Respondent, v. John D. DAVIS, Defendant-Appellant.
    No. 11035.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 4, 1979.

      John D. Ashcroft, Atty. Gen., Marjorie Wholey Haines, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    John A. Watkins, Greenfield, for defendant-appellant.
   PER CURIAM:

Defendant was jury-convicted of uttering, with intent to defraud, an insufficient funds check of over $100, i. e., $3,141.50. § 561.460. The jury fixed punishment at “2 years in Dept of Correction” and the verdict contained a recommendation that “Sentence to be suspended on condition Defendant makes full restitution.” After overruling defendant’s motion for a new trial and affording allocution, the court sentenced defendant in accordance with the verdict but placed him on “parole under the supervision of the State Department of Probation and Parole on condition that he make full restitution.” Defendant was also “placed on probation for a period of four years.” Defendant appealed.

The order of the sections of defendant’s brief filed herein is: (1) Jurisdictional Statement, (2) Points & Authorities, (3) Statement of Facts, (4) Argument and (5) Conclusion. Not only has the order of the sections been made in disregard of Rule 84.04(a), but the second section has been misbranded — it should have been “Points Relied On”. Also, the statement of facts, consisting of a single, double-spaced typewritten 8½" X 11" page, does not, in violation of Rule 84.04(c), present “a fair and concise statement of the facts relevant to the questions presented for determination without argument”.

To compound the above noted violations, defendant’s first two points recite: “I. The court erred in overruling defendant’s motion to dismiss at close of opening statement by the state for the reasons that: A. The information failed to comply with Rule 24.01(a) in that it cited no statutory proscription or name of offense. B. The prosecuting attorney had failed in [his] opening statement to state a case in that no mention was made of the element of intent. 2. The court erred in permitting the jury, before making a finding of guilt, to consider suspension of sentence and to reach a verdict imposing a suspended sentence upon restitution, thereby converting a criminal prosecution into a civil action for money.” The fatal flaccidity with the foregoing points relied on is that neither point was presented to the trial court in defendant’s motion for a new trial. When such omissions occur, the points will not be considered when proffered for the first time on appeal. State v. Fingers, 564 S.W.2d 579, 584[12] (Mo.App.1978); State v. Major, 564 S.W.2d 79, 82[9] (Mo.App.1978); State v. Hamell, 561 S.W.2d 357, 361[11] (Mo.App.1977).

Defendant’s third point relied on states: “The court erred in admitting into evidence a check, Exhibit 1, which had not been disclosed to defendant’s counsel although defendant’s counsel had requested disclosure of any such documents.” This point has no merit and is hypertechnical because Exhibit 1 was the basis of the criminal charge against defendant and was the check which defendant admittedly wrote and delivered in making the purchase in question. Furthermore, when the exhibit was offered at trial, it was shown that it had been an exhibit at defendant’s preliminary hearing. The imposition of sanctions for failure to comply with discovery rules is within the trial court’s discretion. As it was defendant who created the exhibit and knew of it since its birth, and as the check-exhibit was the basis of the charge on trial, it cannot be said that the trial court erred by admitting it into evidence. State v. Broyles, 559 S.W.2d 614, 615[1] (Mo.App.1977).

Defendant’s fourth and final point states: “There was insufficient evidence to sustain a conviction in that there was no evidence of intent to defraud.” Wherein and why there allegedly was no evidence of intent to defraud cannot be ascertained without reference to the argument portion of defendant’s brief. This is something we are not required to do in order to come by the meaning of an abstraction presented in a brief. State v. McClain, 541 S.W.2d 351, 354[6, 7] (Mo.App.1976); Rule 84.04(d). But albeit the point, as written, preserves nothing for appellate review, it suffices to observe that on December 22, 1976, the date the $3,141.50 check in question was written and delivered by defendant, his bank balance was $14.12 and that during the month of December 1976, nine checks written by defendant had been returned for insufficient funds. “Ordinarily, where a check is drawn on a bank in which the drawer does not have on deposit sufficient funds from which the check can be paid, the mere fact of making the check with knowledge of the insufficiency of the account would be sufficient evidence of fraudulent intent to send the case to the jury.” State v. Brookshire, 329 S.W.2d 252, 256[6] (Mo.App.1959).

Judgment affirmed.

All concur, except PREWITT, J., not participating because not a member of the court when cause was submitted.

      . References to statutes and rules are to RSMo 1969, V.A.M.S., and Missouri Supreme Court Rules, V.A.M.R.