author: PER CURIAM.

text:
    George ARNOLD, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38572.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 24, 1977.

      James W. Huck, Huck, Hasten & LaBe-aume, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   PER CURIAM.

This is an appeal by petitioner-appellant, George L. Arnold, from an order of the Circuit Court of the City of St. Louis entered on September 27, 1976 denying, without an evidentiary hearing, his petition for writ of error coram nobis. For reasons hereinafter stated, we affirm the order of the circuit court denying his petition.

On February 4, 1953, some 23 years ago, movant, George L. Arnold, pleaded guilty in the City of St. Louis to the offense of assault with intent to rob. Some 12 years later, in 1965, he was charged, tried and convicted for the offense of “unlawfully and by means of deceit obtaining] a certain narcotic drug, Dilaudid tablets, by uttering, offering and passing as true and genuine a certain false prescription.” He first entered a plea of not guilty through his court-appointed attorney — a public defender. He later withdrew his plea of not guilty and entered a plea of guilty through another attorney retained by him. In the 1965 case the defendant was questioned and in the course of the questioning the court asked, “You said you didn’t know anything about it, is that correct?” The defendant answered, “Yes, sir.” At the time of sentence, some two and one-half months later, Mr. Arnold appeared in person and an attorney — the same public defender as before— “stood in” for his retained counsel. At that time the trial court indicated that he had earlier pleaded guilty and sentenced him to three years in the Department of Corrections. He later moved to withdraw his plea of guilty under Rule 27.25 alleging that the court erred in accepting his plea because there was no determination that the plea was voluntarily made but was in fact equivocal. Our Supreme Court agreed. State v. Arnold, 419 S.W.2d 59 (Mo.1967). The court held that there was no showing that the court explained, or that the defendant understood, the consequences of the guilty plea or that he assented to it. There was no explanation of the range of punishment and no determination whether counsel had explained the consequences of the plea. Hence, since there was not only a lack of understanding of the proceedings and their consequence, and the plea was at best equivocal, the order denying his motion to withdraw his plea was reversed by the Supreme Court and remanded for further proceedings. State v. Arnold, supra, 419 S.W.2d 59.

Some ten years after he pleaded guilty to the narcotics offense or eight years after the plea was set aside, the petitioner was charged with the felony of burglary in the second degree and the 1953 conviction for assault was pleaded and proved as a prior felony. In March 1975, he was tried, found guilty by a jury and, under the Second Offender Act, § 556.280, based upon his 1953 plea of guilty, was sentenced to nine years in the Department of Corrections. This conviction was appealed to this court and the conviction was affirmed. State v. Arnold, 534 S.W.2d 836 (Mo.App.1976). On that appeal appellant did not question the validity of the 1953 conviction but limited his points on appeal to the issue of the sufficiency of the evidence. Our mandate was handed down March 31, 1976.

According to the findings of the trial court on this appeal, the record shows that Mr. Arnold filed a motion to vacate his 1975 conviction but that motion was denied without an evidentiary hearing. Then, on April 2. 1976, Mr. Arnold filed this “Application For Writ Of Error Coram Nobis.” In that application he prayed that the 1953 conviction be set aside. He alleged that (1) he was wrongfully convicted of an offense that did not constitute robbery and which mov-ant could have been acquitted of had he had diligent counsel; (2) the assault with intent to rob “carries a maximum of five years”; (3) the facts showed that he and others were involved in a “brawl” and persons “grabbed” items and ran; (4) if counsel “would have investigated the cause he would have shown that [he] did not assault any person with intent to rob”; (5) counsel did “nothing but inform [him] that if he did not plead guilty he would get life” and counsel “would not do a dam [sic] thing” for him “unless he entered a plea of guilty”; (6) counsel did nothing for him except to enter a plea of guilty and that he would not represent him at any jury trial; and (7) counsel did not properly investigate the facts and counsel had him “so scared” that “all he could think about was getting his time and getting away.” In his application he alleged that if given an evidentiary hearing he would testify that he was in fear of getting life, that he could not hire counsel to investigate his case, that the public defender made it clear that the only thing he wanted movant to do was to plead guilty and that he could have given the public defender several witnesses that could have shown his innocence but that the public defender “kept looking at movant like movant was making him mad and that movant was wasting his time.” He alleged that he would testify that the public defender did the same thing in 1953 as he did in the 1965 plea when he was a “stand in” lawyer. He therefore sought the trial court below to set aside and vacate the 1953 conviction.

The thrust of appellant’s contention, as we perceive it, is: if successful in vacating the 1953 conviction for assault with intent to rob, there would be no basis for relying on the Second Offender Act to “enhance” his 1975 conviction for burglary in the second degree; hence the 1975 conviction should be vacated.

After filing his application for writ of error coram nobis, the State, on August 19, 1976, filed its motion to dismiss alleging that Mr. Arnold “was aware of the grounds for his writ in 1967, nine years prior to his application” and that “no just cause for his delay in application for said writ” was alleged. The State, therefore, moved to dismiss the application because it was not timely filed and because no just reason was alleged to justify the delay.

The motion to dismiss the application for the writ was heard and argued on September 15, 1976 and was taken under submission.

On September 27, 1976 the court entered its order and memorandum opinion dismissing movant’s application without an eviden-tiary hearing. The court found (1) that Mr. Arnold was convicted and sentenced on February 4, 1953 after pleading guilty to the offense of assault with intent to rob; (2) that he was subsequently charged with the offense of burglary second degree and that the prior felony was pleaded and proved; (3) that he was tried on the burglary charge in March 1975 and found guilty by the jury; and (4) that the conviction was affirmed. The court further found that (1) under the principles relating to a writ of error coram nobis, the burden of proof is clearly on the movant; (2) while Mr. Arnold attacked the effectiveness of his 1953 counsel in that counsel performed the same acts as were alleged in his 1965 drug conviction which was set aside because of the invalidity of the plea, the allegations in the petition for the writ were not well pleaded and “many are vague and conclusory”; (3) since 1967 when the narcotics conviction was set aside, the 1953 counsel has died; (4) movant waited some twenty-three years (1953-1976) before filing his application for relief and that under the law, while coram nobis should not be denied merely because of the passage of time, it is required that affirmative facts be pleaded which justify the delayed request for relief; and (5) Mr. Arnold was aware of the grounds for relief stated in his application at least in 1967 — nine years before filing his application.

The court therefore concluded that Mr. Arnold did not affirmatively plead “facts to justify his delay in seeking relief” and that his application was “not timely filed.” Hence, the court denied an evidentiary hearing and dismissed the application for writ of error coram nobis.

The movant appealed. On this appeal he contends that the trial court was “clearly erroneous” in denying a hearing and dismissing his application because his application was “timely filed.” He argues that even though he was aware of possible grounds for relief in 1967 he need not have sought relief in coram nobis earlier than 1976 because it was not until the termination of the 1975 burglary conviction that the 1953 conviction had any adverse effect upon him. He submits that the delay was not unreasonable and that there was no necessary ground for relief present until after the 1975 conviction. He further argues that he filed his application for the writ within a reasonable time after the 1953 conviction first had an adverse effect on him, and he denies that the mere possibility of heavier penalties under the Second Offender Act is sufficient to be considered a present adverse effect. He concludes that the application was timely filed and that the court erred in holding that it was untimely.

Appellant in his brief contends that the “true question presented by this appeal is whether mere apprisal of possible grounds for relief [is] sufficient to bring the Writ, or must the Movant first suffer some presently adverse consequence from the prior conviction.”

We state the issue presented as we perceive it: is an applicant for coram nobis required to seek relief to set aside a conviction within a reasonable time after he becomes aware of the grounds for possible relief, or may he forego seeking such relief until he suffers some alleged present adverse consequence from the earlier conviction although the adverse consequence may be effective years later?

The movant’s application for writ of error coram nobis is the appropriate vehicle for attacking the validity of a sentence which has been already served. Gajewski v. United States, 368 F.2d 533, 534 (8th Cir. 1966); McCormick v. State, 523 S.W.2d 854, 855 (Mo.App.1975); Peterson v. State, 476 S.W.2d 608, 610 (Mo.1972). When the sentence has been served, a motion to vacate under Rule 27.26 is not appropriate since the movant is not in custody. In such instance the motion to vacate should be treated as an application for writ of error coram nobis. Montgomery v. State, 529 S.W.2d 8, 9 (Mo.App.1975).

There are several general principles relating to the writ of error coram nobis:

(1) the action is civil in nature and not criminal;

(2) the writ is a common law remedy addressed to the trial court to correct errors of fact affecting the validity of the proceedings which at the time of the original proceedings were unknown to the party seeking relief and to the court;

(3) it is considered to be a new action and its purpose is to vacate the former judgment;

(4) the right to relief by means of coram nobis is not absolute — it is not allowed as a matter of right or routine. Powell v. State, 495 S.W.2d 633, 635 (Mo. banc 1973). It issues only if it is made to appear with reasonable certainty that some error of fact not apparent on the record was unknown to the applicant;

(5) it will not lie where the party complaining knew of the facts complained of at the time of or before trial or by the exercise of reasonable diligence might have known it;

(6) the burden of proof is on the movant or applicant — he is required to present proof that supports his well-pleaded allegations and such allegations must be established by a preponderance of the evidence;

(7) the application or motion must state with particularity sufficient facts to constitute grounds for relief. Howard v. State, supra, 493 S.W.2d at 19; McCormick v. State, supra, 523 S.W.2d at 855; Blodgett v. State, 245 S.W.2d 839, 842 (Mo.1952);

(8) the movant must demonstrate that he is suffering from present adverse legal circumstances in order to invoke coram nobis relief from a sentence already served. Deckard v. State, supra, 492 S.W.2d at 403; McCormick v. State, supra, 523 S.W.2d at 855; Stewart v. United States, 446 F.2d 42, 43—44 (8th Cir. 1971);

(9) to set aside a prior conviction based upon a plea, the movant should raise the issue of the invalidity of the prior conviction on the appeal of a subsequent conviction. Montgomery v. State, supra, 529 S.W.2d 9-10 ; Deckard v. State, supra, 492 S.W.2d at 402-403;

(10) reasonable diligence should be exercised by the movant to attack the alleged invalid conviction. Turnbough v. State, 544 S.W.2d 894, 895 (Mo.App.1976); Howard v. State, supra, 493 S.W.2d at 20-21; Flood v. State, supra, 476 S.W.2d at 534 (12 years); and

(11) sound reasons should be alleged or advanced for a failure to seek appropriate relief. Turnbough v. State, supra, 544 S.W.2d at 895.

The Supreme Court of the United States had occasion to examine the propriety of a writ of error coram nobis in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). There the history of the writ was examined and the Court held that the writ was available to a person who had served his sentence. The Court stated that “[subsequent convictions may carry heavier penalties, [or] civil rights may be affected.” United States v. Morgan, supra, 74 S.Ct. at 253. The Court, however, restricted its use as a means of continuing litigation and limited its use to circumstances “compelling such action to achieve justice” or to errors of the “most fundamental character.”

“Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice . [and includes] errors ‘of the most fundamental character’ . . . [and] sound reasons . . .for failure to seek appropriate earlier relief . . . .” United States v. Morgan, supra, 74 S.Ct. at 252-253.

Based upon these legal principles relating to coram nobis relief, we cannot conclude that the trial court was clearly erroneous in denying appellant’s application for writ of error coram nobis.

First, appellant contends that his 1953 attorney was the same attorney who allegedly was ineffective in his 1965 trial for narcotics, and, since he was successful in reversing the 1965 conviction, the 1953 conviction based upon a plea should also be reversed. But the public defender in 1953 was not the attorney who handled the guilty plea in 1965; he was a “stand in” attorney for a retained attorney who was present at the guilty plea. It was the retained attorney who handled the guilty plea in the 1965 conviction.

Second, appellant was aware of any alleged invalidity of the 1953 proceeding at least by 1967 when the narcotics appeal was reversed and remanded. Delaying the filing of the application for nine years, or 23 years after the original conviction, is, we believe, an unreasonable delay. We believe that an application seeking coram nobis relief should be made with reasonable diligence from the time that the grounds alleged in the application were known or should have been known to the applicant. The failure to pursue the remedy of coram nobis when the movant is aware of the alleged grounds for relief within a reasonable time causes litigation to be “never ending” and continuous. Delays are not favored by the courts. Untimeliness of applications for coram nobis or motions to vacate cause untold difficulties. While time alone should not and does not deprive a person of fundamental rights, the time lapse is certainly a most important relevant factor in denying the application. We adhere to this view even though the prior offense may not have had the alleged adverse effect upon the movant until his conviction for the second offense in 1975. Appellant in his application did not plead any facts justifying the delay. Hence we reject appellant’s argument that his application is timely because it was filed within a reasonable time after the affirmance of the burglary conviction in 1976, and we hold that the trial court did not err in denying relief for failure to exercise reasonable diligence to attack the 1953 plea. Turnbough v. State, supra, 544 S.W.2d at 895; Flood v. State, supra, 476 S.W.2d at 534; Howard v. State, supra, 493 S.W.2d at 20-21.

Third, even though we may consider that there was no untimely delay because there was no adverse effect upon him until his second conviction in 1975, the denial of cor-am nobis relief was not erroneous. In the appeal from the conviction for burglary in the second degree, State v. Arnold, supra, 534 S.W.2d 836, appellant did not raise the issue as to alleged invalidity of the 1953 conviction. His appeal in the burglary conviction was limited to the issue of the sufficiency of the evidence to support the conviction. He could and should have raised the issue of the applicability of the Second Offender Act in that burglary appeal. He did not do so. Montgomery v. State, supra, 529 S.W.2d at 9.

Furthermore, the writ of error cor-am nobis is not a matter of right or mere routine; the trial court has discretion to grant or deny the writ. This is not an instance where the circumstances are so compelling to achieve justice nor is any alleged error of such a fundamental character so as to compel relief.

From all the circumstances, therefore, we are convinced that the trial court did not err in denying appellant’s application for writ of error coram nobis without an evi-dentiary hearing.

The judgment is affirmed.

All the Judges concur.

      . The record is unclear whether the conviction, was under § 559.180, RSMo., which carries a penalty of two years to life, or § 559.190, which carries a penalty not exceeding five years. Appellant’s application for the writ alleges he pleaded guilty to assault with intent to rob under § 559.190, but his brief filed in this court indicates that he was convicted of assault with intent to rob under § 559.180, a felony punishable in the penitentiary from two years to life.

      . We are not informed by the present record whether there were any further proceedings in the cause. We do not know whether Mr. Arnold again pleaded guilty and was sentenced, or whether he pleaded not guilty and was tried and later convicted or acquitted or whether the charge was merely dropped. But it is significant to note that the Supreme Court did not discharge him — the cause was reversed and remanded for further proceedings.

      . Movant does not indicate which counsel — his retained attorney who represented him at his plea of guilty or the public defender who “stood in” for retained counsel at sentencing. The implication is that he refers to the public defender.

      . This substantiates the fact that movant was charged and pleaded guilty to an offense under § 559.180, not § 559.190, and contradicts his own motion.

      .It is to be noted that the then public defender who represented movant in his 1953 plea was not his counsel at the plea of guilty on the 1965 charge. The public defender did not represent him at the plea but “stood in” for the retained counsel at sentence. See State v. Arnold, supra, 419 S.W.2d at 61.

      . The 1953 counsel was not the same counsel on the plea of guilty in the 1965 case. In the 1965 case Mr. Arnold’s retained attorney represented him at the plea and the 1953 counsel was a “stand in” at his 1965 sentence.

      . Relying on Flood v. State, 476 S.W.2d 529 (Mo.1972); Howard v. State, 493 S.W.2d 14 (Mo.App.1973); and Deckard v. State, 492 S.W.2d 400 (Mo.App.1973).

      .Appellant in his brief does not attack the conclusion of the trial court that he did not plead facts to justify any delay in seeking relief.

      . As stated in Montgomery v. State, supra, 529 S.W.2d at fn. 1, p. 10:
      “The requirements of trial and appellate procedure requiring preservation of error serve a vital function in the administration of justice. They permit prompt correction of error and immediate retrial while witnesses are still available and memories fresh. . . . Where the legal principles which cause a prior conviction to be invalid have already been established by the courts at the time of the second conviction, we can see no valid reason why the attack on the prior conviction should not be made at that time rather than years later on a Rule 27.26 motion [or an application for writ of error coram no-bis].”

      . The fact that movant was denied a right to appeal does not present an error of the most fundamental character when the application does not set forth a ground for reversal of an earlier conviction. McFadden v. United States, 439 F.2d 285, 287 (8th Cir. 1971) [discussing Morgan ].

      . We believe that áppellant could have filed his application prior to the 1975 conviction even though he had not as yet been charged as a second offender. The Second Offender Act, § 556.280, is not the only possibility of an adverse legal consequence. As stated in United States v. Morgan, supra, 74 S.Ct. at 253: “Subsequent convictions may carry heavier penalties, [and] civil rights may be affected.” Cf. § 560.610.


source: Caselaw Access Project

author: BRUCE NORMILE, Special Judge.

license: Public Domain

text:
    Jefferson L. ROGERS and Glenola Rogers, Plaintiffs-Appellants, v. Ruth L. STEUERMANN, Defendant-Respondent.
    No. KCD 27412.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.

      Gordon N. Myerson, Morris, Mitchell, Larson, King, Stamper & Bold, Kansas City, for plaintiffs-appellants.
    Walter R. Simpson, Sheridan, Sanders, Mason & Simpson, Kansas City, for defendant-respondent.
    Before DIXON, P. J., and CONLEY, NORMILE and BELT, Special Judges.
   BRUCE NORMILE, Special Judge.

The jury returned a verdict for the defendant upon plaintiffs’ claims for personal injuries and loss of services arising out of an open intersectional automobile accident. Plaintiffs’ motion for a new trial was primarily based on two allegations of juror misconduct and was overruled by the trial court. This appeal followed, and we affirm.

The first allegation of jury misconduct is that at least two of the jurors visited the scene of the accident to make their own investigation following submission of the case to them. The second allegation of misconduct is that the jury foreman went home on the evening after submission of the case and prepared a large and carefully detailed diagram of the intersection where the accident had occurred. It is alleged that this diagram was then used in the jury’s deliberation on the next morning before the jury arrived at the defendant’s verdict.

At the hearing on the motion for a new trial, appellants offered into evidence several unsworn affidavits from various jurors, including the foreman, the court reporter, and the foreman’s wife. At that hearing, these “affidavits” and the foreman’s diagram were received in evidence. This was admitted over objection. The respondent’s attorney also admitted that he saw the jury foreman take this diagram out of his pocket in the courtroom upon conclusion of the case.

There is no competent evidence to support the first allegation of juror misconduct. The statements of the jurors, offered at the hearing on the motion for a new trial, were unsworn. They were taken out of court and out of the presence of respondent’s counsel. They were hearsay and could not properly be considered. Wilson v. St. Louis-San Francisco Railway Company, 362 Mo. 1168, 247 S.W.2d 644 (1952). These statements were also inadmissible because a juror may not, over objection, be heard to impeach his and the jury’s verdict. Mayberry v. Clarkson Construction Company, 482 S.W.2d 721, 724 (Mo.1972).

As to the second allegation of juror misconduct, the statements of the jurors again cannot be considered. However, appellants urged that there was independent evidence of the foreman’s misconduct. They rely upon the affidavits of the foreman’s wife and the court reporter, and the testimony of respondent’s attorney. The unsworn “affidavits” of the foreman’s wife and the court reporter cannot be considered because they are hearsay. However, respondent’s attorney testified that the foreman did have in his possession in the courtroom immediately following the conclusion of the case a large diagram of the intersection which the foreman demonstrated to both attorneys. The diagram had not been received in evidence. The diagram is approximately 3' X 4' in size and drawn to a scale of 1" to 3' and done in meticulous detail. It shows the positions of the vehicles both at the time of impact and after the collision with other detailed measurements. There is also a chart on the diagram translating miles per hour into feet per second. This diagram, obviously, required great preparation, and there is a strong inference from its nature that it was not completed within the jury room during the course of the jury’s deliberations. Upon the record in this case, it may be found that the diagram was considered by the jury in its deliberation, contrary to the instruction of the trial court in its cautionary instruction (MAI No. 2.01(5)) that the evidence to be considered “consists of the testimony of witnesses and the exhibits admitted in evidence.”

Upon separation of the jury after submission of a case, it is not possible to prevent a juror from reflecting on the evidence of the case. However, a juror may not independently seek evidence, Middleton v. Kansas City Public Service Company, 348 Mo. 107, 152 S.W.2d 154 (1941); visit the scene of an accident, Douglass v. Missouri Cafeteria, Inc., 532 S.W.2d 811 (Mo.App.1976); make inquiry as to appropriate compensation, Kelley v. Prince, 379 S.W.2d 508, 513 (Mo.1964); or inform the other jurors of his personal knowledge of the circumstances of the case, Cook v. Kansas City, 358 Mo. 296, 214 S.W.2d 430, 433 (1948). In this case we conclude that it was improper for the foreman to prepare an exhibit of this nature outside the courtroom and return it into the jury room to be used in deliberation. Thus, error is shown here, but such error must materially affect the merits of the action to require reversal. Rule 84.-13(b).

Appellants urge that if juror misconduct is found, a prima facie case of prejudice is made, citing Middleton v. Kansas City Public Service Company, supra. In that case, the trial court found misconduct but denied the motion for new trial on the basis there was no showing of prejudice from such misconduct. The Supreme Court reversed holding that a second judicial discretion had not been exercised because the misconduct which was found in that case was such that prejudice would be presumed. Essentially, trial courts must exercise a sound discretion in considering the prejudicial effect of juror misconduct. Appellate courts must defer to those findings unless it substantially appears that a trial court has erred in finding there was or was not misconduct or was or was not prejudice. Middleton v. Kansas City Public Service Company, supra; Kelley v. Prince, supra; Dysart-Cook Mule Company v. Reed & Heckenlively, 114 Mo.App. 296, 89 S.W. 591 (1905).

In this case the trial court’s action in denying the motion for new trial constituted an implied finding that there was no prejudice from the juror misconduct. We find no abuse of discretion in that action. It is recognized in the Middleton case that even where there is juror misconduct, it is not an abuse of discretion to deny a motion for new trial where there was no evidence that the jurors obtained any new, different, or conflicting evidence. Appellants essentially concede that the diagram in question is correct. There is no dispute as to the physical layout of the intersection. The diagram is similar to two other diagrams which were in evidence. There are numerous photographs in evidence which clearly show the intersection from all four directions and which are consistent with the foreman’s diagram. The diagram is clearly based on the evidence in the case, and the misconduct injected no issues or evidence not properly before the jury. We find no reversible error.

Judgment for defendant is affirmed.

DIXON, P. J., and CONLEY, Special Judge, concur.

BELT, Special Judge, concurs in result only.


author: FRANK CONLEY, Special Judge.

text:
    Kenneth Leroy ROBERTS, Plaintiff-Appellant, v. Clara Mae ROBERTS, Defendant-Respondent.
    No. KCD 27477.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.

      Louis Wagner, Kansas City, for plaintiff-appellant.
    Lonnie J. Shalton, Popham, Popham, Conway, Sweeny & Fremont, Kansas City, for defendant-respondent.
    Before DIXON, P. J., and CONLEY, NORMILE and BELT, Special Judges.
   FRANK CONLEY, Special Judge.

This is an action for partition of certain real property owned by appellant and respondent as tenants in common. Respondent’s answer alleged the existence of an oral agreement between the parties that appellant would convey all his right, title and interest in said property to respondent. Respondent counterclaimed for specific performance of that agreement, for actual damages in the amount of attorney’s fees incurred in this action and for punitive damages alleging willful, malicious and fraudulent conduct on the part of appellant. The trial court denied appellant’s action for partition and granted specific performance of the alleged agreement. This appeal is taken from that order and from the award to respondent of $1,000.00 in attorney’s fees.

Appellant claims that the trial court erred in decreeing specific performance because the respondent failed to prove the existence of a contract beyond a reasonable doubt and because the alleged contract was not clear, explicit and definite, and because there was no mutuality between the parties. We disagree.

Appellant and respondent were divorced on August 13, 1973. During those proceedings, respondent testified as to a property settlement which had been negotiated by the attorneys on behalf of the parties. This testimony was given in the presence of appellant and his attorney, and without objection. At trial, appellant stated that he had heard respondent testify at the divorce proceedings. The terms of the agreement were recorded in the transcript of those proceedings. Part of the transcript was admitted in evidence in this case. At that time, appellant was asked to read the relevant portion of the transcript. Appellant then stated that the transcript, to the best of his knowledge, accurately reflected the testimony given during the divorce proceedings. Later, however, appellant claimed to have been sitting in the back of the courtroom and to have been unable to hear everything that was said.

Appellant’s behavior after the divorce was inconsistent with his professed ignorance of the property settlement. Appellant took possession of those items of personal property which were to be his according to the agreement. Respondent testified during the divorce proceedings that she agreed to take over payments on the property here in question, in exchange for execution to her of a deed to the property. Subsequent to the divorce, appellant ceased to make the payments.

In his petition for partition, appellant asked that the Lincoln Continental automobile belonging to the parties be sold and the proceeds divided; yet, at trial he testified that he had agreed to sign title over to the respondent. The only evidence offered to refute the existence of the alleged property settlement agreement between the parties was appellant’s own conflicting testimony. Except for admissions against his own interest, the trial court rejected appellant’s testimony as incredible. “The trial chancellor, in contrast to this court, in determining [his] credibility had the opportunity to hear [him] and observe [his] demeanor on the witness stand.” Mueller v. Mueller, 318 S.W.2d 365, 369 (Mo.1958).

Even if appellant’s testimony as to his alleged ignorance of the property settlement were believed, his attorney at that time was aware of the significance of respondent’s testimony and of the fact that the court based the award of alimony and child support upon the existence of the property settlement agreement. During the divorce proceedings, respondent’s attorney asked appellant’s attorney whether he thought they ought to have a written agreement. Appellant’s attorney replied, “I think the parties understand what their situation is.”

If an unauthorized transaction was entered into by appellant’s attorney, his remedy is against the attorney. The rule is repeated in Wenneker v. Frager, 448 S.W.2d 932, 937 (Mo.App.1969). “ ‘An attorney in charge of a case has implied authority from his client to enter into any stipulation for the control of the progress of the action, even to the entering of judgment in favor of the opposite party.’ ”

Appellant, before bringing this action for partition, appealed to this court from that part of the divorce decree awarding alimony in the amount of $125.00 a month to respondent. Roberts v. Roberts, 515 S.W.2d 805, 806 (Mo.App.1974). We said at that time:

“That the appellant and his counsel were present at all stages of the proceeding; that they allowed said proceeding to proceed as a default; that they were present and had an opportunity to hear the respondent’s recitation of the agreement reached between the parties; and that at the conclusion of her testimony, appellant withdrew his petition allowing the respondent to take her divorce by means of her cross-petition. This being so, the plaintiff-appellant has acquiesced in the judgment of the trial court, and may not be heard to complain on appeal of that to which he has given his implied consent.”

The same principle applies in this case. The award in the divorce action was expressly stated to be based upon the property settlement now being disputed. Appellant should not be able to acquiesce there and then, in a collateral action, be heard to complain that he is completely ignorant of such an agreement.

Appellant further urges that the trial court erred in decreeing specific performance because respondent has not performed on the alleged oral contract and, therefore, there is no obligation on appellant’s part to perform.

Respondent was ready and willing to perform her part of the agreement. She made no claim to that property which was appellant’s according to the agreement. Appellant was allowed to remove property from the family home without objection from the respondent. Appellant now claims that titles to the vacant lot, camper and Chevrolet truck owned by the parties jointly, were not conveyed to appellant as provided by the property settlement. However, there was no showing that any papers were ever presented to respondent to sign or that she refused to perform her part of the agreement. Furthermore, respondent made payments on the family home (property sought now to be partitioned) pursuant to and in reliance on the property settlement agreement.

Appellant claims that the court erred in decreeing specific performance where the alleged contract was not based on adequate and legal consideration and where performance would bespeak an unconscionable advantage. Appellant’s estimate of the value of the property received by both parties is not supported by the record, nor is his allegation of unconsciona-bility. According to the agreement, the respondent was to receive the family home, home furnishings and the Lincoln Continental. Appellant was to receive the vacant lot, a pickup truck, a camper and certain other personal property such as tools, guns and a television set. The amount of child support and alimony awarded in the divorce decree were calculated with this agreement in mind. Respondent further agreed to take over payments on the family home in return for conveyance to her of full title.

Under the standard of review set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), the judgment is supported by the evidence. No error in the interpretation or application of the law appears, and the judgment is affirmed as to the matters set forth above.

The appellant’s final point is that the court erred in awarding respondent attorney’s fees. This is a misstatement of the judgment of the court since the judgment clearly is for damages, the relevant portion being as follows:

“Defendant is given judgment against plaintiff in the sum of One Thousand Dollars ($1,000) actual damages, for which let execution issue.”

As the argument in his brief clearly reflects, appellant does not challenge the evi-dentiary support for the award of damages but rather insists that the award was made in the partition action and was an allowance of attorney’s fees which is not authorized under Section 528.530 RSMo 1969. Since this court will presume right action of the trial court absent a claim of error, there is no issue raised on appeal with respect to the award of damages as such. Schlanger v. Simon, 339 S.W.2d 825 (Mo.1960); Yates v. White River Valley Electric Co-operative, 414 S.W.2d 808 (Mo.App.1967). Since the court had the authority to award damages for a delay of performance in a specific performance action, Metropolitan St. Louis Sewer District v. Zykan, 495 S.W.2d 643 (Mo.1973), and since this court will take all the inferences from the evidence in favor of the judgment by the trial court, Bayless Building Materials Co. v. Peerless Land Co., 509 S.W.2d 206 (Mo.App.1974); City of St. Louis v. Boos, 503 S.W.2d 133 (Mo.App.1973), the judgment is affirmed.

All concur.


author: TIMOTHY D. O’LEARY, Special Judge.

text:
    John W. HALL et ux., Appellants, v. Ronald KNAPP et al., Respondents.
    No. 27619.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.

      Kranitz & Kranitz, Theodore M. Kranitz, St. Joseph, for appellants.
    Rupert G. Usrey, Eiser & Usrey, Oregon, for respondents.
    Before SHANGLER, P. J., and HANNA, SMITH and O’LEARY, Special Judges.
   TIMOTHY D. O’LEARY, Special Judge.

The Knapp Construction Company, a partnership composed of three Knapp brothers (plaintiff), obtained judgment in this court-tried case in the sum of $1,101.29 against defendants John and Joan Hall, husband and wife (referred to herein as defendant singular for the reason that the husband made all the agreements).

Plaintiff’s petition sought recovery for payment of-a check in that amount alleging that the parties had agreed on the amount due under an oral contract for construction. Plaintiff asserts that this agreement constitutes an accord and satisfaction.

Defendant’s answer denied that there was an accord and satisfaction and counterclaimed alleging that plaintiff failed to perform the contract in a workmanlike manner and as a result defendant’s basement leaked water, and prayed for resultant damages.

We set forth the evidence necessary to make clear the trial theories of the parties and the basic disputes between them.

To put it mildly, the parties entered into a rather loose oral agreement which was orally modified, again rather loosely, from time to time for certain additions and improvements to defendant’s residence.

For example, at the beginning of their relationship they discussed excavating under defendant’s house and constructing a basement with concrete walls. Plaintiff drafted a contract containing a diagram. This contract was drawn in the fall of 1971 and was not signed by either party. The parties agreed that plaintiff would begin work sometime in the winter months, or whenever the plaintiff was not quite so busy, or whenever he could. The work started in the Spring of 1972.

This same casualness governed the whole period of their relationship and therefore it was most difficult for the trial court, as it is for this court, to ascertain just what the various agreements were.

While the original contract was never signed by the parties, plaintiff proceeded with the work based on the general specifications contained in this contract and the parties were to some extent guided by its provisions. Therefore, this original unsigned contract, which we characterize as a “proposal” for purposes of our discussion is of evidentiary value in ascertaining the intentions of the parties.

Plaintiff undertook to excavate under defendant’s existing house and construct a basement as well as construct a rear patio, a driveway, a front porch and steps, and a front sidewalk. The original proposal provided that certain of this work would be done for the price of $4,350. Thereafter as the original proposal was orally modified from time to time and as the work progressed, plaintiff would submit written bills and adjustments in amounts to defendant and obtain partial payments.

Finally on November 10, 1972, plaintiff presented defendant a final itemized bill. At that time defendant discussed several items of construction with plaintiff that he did not believe were quite satisfactory. Plaintiff responded that they had done the best job they could under the circumstances and had done what they agreed to do. The parties discussed this bill item by item and after making a $30 adjustment struck an agreed balance and defendant gave plaintiff a postdated check in the sum of $1,071.29.

There was a dispute as to why the defendant gave plaintiff a postdated check. At trial defendant testified that the reason that he gave plaintiff a postdated check was because he and plaintiff had some disagreements over a water problem in the basement and defendant wanted to see if this water problem improved. He admitted that he did not advise plaintiff of this reason. Plaintiff on the other hand stated that he accepted the check as payment in full and wrote “paid in full 11/10/72” on the final bill. Plaintiff stated the reason that defendant gave for postdating the check was that he wanted an opportunity to sell some corn and put the proceeds in the bank before plaintiff cashed the check. Defendant didn’t deny making that statement, but was unable to recall that he did, and at one point in his testimony said he did not give plaintiff any reason for asking him to hold the check.

The trial court resolved this dispute in favor of plaintiff and found that plaintiff had presented an account stated. The court reasoned that it was the intention of the parties to settle the account and there was therefore an accord and satisfaction. The question of intention is rarely capable of positive proof but is to be arrived at by logical deductions from proven facts. Julian v. Kiefer, 382 S.W.2d 723 (Mo.App.1964).

The trial court recognized the principle that an account stated need not settle all the dealings between the parties and becomes an account stated only as to the items contained therein and agreed on and found that the accord and its satisfaction was not intended to settle any claims defendant might have for defective workmanship or any other claim asserted in defendant’s counterclaim and the court did not rule the defendant’s counterclaim on that basis.

The defendant does not dispute the amount of the balance struck nor does he contend that he didn’t agree to pay that amount. Rather, defendant argues that he did not intend to settle all claims and that he is entitled to recover on his counterclaim for defective performance. Since the trial court did not preclude defendant’s assertion of his claim by finding that the accord and satisfaction was intended to settle these claims, we fail to see any logic in defendant’s position that there was no accord and satisfaction at all.

It appears to make little difference in this case whether plaintiff’s theory of recovery was a suit on the check, on the accord, on an accord executory, on an account stated, on an account stated settled, or on an accord and satisfaction. In Corbin on Contracts, Volume 6, Section 1303, Professor Corbin discusses some reasons for confused analysis and judicial grappling with this terminology. He states:

“The term ‘account stated’ has been used to denote a number of diverse transactions, the facts of which are so different that the legal relation created thereby must also be different.”

Professor Corbin separates account stated into two basic categories: One where the parties strike a balance due on an open account before a balance is due and before any breach is committed, and the other where the parties reach agreements reducing unliquidated claims to certainty or compromising disputed claims. Of the latter, Professor Corbin says that the legal effect is quite different than that where the parties reach an accounting by a mere bookkeeping process. § 1305.

Where the parties by agreement turn a disputed or unliquidated claim into a liquidated debt the agreement is binding as a wholly new contract of accord and compromise. § 1309. This is true he states whether the agreement is intended to constitute an immediate discharge of all prior claims, thus consummating an accord and satisfaction by the substitution of a new contract, or specifies instead that acceptance be followed by payment before discharge takes place. In the latter case, the acceptance of the offer constitutes what is called an accord executory. § 1311. It is in this situation that the discharge is suspended until payment has been made; however, it is still a valid enforceable agreement.

To the same effect, see Murray on Contracts, Revised Edition, p. 513, Section 253. Accord and Satisfaction and Substitute Contract — General principles.

Under any of these theories defendant would have been able to present his counterclaim and the trial court’s findings on plaintiff’s claim would have been the same. To put it another way, the defendant has no real argument with the amount agreed on or that it was due under the contract. He insists only that this agreement does not bar his counterclaim for damages which is based on defective performance. The court did not rule otherwise so this makes it difficult to follow defendant’s reasoning.

We next consider defendant’s argument that there was no accord and satisfaction for the reason that since this transaction involved a liquidated and undisputed debt (as opposed to an unliquidated and disputed debt) there can be no accord and satisfaction by acceptance of partial payment of a debt unless supported by additional consideration, citing Johnson v. Johnson, 352 Mo. 787, 179 S.W.2d 605, 609 (1944). The case cited does stand for that general proposition and it is a well accepted principle of law in most all jurisdictions. But there are three answers to that, it seems to us. The first is that this payment was not a partial payment but rather a payment in full. The second answer is that the amount due under the contract was not a liquidated or undisputed claim as defendant suggests. The third is that the term “accord” is used not only to describe an agreement involving a disputed or unliquidated claim, but it is also used to describe an agreement involving undisputed and liquidated claims.

We note, parenthetically, defendant’s inconsistency in claiming that the trial court’s award to plaintiff was based on an undisputed and liquidated claim and yet his insistence that the court erred in finding that defendant owed plaintiff that amount.

In the Johnson case defendant cites, the court found that the accord or agreement and the promissory note given in satisfaction thereof made an account stated and constituted an accord and satisfaction and cited as authority for their finding, Caneer v. Kent, 342 Mo. 878, 119 S.W.2d 214, 216 (1935).

In the Caneer case our Supreme Court recited the rule that had long been followed by Missouri concerning the doctrine of account stated. It is (citing from Pickel v. St. Louis Chamber of Commerce Ass’n, 10 Mo.App. 191, 1.c. 194 (1913)):

“ ‘When parties having mutual matters of account between them growing out of a contract deliberately account together, and state a balance, and the party who, in such accounting, is found indebted to the other, pays the debt, or gives a written obligation for its payment, this settlement is so far conclusive between the parties that it cannot be reopened or gone into, either at law or in equity, except on clear proof of fraud or mistake, or of an express understanding that certain matters were left open for future adjustment.’ ”

It becomes important to determine what claims are considered “unliquidated”. The best analysis of the guidelines for this determination we find is in Corbin on Contracts, Volume 6, Section 1290. The first group or class of cases set out there as “unliquidated” are those where the amount of the original claim has never been determined by agreement of the parties or otherwise. The second class of cases are those based on a rate of payment per unit of performance but the number of units may be undetermined or disputed. The third class of cases are those where the terms of the contract or the meaning to be given is doubtful and disputed. There are additional examples as well as illustrative cases.

The contract under consideration fits all three groups recited. Plaintiff submitted bills for additional work based on amounts spent for so many yards of concrete, bills based on a unit price of 55 cents a square foot for concrete work, bills based on materials used, and so on. It is therefore obvious that the claim or bill presented was unliquidated and disputed so that an account stated (or an accord executory) without any additional consideration should be upheld.

Having demonstrated that the agreement constitutes an account stated under Caneer, the agreement constitutes a new agreement and when the amount was paid by defendant’s postdated check, the transaction may be properly referred to as an account settled. Perbal v. Dazor Manufacturing Corp., 436 S.W.2d 677 (Mo.1968).

Defendant’s remaining point is that the transaction cannot constitute an accord and satisfaction because the delivery of a postdated check on which payment was later stopped cannot constitute “satisfaction” until payment of the check has been received, and therefore it is open to the debt- or or the creditor to repudiate the proposed, but not a consummated agreement. Defendant cites Brent v. Westerman, 128 F.Supp. 835 (W.D.Mo.1954), and Henderson v. Eagle Express Company, 483 S.W.2d 767 (Mo.App.1972). These cases and many other authorities support this general rule. However, they also recognize and state that it is the settled law in Missouri that if the check is accepted as payment and not just the “means” through which payment may be obtained, the claim or debt is extinguished by mere acceptance of the check— that is to say a “satisfaction” occurs.

The trial court found that it was the intention of the parties that the postdated check be accepted as payment.

Under this circumstance what is the effect of plaintiff’s acceptance of a postdated check? What is the effect of defendant stopping payment on a postdated check? How can a dishonored check be said to constitute a satisfaction or payment? The writer in 60 Am.Jur.2d, Payment, § 48, p. 645, notes:

“Some courts have reasoned that if the check is dishonored, such as for insufficient funds, there is no payment of the underlying debt, because the agreement to accept the check is without consideration and void and the creditor is relieved from his agreement, whether the debtor acted fraudulently or in good faith, since payment with a worthless check is like payment with counterfeit money. But other courts hold that if a creditor agrees to accept a draft or check in absolute payment, the underlying debt is extinguished by delivery of the check, (Footnote 9: Brent v. Westerman, (D.C.Mo.) 123 F.Supp. [835] 838) even though the debtor stops payment on the check (Footnote 10: Weinberg v. Globe Indemnity Company [Mo.App.1962] 355 S.W.2d 341) —so that the underlying debt is discharged but there is still liability on the check (Footnote 11: 11 Am.Jur.2d Bills and Notes, Section 590)—or the check is never presented for payment.”

Griffin v. Priest, 137 S.W.2d 685 (Mo.App.1940) which was cited by the court in Brent v. Westerman, supra, a predated check was given to pay the balance of a claim allowed by the probate court. It was agreed that plaintiff would hold the check for collection until defendant could arrange for payment when presented. The check was later deposited several times but was not paid. This court stated the general rule that acceptance of a note, bill or check does not constitute payment of an underlying debt, but stated that if the note, bill or check is intentionally received as payment, the debt is thereby discharged. So it held that where the creditor accepts a note, bill or check with the intention of receiving it as payment the debtor is discharged and the debt extinguished.

We conclude that the trial court correctly ruled that the transaction was a settlement of an account stated which constituted an accord and satisfaction. (1 C.J.S. Accord and Satisfaction § 45)

It is appropriate at this point to note that under appellate review in the court-tried case we are under the obligation to affirm the judgment of the trial court unless the judgment is not supported by substantial evidence or is against the weight of the evidence, the judgment erroneously declares the law, or the judgment erroneously applies the law. Rule 73.01; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Brown v. Redfern, 541 S.W.2d 725 (Mo.App.1976).

We have already concluded that the finding on plaintiff’s claim meets this test. We now consider the finding on defendant’s counterclaim in this framework.

The basis of defendant’s counterclaim is that plaintiff failed to perform the terms of the contract in a workmanlike manner; that is, its performance was defective in that defendant was plagued with problems of seepage and surface running water which defendant alleges to be a result of improper backfilling, failure to apply a cement or tar coating to the foundation walls, and failure to install drain tile to take care of surface water and seepage through the basement floor.

The trial court found that surface water did come through the basement walls and did seep through the basement floor. However, the trial judge found that the agreement between the parties did not provide that the basement walls be waterproofed as the parties did not believe that such waterproofing was necessary, nor did it provide for drain tiles or even backfilling and grading. He further found that some of the leakage through the basement walls was caused by improper backfilling and grading so that the water was permitted to run into the basement and settle around the foundation rather than run away from the house and that this caused some settlement in the patio and parts of the basement. But he found that the backfilling was done partly by plaintiff and partly by defendant and he concluded that since he could not determine whether plaintiff’s backfilling or defendant’s backfilling caused the drainage problem and resultant damages that defendant had failed in his burden of proof. Finally the court concluded that plaintiff’s performance under the contract was not defective and that defendant did not sustain any damage as a result of plaintiff’s performance.

There is ample evidence to support these findings. We have already alluded to the looseness and casualness of the oral agreements and oral modifications of the contract as well as the unsigned “proposal” that the parties relied on in proceeding with this work. We note that the “proposal” after reciting that the specifications were for “putting basement under old house” provided “Backfilled; owner agrees not to backfill until seven days after the foundation is poured. Backfill is done at owner’s expense and any damage to the foundation shall be the responsibility of the owner, unless backfill is done by contractor.”

Defendant did not prove to what extent each of the parties did the backfilling or the grading of the ground so that the surface water would run away from the house. Defendant did testify that he and a hired hand did part of the backfilling.

It is important to point out that at the time of this agreement the residents of St. Joseph, Missouri, had not had any water problems in the area for some fifteen years according to defendants own experts. Plaintiff testified that he drafted some two or three hundred agreements a year before this contract and that you could not sell waterproofing or drain tile until the rainy season set in and that since that time most all of his contracts have these particular provisions. The witnesses all agreed that until the summer of 1972 (shortly after completion of this contract), when the area had excessive rainfall, that there had been no significant water problems in that area. They stated that the two years subsequent to the completion of this contract were exceptionally wet years and that the water table rose to such an extent that the water would seep through basement floors in addition to the problems of surface water seepage through the walls.

Both of defendant’s experts testified that structurally the basement wall was sound. They both conceded that the contract did not provide for waterproofing or drain tile. Mr. Broomer, one of defendant’s experts, observed that although architects specify these provisions in commercial basement work, that 90% of the residential work is not done in that fashion.

Both of defendant’s experts opined that in order to correct defendant’s problem, it would be necessary to apply a waterproofing coat to the basement walls and to install drain tiles to prevent seepage through the floor resulting from the high water table as well as to grade around the foundation in a manner that would cause the surface water to run away from the house.

It appears that the work was done according to the plans and agreements which were approved by both plaintiff and defendant; that although hindsight would dictate provisions in the contract for both waterproofing and drainage tile, this contract did not so provide; that although some of the water seepage was the result of improper backfilling, the court was unable to determine from the evidence the extent to which each party contributed to that damage; and that plaintiff performed his contract in a workmanlike manner.

The burden of proof was upon the defendants to prove defective performance and causal connection. The trial court concluded that defendant failed in his burden in both respects.

The facts set out amply support the trial court’s findings and conclusions; furthermore, findings of the trial court are not lightly to be disturbed and should be deferred to unless they are in conflict with a preponderance of the evidence or disclose a manifest abuse or clear abuse of discretion. Rodgers v. Rodgers, 505 S.W.2d 138, 140 (Mo.App.1974) and Murphy v. Carron, supra.

Finding no such conflict or abuse and believing that the judgment of the trial court is appropriate and correct, we affirm.

All concur.

      . For a general discussion of accord and satisfaction see 1 C.J.S. Accord and Satisfaction §§ 1 through 25, 36 through 38, 45 through 47; 1 Am.Jur.2d, Accord and Satisfaction, §§ 1 through 7.