author: GANT, Judge.

text:
    Dorothy FIGHTMASTER, Appellant, v. H. Gale LEFFLER et al., Appellees.
    Court of Appeals of Kentucky.
    March 25, 1977.
    Rehearing Denied June 10, 1977.
    Discretionary Review Denied Oct. 24, 1977.
    James M. Todd, Todd & Sherrow, Lexington, Asa M. Rouse, Rouse, Mathis & Benson, Walton, for appellant.
    Thomas C. Smith, Covington, for H. Gale Leffler.
    Rodney S. Bryson, Ware, Bryson, Nolan, West & Hiltz, Covington, for Jack Green-berg.
    Before GANT, HOWERTON and WHITE, JJ.
   GANT, Judge.

This was an action to set aside three deeds on the grounds of fraud and breach of trust. The Appellant, Mrs. Dorothy Fightmaster, had acquired title to 2.4 acres in Boone County, Kentucky, by a survivor-ship deed in 1954, and through the death of her husband in 1963. The facts disclosed that in January of 1966, the Appellant became acquainted with the Appellee, Leffler, and that some ten months later she conveyed this tract of land to him for the purpose of sale or development after she had tried unsuccessfully to sell it herself. The deed from Fightmaster to Leffler was a General Warranty Deed and contained no notice to anyone that Mrs. Fightmaster was retaining any interest therein but, in fact, the purpose of the deed was for Leffler to assist her and at all times she was expecting to receive the proceeds therefrom.

Thereafter, Leffler advertised the property in various newspapers and was contacted by the Appellee Greenberg, a self-employed realtor and developer from Cincinnati. After several discussions between Leffler and Greenberg, the two of them arrived at a plan whereby Leffler would sell to Green-berg a two-thirds interest in the property for $5,000 and the two of them would form a corporation, Appellee Boone Enterprises, Inc., to hold this property as its sole asset. Leffler was to have five shares of stock in the corporation and Greenberg ten shares of stock, in accordance with their agreement. Approximately one year after Mrs. Fightmaster had conveyed the property to Leffler, that deed was recorded and at the same time a deed from Leffler to Boone Enterprises, Inc. was recorded. The stamps on the two deeds reflected that the consideration from the Fightmaster to Leffler deed was $500.00 or less and the consideration from Leffler to Boone Enterprises was $7,500.00.

A few months after the incorporation, Leffler sold his five shares of stock to Greenberg for $2,000.00, making a total of $7,000.00 which Leffler had received from Greenberg for the property. Greenberg then transferred the property from Boone Enterprises, Inc. to himself, individually, and continued to hold this property in his individual name until the time this action was brought in September, 1973.

Evidence at the trial indicated that a short time before Leffler conveyed the property to the corporation, in fact, two days before, he had transmitted to Mrs. Fightmaster an offer of $16,000.00 for the subject property, which she refused as inadequate. Evidence further indicated that an adjacent piece of property had been sold some short time before for $14,000.00 and a qualified appraiser testified that the actual value of the property at the time of this transfer was between $29,000.00 and $30,-000.00. Leffler never paid to Mrs. Fight-master any of the $7,000.00 and in fact did not ever disclose to her any part of the transaction between himself and Green-berg. The testimony was that Mrs. Fight-master made repeated inquiries of Leffler as to the progress in the sale or development of “her” property and that on each occasion she would receive some evasive answer. Finally, in December of 1971, she became dissatisfied with Leffler’s answers and went down to look at the property, discovering that there were signs on the property indicating that it was for sale or lease. In January of 1972, Mrs. Fightmas-ter learned of the deeds from Leffler to Boone Enterprises and from Boone Enterprises to Greenberg for the first time and she then contacted two attorneys in seeking to get the return of her property. Apparently both attorneys tried to deal through Leffler alone, seeking to have him repurchase the property and convey it back to Mrs. Fightmaster, and the first notice, according to his testimony, that Greenberg received was when this action was instituted in September of 1973.

The lower court found that there was no actual or constructive notice of the fraud to the Appellee Greenberg and further found that Mrs. Fightmaster was guilty of laches. It is from these findings that the Appellant appeals.

Actual notice of fraud is seldom capable of proof by direct evidence and customarily circumstantial evidence must be relied upon. The circumstantial evidence in this case was that the Appellee Greenberg was a realtor, that he viewed the property, that he had knowledge of the sale of the adjacent property for $14,000.00, and that he had knowledge of the 55 cents in stamps on the deed from Mrs. Fightmaster to Leffler. However, we will not disturb the findings of the lower court concerning the actual knowledge of the Appellee Greenberg. Constructive knowledge or imputed fraud and breach of trust is a different matter. The courts will view confidential relationships with great suspicion and diligence and will require a difference set of standards in those instances. It is obvious here that this was, in fact, a close relationship between two men. They first participated in a joint venture or partnership for the utilization of this property and subsequently formed a two-man corporation for the same purpose. It can hardly be argued that they did not enjoy a close and confidential relationship in both capacities.

To illustrate the position of the law in regard to this matter, we must look at the statutes and cases thereunder. The Uniform Partnership Act, Ky.Rev.Stat, Chapter 362, states as follows:

362.205. Partnership charged with knowledge of or notice to partner. — Notice to any partner of any matter relating to partnership affairs, and the knowledge of the partner acting in the particular matter, acquired while a partner or then present to his mind, and the knowledge of any other partner who reasonably could and should have communicated it to the acting partner, operate as notice to or knowledge of the partnership, except in the case of a fraud on the partnership committed by or with the consent of that partner.
362.210. Partnership bound by partner’s wrongful act. — When, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.
362.215. Partnership bound by partner’s breach of trust. — The partnership is bound to make good the loss:
(1) Where one partner acting within the scope of his apparent authority receives money or property of a third person and misapplies it; and
(2) Where the partnership, in the course of its business, receives money or property of a third person and the money or property so received is misapplied by any partner while it is in the custody of the partnership.
362.220. Nature of partner’s liability. — All partners are liable:
(1) Jointly and severally for everything chargeable to the partnership under KRS 362.210 and 362.215;
(2) Jointly for all other debts and obligations of the partnership; but any partner may enter into a separate obligation to perform a partnership contract.

Thus it is clear that one partner is bound by the knowledge of another, bound by his wrongful and fraudulent act, bound by his breach of trust.

Nor are we limited by the definition of this particular relationship, in considering whether the fraud or breach of trust occurred while these two men were associated as a partnership or as a corporation. Appellant relies on the case of Hughett v. Shain, 253 Ky. 330, 69 S.W.2d 688 (1934). In this case Mr. Hughett was president of a corporation selling automobiles and trucks and purchased a note from his own corporation which had been procured by fraud on the part of another officer of the corporation. The court, in the Hughett case, held as follows:

. It doubtless is true that Hugh-ett had no knowledge of the alleged fraud, but the question presented is, whether one may buy a note from a corporation of which he is president, and occupy the position of a holder in due course. A pioneer case on the subject is McCarty v. Kepreta, 24 N.D. 395, 139 N.W. 992 . . . There a note and mortgage were executed without consideration to a state bank, and by it were assigned by its cashier for value to its president, who had no actual knowledge of any infirmity in the note, or of any defense to its payment. After an elaborate discussion of the question . the court held that the president of the bank, although he, in good faith, and for full value, purchased the note from the bank, without actual knowledge of want of consideration, was not a bona fide purchaser, since, by virtue of his position in the bank, he was presumed to have had knowledge of the transaction and was therefore affected with constructive notice. It seems to us that this doctrine is sound. Here, if there was fraud, it was committed by the motors company’s secretary and salesman. His act was the act of the corporation, his knowledge was the corporation’s knowledge, and the corporation’s knowledge will be imputed to its president to the extent that he may not become a holder in due course of a note purchased from the corporation.

Appellees seek to distinguish between holder in due course and bona fide purchaser but this Court feels that no such distinction is intended by this case and it will not be permitted by this Court. It is the belief of this Court and we so find that there cannot be a holder in due course or bona fide purchaser under the circumstances of this case, and we find that the obvious fraud of Leffler is imputable to Greenberg. An excellent discussion of the reasoning behind this is found in White and Summers, Uniform Commercial Code, Chapter 14, P. 480 (1972). In discussing the section of the Uniform Commercial Code that provides that a holder in due course takes free of personal defenses of any party to the instrument with whom the holder has not dealt, the authors say, “Thus if the holder is so closely connected with the payee that they are ‘one,’ the maker could still assert his personal defenses.” The authors go on to say that it would certainly be possible for the law to find that “one is in good faith if he has a white heart and an empty head” and yet could still find that there is a sufficient connection between the seller and the buyer that would place the buyer in the shoes of the seller.

The other ground upon which the trial court based its decision was laches on the part of Mrs. Fightmaster. It is conceded that she did not learn of the fraud and breach of trust practiced upon her until January of 1972, and that her attorneys immediately set about to remedy the situation, bringing this action in September of 1973. We do not consider that an unreasonable delay under the circumstances. It is not questioned that Leffler could not plead laches under these circumstances, as it was he who caused the delay. The Kentucky cases have long held that laches requires something more than a delay in that it requires a change in position by the defendant to such a point that he could not be restored to his former state and that it would be inequitable to enforce the action of the plaintiff. We find in the instant case that Greenberg had paid a moderate amount of taxes and had mowed the 2.4 acres periodically and this was his sole “change of position.”

The law in circumstances such as those which we find in this case is well stated in the case of Richardson v. Blue Grass Mining Co., D.C., 29 F.Supp. 658, 665, (1939), affirmed, Blue Grass Mining Co. v. Richardson, 6 Cir., 127 F.2d 291, certiorari denied, 317 U.S. 639, 63 S.Ct. 30, 87 L.Ed. 515. In this case it is stated as follows:

It is true that the familiar maxim “Equity aids the vigilant, not those who slumber on their rights”, furnishes an important rule to prevent the enforcement of stale demands independent of statutory periods of limitations. Mere lapse of time, however, is not the only element to be considered in applying the rule. A more important consideration is whether delay in asserting the claim has worked such prejudice or disadvantage to parties adversely interested or such changed conditions have occurred in the meantime that enforcement of the claim is rendered inequitable. There is no fixed rule by which to measure the degree of laches which is sufficient to bar the enforcement of a right. Each ease must be determined according to its own particular facts and circumstances. (Citing cases). Where the parties sustained a confidential relation to each other, and the claim arises from an alleged breach of trust, or fraud is imputed, in the interest of justice a Court of equity will look upon delay with much more indulgence. (Citing cases). It is sufficient to say that in light of the facts disclosed by this record, it does not appear that complainants have been guilty of unreasonable delay or that defendants have suffered such prejudice or disadvantage on account thereof as to make enforcement of the demands inequitable. The defense of laches is without merit.

For the reasons above stated, the judgment of the lower court is reversed and the case is remanded to that court for judgment in conformity herewith.

All concur.


source: Caselaw Access Project

author: DONNELLY, Judge.

license: Public Domain

text:
    STATE ex rel. ST. LOUIS COUNTY, Missouri, a body corporate and politic et al., Relators, v. Honorable Harry STUSSIE, Judge, Circuit Court, St. Louis County, Respondent.
    No. 59964.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1977.
    As Modified on Denial of Rehearing Oct. 11, 1977.

      George W. Lang, II, Associate County Counselor, Clayton, for relators.
    Alan G. Kimbrell, St. Louis, for respondent.
   DONNELLY, Judge.

This is prohibition.

We transferred this case from the St. Louis District of the Court of Appeals and decide it “the same as on original appeal.” Mo.Const. Art. V, § 10. The facts of the case, as they appear in the original opinion written in the Court of Appeals (Stewart, J.) are set forth with minor changes without quotation marks. Those portions of this opinion which deal with whether this Court has jurisdiction to entertain this proceeding, with whether relators have standing, and with the propriety of utilizing the writ of prohibition in this case, were also written by Judge Stewart and are adopted here, substantially as originally written, without quotation marks.

This is a proceeding instituted on the relation of St. Louis County, Gene McNary, the Supervisor of St. Louis County, and William J. Hennessey, Jr., the Director of the St. Louis County Department of Welfare, to prohibit and restrain Respondent, the Honorable Harry Stussie, Judge of the Circuit Court of St. Louis County, from exercising jurisdiction and entering further orders to enforce the condition of probation pronounced by him in the case of State of Missouri v. Daniel Alfred Brown, whereby Brown was to spend the first year of his probationary period in the St. Louis County jail.

Brown pleaded guilty to a charge of Robbery in the First Degree by means of a Dangerous and Deadly Weapon, a felony. On January 15,1976, Judge Stussie entered an order, which reads in part as follows:

“ . . . the defendant is sentenced to serve a term of five (5) years in custody of the Missouri Department of Corrections, Jefferson City, Missouri for the offense, Robbery First Degree with Dangerous and Deadly Weapon.
“HOWEVER, it is ordered and adjudged by the Court that execution of the sentence be and is hereby stayed and that said defendant, Daniel Alfred Brown, be and he is hereby placed on probation for a period of five (5) years, subject to the rules and provision of the State Board of Probation and Parole. Special condition of probation by the Court: First year of probation to be served in the St. Louis County Department of Welfare, St. Louis County, Missouri.”

“Shock probation” as a condition of probation has become a regular practice on the part of the St. Louis County Circuit Judges. In 1974, 102 persons were ordered confined in the St. Louis County Jail as a condition of their probation; in 1975, 180; and 17 by early March, 1976.

We first consider whether this Court has jurisdiction to entertain this proceeding. Respondent contends § 549.141, RSMo 1969, prohibits our review of the trial court’s order. The statute reads: “The action of any court in granting, denying, revoking, altering, extending or terminating any order placing a defendant upon probation or parole is not subject to review by any appellate court.” Our courts have consistently refused to permit direct appeals of probation orders. They have, however, entertained writs of prohibition or habeas corpus. See Stroder v. State, 522 S.W.2d 77 [17-18] (Mo.App.1975), and the cases cited therein. These cases have dealt exclusively with the due process requirements that surround a probation revocation. This proceeding is collateral to Mr. Brown’s case in State v. Brown. It can in no way be said to be an appeal from the order of probation.

Respondent also contests relators’ standing to bring this proceeding.

The fact that relators are strangers to the proceedings at which prohibition is aimed does not prevent our consideration of the issues raised, provided the action of the lower court affects the interests of relators. State ex rel. Drainage District No. 8 of Pemiscot County v. Duncan, 384 Mo. 733, 68 S.W.2d 679 (banc 1934).

The St. Louis County Director of Welfare has “the custody, rule, keeping and charge of all jails and correctional institutions, and of all the prisoners therein and perform[s] all duties and exercise[s] all powers with respect thereto required by law to be performed by the sheriff.” Article IV, § 4.410(7), St. Louis County Charter (1968). The Director of Welfare, in performing the duties of sheriff, has statutory responsibility for the custody, rule, keeping and charge of the county jail and all prisoners therein. § 221.020, RSMo 1969. As a necessary part of his duties, the Director of Welfare must see that the prisoners are provided with proper space, food, bedding and medical attention. State ex rel. Saline County v. Price, 296 Mo. 121, 130, 246 S.W. 572, 574 (1922).

While there is no hard evidence of the county’s cost in caring for “shock probationers”, both the Missouri statutes and the St. Louis County Charter impose on relator Hennessey the duty to provide space, food and other considerations for the probationer in his custody. From this statutory duty there must necessarily arise the expenditure of some money, manpower and use of facilities for the care of such persons as Brown. Irrespective of the question of the expenditures of funds on Brown we are of the opinion that the responsibility of accounting for the probationer’s custody is a sufficient burden upon the county through its Department of Welfare to give the relators standing to bring this proceeding.

In addition both relators, McNary, the Supervisor, and the County itself have standing to pursue this suit because under the County Charter, Supervisor McNary is vested with the executive power in the county. Article III, § 3.010, St. Louis County Charter (1968). The Supervisor is responsible for appointing the Director of Welfare and other department heads, coordinating and supervising the work of the departments, and submitting an annual balanced budget to the County Council for approval.

In this case the court has entered its order which has not been fully executed. On the matter of probation the court retains jurisdiction to modify any general or specific condition of probation and so long as any part of the court’s order remains unexecuted this Court, by writ of prohibition, may consider whether further proceedings upon the order should be prohibited. State ex rel. Mid America Pipeline Co. v. Rooney, 399 S.W.2d 225, 229 (Mo.App.1965). A remedy was not available to relators by way of appeal. State ex rel. Atkins v. Missouri State Board of Accountancy, 351 S.W.2d 483, 489 (Mo.App.1961).

Prohibition is not a writ of right. Its issuance in a given case is addressed to the sound discretion of the court. The chief purpose of the writ is to prevent the lower court from acting without or in excess of its jurisdiction. State ex rel. Industrial Properties, Inc. v. Weinstein, 306 S.W.2d 634, 636 (Mo.App.1957). The issues raised in this proceeding challenge the jurisdiction of the court to enter its order containing the special condition; these issues are not likely to be determined in a direct proceeding by a probationer; and they are of vital interest to the parties to this proceeding. For these reasons we exercise our discretion and determine this cause on its merits.

Relators contend that respondent is exceeding his jurisdiction in requiring Brown to spend the first year of his probationary period in the county jail as a special condition of probation.

Section 549.071, RSMo 1969, allows a sentencing judge to “place the defendant on probation upon such conditions as the court sees fit to impose.” The essential question in this proceeding is whether this language permits a sentencing judge to prescribe incarceration as a condition of probation.

In South Dakota, their statute (SDCL 23-57-4) allows the trial court to impose such terms and conditions of probation “as the court may deem best.” In State v. Marshall, 247 N.W.2d 484, 486-87 (1976), the Supreme Court of South Dakota said:

“There appears to be a wide variety of approaches among the various jurisdictions as to the proper solution to the problem at hand. Some courts have held that imprisonment as a condition of probation is proper under statutory language similar to SDCL 23-57 — 4. See Franklin v. State, 1964, 87 Idaho 291, 392 P.2d 552; Tabor v. Maxwell, 1963, 175 Ohio St. 373, 194 N.E.2d 856. Other courts were blessed with controlling statutes specifically authorizing incarceration. See State v. Jones, 1976, Fla., 327 So.2d 18; Prue v. State, 1974, 63 Wis.2d 109, 216 N.W.2d 43. Some states have held that language similar to the broad grant in SDCL 23-57-4 did not allow imprisonment, only to have their legislature authorize such a condition of probation. See State v. Van Meter, 1968, 7 Ariz.App. 422, 440 P.2d 58 (legislative change reflected at State v. Evans, 1973, 109 Ariz. 491, 512 P.2d 1225); People v. Robinson, 1931, 253 Mich. 507, 235 N.W. 236 (legislative change reflected at People v. Sarnoff, 1942, 302 Mich. 266, 4 N.W.2d 544). Other states hold that incarceration is not permissible as a condition of probation unless a statute specifically authorizes that sanction. See State v. Nuss, 1973, 190 Neb. 755, 212 N.W.2d 565; People v. Ledford, 1970, 173 Colo. 194, 477 P.2d 374. We find the reasoning of the latter jurisdiction persuasive.”

In Colorado, their statute (C.R.S.1963,39-16-6) allows the trial court to suspend the imposition or execution of sentence upon such terms and conditions “as it may deem best.” In People v. Ledford, 173 Colo. 194, 196, 198, 477 P.2d 374, 375, 376 (banc 1970), the Supreme Court of Colorado said:

“ . . . By its very nature and definition, probation means and signifies liberty under certain imposed conditions. Its basic purpose is to provide a program which offers an offender the opportunity to rehabilitate himself without confinement. This is to be accomplished under the tutelage of a probation officer and under the continuing power of the court to impose a sentence for his original offense in the event he abuses this opportunity and violates the conditions of probation. See the discussion of probation in Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41; Yates v. United States, 10 Cir., 308 F.2d 737.
“When an accused is granted probation, he is also granted his liberty and freedom from confinement in a jail or penitentiary. Unless there is specific statutory authority to the contrary, a trial court may not on the one hand grant probation and on the other hand impose institutional confinement or a jail sentence as a condition of that probation. Trial courts have a wide discretion in imposing certain conditions upon a probationer, but not included within its discretionary power is the authority to impose jail confinement as a condition.
* * ⅜ ⅜ ⅝⅞ ⅜
“We construe our probation statute (C.R.S.1963, 39-16-6) as not containing authorization to impose confinement as a condition of probation.
“Certainly, the policy of granting probation with a period of confinement as a condition may be argued as being most beneficial under some circumstances. However, this policy and the limits which should be placed upon it are matters properly for the legislature to consider and not for this court to attempt to read into the present statute.”

We agree with the Colorado and South Dakota courts. We construe the above language from § 549.071, RSMo 1969, as not permitting a sentencing judge to prescribe incarceration as a condition of probation.

We note that in its First Regular Session of 1977, the General Assembly adopted Act 73, and that, effective January 1,1979, Section 559.026 will authorize a trial court to require “as a condition of probation that the defendant submit to a period of detention * * *.”

The preliminary rule in prohibition is made absolute.

MORGAN, C. J., and HENLEY, FINCH, RENDLEN and SEILER, JJ., concur.

BARDGETT, J., dissents.


author: ALDEN A. STOCKARD, Special Judge.

text:
    ROMPADINE, INC., a corporation, Respondent, v. EXECUTIVE INTERNATIONAL INN, INC., a corporation, Appellant.
    No. 37976.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 30, 1977.

      Edwin Rader, Clayton, for appellant.
    Leonard Komen, Susman, Schermer, Wilier & Rimmel, St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

In this suit to recover a $10,000 deposit as earnest money, the jury verdict was for plaintiff, and defendant has appealed. We affirm.

On August 12, 1972, the parties entered into a contract whereby plaintiff was to purchase for $217,500 certain described land in the City of Fenton upon which it proposed to construct an indoor ice skating rink. The closing date for the sale was September 13, 1972. Plaintiff alleged, and by its answer defendant admitted, that the “Contract was subject [to] and contingent upon certain conditions among which was the Plaintiff’s securing necessary building permits and occupancy permits from all necessary Governmental bodies prior to closing.”

The court instructed the jury that the verdict should be for plaintiff if they believed, among other things, “that plaintiff made a reasonable effort to secure such building permits and occupancy permits from all necessary Governmental bodies and agencies prior to closing” and that “plaintiff was unable to secure said permits.” The defendant contends on this appeal that the court erred in submitting the above issue to the jury because it was admitted that plaintiff “failed to make formal application for the issuance of such permit by the proper governmental authority,” and it argues that the proper authority was St. Louis County.

Mr. A. Strode, who was a member of the Board of Aldermen in 1972 and the Mayor of the City of Fenton at the time of trial, testified that in 1972 Mr. Robert Kling was Public Works Director, who also acted as Building Commissioner, and that he was the “sole boss” as to the granting of building permits for residential property, but that “St. Louis County issue[d] permits” for commercial property. He explained that the arrangement with St. Louis County was the result of an ordinance enacted by the City of Fenton authorizing the City to enter into a contract with the County for that purpose. Neither the ordinance nor the contract was offered in evidence. Mr. Strode also testified that even though the building permit for commercial property was issued by the County, Mr. Kling reviewed and had to approve “the set back lines to make sure they complied with zoning laws and to make sure there was ample parking placings,” and after he had approved the plans “he [Mr. Kling] would then submit those [the plans] to the County.” The mayor was asked: “Did you have to get approval from Mr. Kling before you could go to the second stage to get this other [County] approval?” The answer was, “Yes.” It is admitted that Mr. Kling never approved the plans submitted to him, and that neither he nor plaintiff made application to St. Louis County for a commercial building permit.

Mr. Koman, president of plaintiff corporation, testified at considerable length concerning the numerous meetings he had with Mr. Kling, some occurring before the date of the contract of sale, and that he had submitted plans and revisions of plans to Mr. Kling but never obtained his approval. Mr. Kling did not testify, and Mr. Koman was not permitted to state what was said by Mr. Kling on the ground that it was hearsay. Therefore, the objections of Mr. Kling to plaintiff’s plans are not of record. However, defendant makes no contention on this appeal that the efforts of Mr. Ko-man to obtain the approval of Mr. Kling were not made in good faith. Defendant only contends that under the circumstances of this case, as a matter of law, plaintiff was required to make formal application to St. Louis County for the permit. We do not agree.

The evidence clearly shows that approval of Mr. Kling had to be obtained before the application could be submitted to the County. This is the factual difference between this case and Waterway Gas ’N Wash, Inc. v. Sandbothe, 550 S.W.2d 617 (Mo.App.1977). In that case no prior approval had to be obtained before a request to rezone the property could be made to the agency authorized to rezone. Second, according to Mayor Strode, after the approval of Mr. Kling was obtained, he, and not plaintiff, would submit the plans to the County.

In view of the testimony of the mayor, we cannot rule, as a matter of law, that the failure of plaintiff to make application to St. Louis County for a building permit resulted in plaintiff not exerting a reasonable effort to obtain the required permits. The issue was properly submitted to the jury.

Defendant next asserts that the court erred in sustaining an objection to testimony offered by it to show the cost of “complying with the contractual provisions concerning the bringing of sewerage, gas, electric and water facilities” to the property because this evidence was “relevant and material to show that [it] had also expended money on the transaction and was ready, willing and able to close the deal."

Defendant argues that plaintiff showed that it had expended in excess of $10,000 on architects and engineers, and that it was “unfair” that the jury not know that defendant had also expended money, and that the action of the court in excluding its offered evidence of expenditures by it was an abuse of discretion. Plaintiff’s evidence was received without objection, and it was material to show the efforts of plaintiff to obtain the required permits. However, in the event that plaintiff did not obtain the permits, after a reasonable effort to do so, there was no contractual provision imposing any obligation on defendant to expend money to bring the stated facilities to the property. The offered evidence did not tend to prove or disprove any issue in the case and was properly excluded.

Defendant’s final contention is that the trial court erred in refusing to grant a new trial because of newly discovered evidence and the discovery that Robert Kling was available as a witness.

Defendant filed an affidavit, executed by Robert Kling on January 16, 1976, in which he stated that after he left his employment with the City of Fenton he had been to Alaska and other parts of the United States, but that he had been back in the St. Louis area “approximately thirty days.” The trial started on January 5 and concluded on January 7. Therefore, Mr. Kling had been in the St. Louis area for over two weeks prior to the trial. There is no indication that defendant requested a subpoena for Mr. Kling.

Mr. Kling also stated in the affidavit that Mr. Koman had presented “preliminary drawings” to him; that he was concerned with the “adherence and requirements of all new and expansion projects as they related to zoning and planning ordinances of the City of Fenton; ” that he met Mr. Ko-man at the City Hall five or six times and also had lunch and coffee with him; that he met with plaintiff’s architect on one occasion; that Mr. Koman “re-submitted different plans with an increased building size which would affect parking; ” that Mr. Ko-man “on numerous occasions continuously jockeyed and altered preliminary drawings” which made it necessary “to completely redo the plan review,” but that this “was done; ” and that Mr. Roman originally submitted plans for an ice rink with bare essentials and at a later date expanded said project to include other items which were facilities to complement the ice rink.

These statements tend to demonstrate an effort on the part of Mr. Roman to obtain the approval. At least they do not indicate a failure on the part of Mr. Roman to exercise a reasonable effort to obtain approval of the plans.

In conclusion, Mr. Rling stated in his affidavit that his recollection of the “last conversation” with Mr. Roman was that he “inferred” that there was a question of whether “his partners could comply with all the zoning requirements at this particular site and resolve it into a feasible financial package,” but if there had been compliance “approval would have been given by the City of Fenton for the project to proceed.” We note that the mayor testified that the Board of Aldermen did not act on applications for building permits, but that as to commercial projects the permit was issued by the County.

The courts have long viewed motions for a new trial on the ground of newly discovered evidence with disfavor and grant them as an exception and refuse them as a rule. Davis v. Illinois Terminal Company, 326 S.W.2d 78, 86 (Mo.1959). The granting or refusing of a new trial for newly discovered evidence is a matter properly within the sound discretion of the trial court whose ruling is not to be disturbed except for clear abuse. Koenig v. Skaggs, 400 S.W.2d 63 (Mo.1966). In Lynch v. Baldwin, 117 S.W.2d 273 (Mo.1938), and also in Gehner v. McPherson, 430 S.W.2d 312 (Mo.App.1968), the requirements to be met before a new trial may be granted on this ground are set forth. We need not enumerate them here, but it is sufficient to state that, aside from other matters, the substance of the affidavit does not indicate the probability of a different result if a new trial were granted. Instead, it tends to support plaintiff’s contention that it made a reasonable effort to obtain the approval of Mr. Rling of its plans so the application could be presented to St. Louis County. We also note that on this appeal there is no contention that plaintiff did not exert good faith efforts to obtain the approval of Mr. Rling, the only contention is that plaintiff did not make a formal application to St. Louis County.

We can only conclude that the trial court did not abuse its discretion in overruling defendant’s motion for a new trial on the ground of newly discovered evidence, or on the ground of the post-trial discovery of the availability of Mr. Rling as a witness.

The judgment is affirmed.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: WEIER, Judge.

text:
    William NANCE, Appellant, v. STATE of Missouri, Respondent.
    No. 37798.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 6, 1977.

      Donald L. Schmidt, Ferguson, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   WEIER, Judge.

On May 3, 1972, the movant, William Nance, was convicted by a jury of assault with intent to kill with malice aforethought. Based on evidence presented by the State that an Eddie James Nance had previously pled guilty to a charge of first degree robbery and that the fingerprints of the man arrested for that charge and calling himself Eddie James Nance were identical to those of William Nance, the trial court found that the appellant had been convicted in 1965 of first degree robbery and so sentenced him under the Second Offender Act to 40 years imprisonment for the assault conviction. That conviction was appealed to this court on the grounds of prejudicial instructions and was affirmed in State v. Nance, 508 S.W.2d 517 (Mo.App.1974).

Movant now seeks relief by a post-conviction Rule 27.26 motion wherein he alleged his sentence should be vacated because he did not have a prior conviction for first degree robbery and so should not have been sentenced under the Habitual Criminal Act. The motion alleged that that conviction was actually that of movant’s brother, Eddie James Nance. The motion also alleged that the movant was denied his right to effective assistance of counsel at his trial on the assault charge because, contrary to mov-ant’s request, his attorney did not file a motion for psychiatric examination on his behalf.

On September 4, 1975, an evidentiary hearing was held on movant’s Rule 27.26 motion and evidence was presented on the issues. On November 21, 1975, the trial court overruled the motion, finding that movant failed to prove that he was not the person convicted of robbery in 1965 and that he also failed to prove that his counsel should have filed a motion for psychiatric examination. This appeal was duly taken from that judgment.

The movant claims error in the trial court’s judgment on each of the issues tried at the evidentiary hearing. There cannot be any error as regards the prior conviction issue, however, because Rule 27.26 does not afford a review of trial errors such as the one of which movant complains. This ground, the insufficiency of the evidence to support his conviction under the Second Offender Act, is such a ground which if he had any basis to pursue should have been raised in his appeal from his conviction. State v. Wiggins, 360 S.W.2d 716, 718[2] (Mo.1962). See also, Elbert v. State, 462 S.W.2d 685 (Mo.1971).

As for the issue of ineffective assistance of counsel, this was properly preserved for appeal. Upon review of the trial court’s finding on a Rule 27.26 motion, we are limited to determining whether that finding is clearly erroneous. Rule 27.26(j); Coleman v. State, 542 S.W.2d 53, 54[2] (Mo.App.1976). We must give due regard to the trial court’s opportunity to judge the credibility of witnesses at the Rule 27.26 eviden-tiary hearing. Bennett v. State, 549 S.W.2d 585, 586[2] (Mo.App.1977). Also, the burden is on the appellant to prove by a preponderance of the evidence that he is entitled to Rule 27.26 relief. Malson v. State, 539 S.W.2d 454, 455[1] (Mo.App.1975). This burden is especially heavy if the ground for relief is ineffective assistance of counsel. Pickens v. State, 549 S.W.2d 910, 912[2] (Mo.App.1977).

We have determined, after examining the transcript of the evidentiary hearing, which includes by stipulation the transcript of the movant’s trial for assault with intent to kill, that the trial court was not clearly erroneous in finding that the mov-ant failed to carry his burden of showing that his counsel was ineffective for not filing a motion for a psychiatric examination. The movant did not show that he was prejudiced by his counsel’s failure to file that motion because he failed to show that there was any reason for his counsel to ask for a psychiatric examination. Counsel may not be found ineffective for failing to ask for a psychiatric examination unless there is some reason he should have asked for one. This is equally true in a situation in which it is claimed failure to move for a psychiatric examination deprived a defendant of an insanity defense as in a situation in which it is claimed such a failure may have resulted in the trial of a defendant incompetent to stand trial. Campbell v. State, 532 S.W.2d 844, 848[7] (Mo.App.1975); Parks v. State, 518 S.W.2d 181, 185[4, 5] (Mo.App.1974).

The only evidence brought forth by the movant on his mental state was that he had been drinking just prior to the incident during which he committed the assault. He had never been under psychiatric treatment, nor could he point to any other signs, symptoms, or indications of bad mental health. There are no indications in the transcript of movant’s trial (where he testified) that he had anything but a normal, rational, and intelligent understanding of the proceedings. At best, at the motion hearing he has proved he was intoxicated when he committed the assault. He has not shown there was any reason for his counsel to suspect he was even suffering from alcoholism, let alone alcoholism with psychosis as required by the insanity defense and incompetency statutes. See §§ 552.010-.030 RSMo 1969. Nor did he show that his counsel actually did suspect his incompetency or insanity as was shown in Miller v. State, 498 S.W.2d 79, 85-88[14-18] (Mo.App.1973). There is no more reason to find movant’s counsel ineffective here than in the similar case of McCarthy v. State, 502 S.W.2d 397, 405[15] (Mo.App.1973).

The judgment is affirmed.

KELLY, P. J., and GUNN, J„ concur.

      . It appears movant is contending his counsel failed to advance his cause in each instance. For that reason, we will address this issue both from the standpoint of incompetence to stand trial and from that of the insanity defense.


author: GUNN, Judge.

text:
    Margaret E. DUFFY, Plaintiff-Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri, Defendant-Respondent.
    No. 38695.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 6, 1977.

      Bruce Nangle, Clayton, for plaintiff-appellant.
    William W. Clinkenbeard, Charles B. Fain, Jefferson City, for defendant-respondent.
   GUNN, Judge.

The employee, Margaret Duffy, appeals from a circuit court judgment which affirmed the Labor and Industrial Relations Commission’s denial of her claim for unemployment compensation benefits. Ms. Duffy contends that the Commission’s findings were not supported by competent and substantial evidence and that the Commission failed to construe with sufficient liberality the stated purpose of the Employment Security Act to provide employment compensation “for the benefit of persons unemployed through no fault of their own.” § 288.020(1) RSMo 1969.

Ms. Duffy was employed as a secretary with the St. Louis University Medical School. Her status was as a probationary employee. After she had been employed approximately two months, she notified her supervisor by telephone that by reason of illness and the treatment she was receiving she would not be returning to work. Ms. Duffy’s supervisor testified at the hearing before the Employment Security appeals tribunal:

“She [Ms. Duffy] at that time indicated that she was receiving day care at Jewish Hospital, that she didn’t know how long the care would last, and, therefore, she wouldn’t be returning to work.”

Ms. Duffy’s supervisor, therefore, considered that Ms. Duffy had terminated her employment; that she had “resigned” of her own volition and had stated, “I will not return.”

Ms. Duffy, on the other hand, maintains that she did not convey or intend to convey to her supervisor that she was permanently quitting her job — only that she was undergoing medical treatment and would be unable to return to work for an indefinite period of time. An obvious conflict exists between Ms. Duffy’s and her supervisor’s version as to the telephone call regarding Ms. Duffy’s illness and the consequential results of the status of her employment. We leave such conflicts for resolution by the hearing tribunal. We review the evidence in the light most favorable to the Commission’s award and in doing so limit our review to ascertaining whether upon the whole record the Commission could reasonably have made its findings and reached its result. Belle St. Bank v. Ind. Com’n Div. of Emp. Sec., 547 S.W.2d 841 (Mo.App.1977); Trail v. Ind. Com’n Div. of Emp. Sec., 540 S.W.2d 179 (Mo.App.1976); La Plante v. Industrial Com’n, 367 S.W.2d 24 (Mo.App.1963). We do not substitute our judgment on the evidence for that of the Commission, unless we find that the Commission’s conclusions could not have been reasonably made on the basis of the evidence before it. Its decision will be set aside only if it is contrary to the overwhelming weight of evidence. Laswell v. Industrial Com’n, 534 S.W.2d 613 (Mo.App.1976); Mid-Continent Aerial Sprayers Inc. v. Industrial Com’n, 420 S.W.2d 354 (Mo.App.1967); La Plante v. Industrial Commission, supra.

Reviewing the evidence in the light most favorable to the Commission’s findings, we believe that there was competent and substantial evidence supporting the Commission’s determination that Ms. Duffy told her supervisor she would be absent from work for an indefinite period of time because of an illness unrelated to employment; that she thereby terminated her employment with St. Louis University Medical School. We therefore are impelled to affirm the judgment. Clark v. Labor and Ind. Rel. Com’n, 549 S.W.2d 573 (Mo.App.1977).

Our decision is based on a finding that as a matter of law Ms. Duffy is disqualified from receiving benefits under § 288.050 RSMo.Supp.1975 which provides:

“1. Notwithstanding the other provisions of this law a claimant shall be disqualified for waiting week credit or benefits until after he has earned wages equal to ten times his weekly benefit amount if the deputy finds
(1) That he has left his work voluntarily without good cause attributable to his work or to his employer . . .

This statutory disqualification provision must be strictly construed, as it denies or limits claimants from benefits under a remedial act. Laswell v. Industrial Comm’n, supra; Crawford v. Industrial Com’n, 482 S.W.2d 739 (Mo.App.1972); Bussmann Mfg. Co. v. Industrial Com’n, 335 S.W.2d 456 (Mo.App.1960). In interpreting this provision, we must, however, follow the legislative intent which is ascertained by applying the plain and natural meaning of the words used in the Act so as to promote its objective. Bussmann Mfg. Co. v. Industrial Com’n, 327 S.W.2d 487 (Mo.App.1959). The precise issue for decision is whether one who terminates employment due to personal illness unrelated to her employment does so voluntarily without good cause attributable to her work or her employer.

In Bussmann Mfg. Co. v. Industrial Com’n, 335 S.W.2d 456 (Mo.App.1960), we held that § 288.050 1(1) may not be read as if there were a disjunction after the word “voluntarily” so that the section imposed dual elements for a finding of disqualification, i. e., that the termination was both voluntary and without good cause attributable to her work or to her employer. The entire clause must be read within its context. Under this interpretation of the section, one terminates employment involuntarily only if there is a legally sufficient reason for leaving which is causally connected to the work or the employer. The law requires the claimant (Ms. Duffy) to establish that there existed “a causal connection between the work and the aggravation of, or contribution to, the disability.” Bussmann Mfg. Co. v. Industrial Com’n of Missouri, 327 S.W.2d 487, 491 (Mo.App.1959). Personal illness of the employee unrelated to her employment will not render termination involuntary unless the illness was caused or aggravated by the work or the employer. La Plante v. Industrial Com’n., supra; Bussmann Mfg. Co. v. Industrial Com’n, 335 S.W.2d 456 (Mo.App.1960); Bussmann Mfg. Co. v. Industrial Com’n, 327 S.W.2d 487 (Mo.App.1959). As Ms. Duffy’s illness was admittedly unrelated to her work or her employment, the required causal connection is absent, and Ms. Duffy must be held as a matter of law to have left her job voluntarily; therefore, she is disqualified for unemployment compensation benefits.

In light of this holding Ms. Duffy’s argument that the purpose of the Employment Security Act requires that her claim for benefits be allowed cannot prevail. A general statement of purpose will not be held to contravene the clear language of a specific disqualification provision. To hold otherwise would be tantamount to a judicial abrogation of the specific provisions of the Act and would render them superfluous.

The judgment is affirmed.

KELLY, P. J., and WEIER, J., concur.

      . In Bussmann Mfg. Co. v. Industrial Com’n of Missouri, 327 S.W.2d 487 (Mo.App.1959), the claimant was unable to establish that there was a causal connection between her inability to work and her employment.

      . “Q. Did either or both of the doctors indicate that your hospitalization was caused or related to your work or your working conditions?”
      “A. [Ms. Duffy] No, I am sure that had nothing to do with it.”

      . Cf. Trail v. Ind. Com’n Div. of Employment Sec., supra, allowed a claim for unemployment benefits after the claimant advised her employer that she was going to have to quit work because of her pregnancy. However, the evidence was undisputed that the claimant was told by her employer that she would not have to quit; that, instead, the claimant was given a leave of absence, understood to be so by both the claimant and the employer. Consequently, when the claimant sought the return of her job after her period of pregnancy and was refused work, the effect was that the claimant was laid off work and her employment was not caused by her own fault. This is not the situation here.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Robert SCHUMACHER, Appellant.
    No. 38040.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 6, 1977.
    Prank Anzalone, Asst. Public Defender, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Pros. Atty., Thomas E. Dittmeier, Asst. Pros. Atty., Clayton, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant guilty of assault with intent to do great bodily harm with malice (§ 559.180, RSMo.1969) in shooting a police officer and the court sentenced him to 19 years’ imprisonment.

Defendant does not question the sufficiency of the evidence but bases his appeal on the prosecutor’s statements on voir dire and closing argument. We limit our review to rulings made at trial, preserved in defendant’s motion for a new trial and carried forward in his appellate brief. Rules 79.03 and 84.13(a).

On voir dire the prosecutor acknowledged the presumption of defendant’s innocence and the state’s burden of proving guilt beyond a reasonable doubt, but added: “You all understood the distinction between any doubt and reasonable doubt, I’m sure.” Defense counsel objected that a comment on the meaning of reasonable doubt was improper. The objection was overruled. In defendant’s motion for a new trial his only reference to the point was that the trial court erred in refusing to declare a mistrial. The trial court properly denied that point since it was first raised in defendant’s after-trial motion. Rule 79.03, VAMR. Accordingly, the point is not before us on appeal. Rule 84.13(a), VAMR.

Defendant’s second point challenges the overruling of his objection to the prosecutor’s closing argument: “And think about every other police officer out there. They have to go up to cars every day, and they are stopping cars with the likes of Robert Schumacher in there.”

A trial judge has wide discretion in controlling oral argument. State v. Johnson, 539 S.W.2d 493[40] (Mo.App.1976). His rulings are reversible error only when they are “plainly unwarranted and clearly injurious.” State v. Kimmins, 514 S.W.2d 381[1, 2] (Mo.App.1974). Here, the essence of the prosecutor’s remark was that the jury should consider police officers’ dangerous encounters in law enforcement. A prosecutor may vigorously argue that juries have a responsibility for suppressing crime, State v. Laster, 365 Mo. 1076, 293 S.W.2d 300[7, 8] (1956) and the evil results to society from a jury’s failure to do its duty. State v. Groves, 295 S.W.2d 169[8] (Mo.1956). Viewing the prosecutor’s argument in the light of these principles, we conclude the trial court did not err in overruling defendant’s objection.

Judgment affirmed.

DOWD and SMITH, JJ., concur.


text:
    Juanita Lee ROOK, Plaintiff-Appellant, v. JOHN F. OLIVER TRUCKING COMPANY, Defendant-Respondent.
    No. 38781.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 6, 1977.

      John L. Woodward, Steelville, for plaintiff-appellant.
    B. B. Turley, Rolla, for defendant-respondent.
   WEIER, Judge.

This appeal represents the latest in a long series of legal proceedings arising out of a truck-automobile collision that occurred on December 11, 1971, in Hermann, Missouri. The collision occurred when the plaintiff’s parked automobile was struck by the defendant’s truck, which was rolling down an incline because its parking brakes had not been applied. The resulting damage rendered the plaintiff’s car inoperable. Two months later, on February 15, 1972, at the request of defendant, the car was taken to a certain garage for repairs which were to be paid by defendant. This request came eight days after plaintiff had filed suit against the defendant alleging its negligence in causing the collision.

After default judgment against defendant, a motion to set aside judgment was filed. From an adverse ruling defendant appealed and on December 11, 1973, this court, in Rook v. John F. Oliver Tracking Company, 505 S.W.2d 157 (Mo.App.1973), decided that the defendant’s motion to set aside judgment should have been sustained. This court remanded the cause, instructing the lower court to set aside the judgment and give the plaintiff her choice of accepting a new judgment for $2,000 ($1,500 for diminished market value of the car and $500 for loss of its use) or of proceeding anew on an amended petition as to all issues, on which the defendant would be able to plead and defend.

The plaintiff elected to have a new judgment entered for $2,000. This was done in the circuit court on September 18, 1974. The defendant on the same day had tendered and deposited with that court $850.89, stating that this sum, together with the $1,149.61 it had already paid for fixing the car, totalled the $2,000 owed the plaintiff. Believing she was still owed $1,149.61, the plaintiff, sought by execution to recover that sum.

On August 11, 1975, the execution was issued but was returned by the sheriff unsatisfied. On November 5, 1975, the plaintiff filed a motion for judgment against the surety on a bond which had been filed by defendant and the Fidelity and Deposit Company of Maryland in the sum of $10,000 as a delivery bond on a prior execution, apparently in accordance with Rule 76.27. The defendant filed, on September 1, 1976, a motion in opposition to plaintiff’s motion for judgment against surety and sought to compel plaintiff to satisfy the judgment. The defendant contended the $2,000 judgment had already been satisfied by virtue of the $850.39 it had paid in to the circuit court and the $1,149.61 it had paid for the repair of the plaintiff’s car. On December 6, 1976, the circuit court sustained the defendant’s motion and ordered that the judgment be satisfied. The plaintiff duly appealed the court’s order and it is that appeal that is now before us.

The plaintiff and the defendant agree on several points in this case. It is agreed that this court, in its earlier decision, allowed the plaintiff a judgment for $2,000, that portion of which allowing $500 for loss of use of the car not being in controversy. It is agreed that the defendant paid to the garage $1,149.61 for repairs done to the plaintiff’s car. It is also agreed that the defendant paid the plaintiff $850.39 in damages, $500 for loss of use and $350.39 towards the $1,500 award for damage to the plaintiff’s vehicle. What is not agreed on is whether the $1,149.61 payment to the garage can be credited against the $1,500 award as well, completely satisfying it.

The defendant contends that the only measure of damages allowed for a car damaged in a collision is the difference between the market value of the car immediately before the collision and its market value immediately after the collision and that this was the measure of damages proved at the hearing and represented by the $1,500 award. It also contends that because an injured party may have just one satisfaction for his injuries, the $1,149.61 payment for repairs to the car must be deducted from the $1,500 award for diminished market value as an advance payment under § 490.710 RSMo.Supp.1975. On the other hand, the plaintiff contends that the measure of damages proved at the hearing and represented by the $1,500 award was the difference between the market value of the car immediately before the collision and its market value immediately after the repairs were performed on the car. Since this measure of damages already gave the defendant credit for the repair bill payment, the plaintiff contends § 490.710 does not apply and no further deduction is allowable.

Section 490.710 RSMo.Supp.1975 speaks in absolute terms of deducting any advance payment of damages, made because of possible tort liability, from any final settlement made or judgment entered in favor of an injured party. In reality, however, “the statute merely follows the general law that an injured party may have but one satisfaction for his injuries.” Taylor v. Yellow Cab Company, 548 S.W.2d 528, 534 (Mo.banc 1977). The purpose of the statute, then, is to prevent a double recovery for one loss. It is true that a person whose car was damaged in a collision may not recover both for the difference between the market values of the car immediately before and immediately after the collision and for the cost of repairing the car, as that would constitute a double recovery. Gilwee v. Pabst Brewing Co., 195 Mo.App. 487, 193 S.W. 886, 887[1] (1917). But it would not constitute a double recovery for such a person to recover both for the cost of repairing the car and for the difference between the market values of the car before the collision and after the repairs. See, General Exchange Ins. Corporation v. Young, 206 S.W.2d 683, 691[11] (Mo.App.1947), aff’d 357 Mo. 1099, 212 S.W.2d 396 (1948); Gilwee v. Pabst Brewing Co., supra, 193 S.W. at 887[1],

It is clear that when the plaintiff accepted the defendant’s payment of the repair bill on her behalf, she recovered the cost of repairing her car. If she then sued for the difference between the value of her car before the collision and its value after the collision, § 490.710 would come into play to prevent her from getting a double recovery. But if she sued instead only for the difference between the value of her car before the collision and its value after the repairs, § 490.710 would not be preventing a double recovery and so would not be applicable.

The question, then, is which of these two market value differences did the plaintiff get an award for. The defendant first contends that the only measure of damages allowable in such an action as this is the difference between the market value of the car before the collision and its value after the collision. Although this is generally the proper measure of damages in an automobile collision case in Missouri, it is not the only measure of damages allowable; also allowable are the cost of repairs and the difference between the market value of the car before the collision and its value after the repairs. Winter v. Elder, 492 S.W.2d 146, 148[3, 4] (Mo.App.1973); Langdon v. Koch, 393 S.W.2d 66, 69-70[5] (Mo.App.1965); General Exchange Ins. Corporation v. Young, supra at 691[11]; Gilwee v. Pabst Brewing Co., supra, 193 S.W. at 887[1]. Cf. Conner v. Aalco Moving and Storage Co., 218 S.W.2d 830, 831-32[7] (Mo.App.1949).

Turning now to the question of whether the $1,500 award was for the difference between the market values before and after the collision or for the difference between the values before the collision and after the repairs, we turn to what was awarded plaintiff in- the judgment she elected to take following our prior decision. In that opinion the option that plaintiff was offered and which she accepted read:

. . upon setting aside the judgment as entered, enter a new judgment in the amount of $2,000.00 representing the aggregate of the diminution of the market value of the vehicle proved at the hearing ($1,500.00) and the loss of use proved, but not exceeding the amount prayed for in the original petition ($500.00) . . . ” Book v. John F. Oliver Trucking Company, supra at 162.

The testimony with regard to diminution of market value at the hearing was presented by plaintiff. Her proof there as regards damages to her ear went to the difference in its value before the collision and after the repairs. Establishing that the plaintiff had gotten her car back from the garage repaired only two days before the hearing, her testimony clearly referred to the car’s diminished value after repairs. The first time she referred to the car’s value her testimony went as follows:

“Q. Now, what was the condition of this vehicle just prior to the collision with the Oliver truck?
A. It was in very good condition. It was a very clean car and it was valued at least $3900.
Q. Is it your testimony that the reasonable market value of your vehicle on December 11, 1971, just prior to this collision, was $3900?
A. Yes, sir.
Q. What is the condition of your vehicle at this time, since you’ve gotten it back ?
A. Well, it isn’t repaired properly. I will have to put more work — I mean it involves more work. But I would say it’s probably worth like maybe $2400.” (emphasis added)

She then described the unsatisfactory nature of the repairs to her car. After that she referred again to its value as follows:

“Q. And do you have any opinion as to the fair and reasonable market value of that automobile as of this time?
A. Well, like I said awhile ago, probably around $2400 would be all I could get.” (emphasis added)

Since at the hearing the plaintiff proved only the difference between the market value of the car before the collision and its value after repairs, the trial judge’s $1,500 award for diminished market value must be deemed to have been on that measure. This was the basis of her evidence as to damages and formed the basis for the option afforded her in our prior opinion, which was “the diminution of the market value of the vehicle proved at the hearing." Rook, supra at p. 162 (emphasis added).

We conclude, therefore, that the $1,500 award to plaintiff was for the difference between the market value of the car before the collision and its value after repairs. As a result, the defendant is not entitled to deduct the $1,149.61 payment for repairs from the judgment against it. The action of the circuit court in sustaining the defendant’s motion to require plaintiff to satisfy judgment and its order satisfying judgment is reversed. Because the court below did not consider the motion for judgment against surety for the reason it determined the judgment satisfied, the case is remanded to the court for that purpose and for such other process as may be required to satisfy the judgment balance of $1,149.61 together with interest from September 18, 1974, the date when plaintiff elected to accept the option offered her by this court.

KELLY, P. J., and GUNN, J., concur.


author: STOCKARD, Special Judge.

text:
    Mary Christine LeBEAU, Respondent-Appellant, v. Arthur Lewis LeBEAU, Appellant-Respondent.
    Nos. 37851 and 38091.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 6, 1977.
    Charles P. Todt, Lorraine W. Poscover, Todt, Hammer & Poscover, St. Louis, for respondent-appellant.
    William R. Dorsey, Dorsey & Dorsey, St. Louis, for appellant-respondent.
   STOCKARD, Special Judge.

After eighteen years of marriage and five children the marriage of Mary Christine and Arthur Lewis LeBeau was dissolved upon the petition of Mary Christine.

The petition for divorce was filed August 3, 1973. The husband was properly served but he filed no responsive pleading. However, he was personally present in court, but without counsel, on May 6, 1974 when a hearing was held on the wife’s motion for child support and maintenance pendente lite. On October 4,1974, the wife filed an amended petition in which she sought relief pursuant to the new Dissolution of Marriage Act, §§ 452.300=152.415 Laws of Missouri 1973. An alias summons was issued and served on the husband. No responsive pleading was filed. After several continuances, the case was set for trial on June 5, 1975. On that date the husband was not present, but the wife’s evidence was received and the cause submitted. The court entered its decree of dissolution on August 1, 1975. On September 2, 1975 the husband filed a motion pro se to set aside and vacate the decree of dissolution, which was overruled. The husband has appealed, and his only point is that the trial court lacked jurisdiction to enter the decree of dissolution because it failed to comply with the requirements of § 452.320(1), which provides in its parts here material that “If * * one of the parties has * * * stated [that the marriage is irretrievably broken] and the other has not denied it, the court, after considering the * * * petition or statement, and after a hearing thereon shall make a finding whether or not the marriage is irretrievably broken, and where one of the parties has not denied it the court shall cause to be deposited in the United States mail an envelope, certified or registered, deliver to the addressee only, return receipt requested, and with postage prepaid, enclosing a notice to the party not denying that absent objection from said party being filed within ten days after date of mailing that a finding the marriage is irretrievably broken and an order of dissolution of the marriage may be entered of record. The failure of such party to receive such notice shall not impair the power of the court to enter an order dissolving the marriage or the validity of such an order; * * * >>

The record before us is silent as to whether the notice provided for in § 452.320(1) was sent. In the motion to vacate the judgment it was alleged that “no such notice was mailed * * * by the Court,” but that allegation does not prove itself, and there was no other proof.

In the Uniform Marriage and Divorce Act, from which much of the Missouri Dissolution of Marriage Act was taken, there is no provision comparable to the ten day notice provision in § 452.320(1). We find only one case in which the effect of the failure to comply with this provision has been considered. In Brand v. Brand, 534 S.W.2d 628, 631 (Mo.App.1976), this court stated: “We also observe that § 452.320(1), relating to the ten day notice, is not jurisdictional, in that the fact that a party fails to receive such notice does not attenuate or affect the trial court’s power to enter a dissolution of marriage decree or affect the validity of the court’s order in that regard.” We agree with the rule announced in the Brand case, and in his brief to this court appellant-husband has presented no persuasive argument why that rule should not now be followed. Assuming the court did not mail the notice as contemplated, it was a procedural requirement and the failure to do so was not jurisdictional.

On February 3, 1976, the husband was ordered to show cause on February 18 why he should not be held in contempt for failing to comply with the decree of dissolution which, in ordering a distribution of the marital property, directed the husband to convey his interest in certain property to the wife. The decree also provided that the husband pay certain amounts to the wife as maintenance and child support. After at least one continuance the matter came up for hearing on March 28. The husband was present and was represented by counsel. The wife was not present. Her counsel explained to the court that she lived in Arkansas with her minor children and “could not be coming back every time,” and offered in evidence an affidavit of the wife to prove non-compliance on the part of the husband. The court commented that Rule 55.28 provides for discretion in the court as to the proof in support of motions, and that it would “require oral testimony or deposition in this case.” Counsel for the wife then requested a continuance for one day to arrange to have the wife present to testify, but upon the objection of husband’s counsel that he would be “tied up pretty much all day tomorrow” the request was denied. Counsel for the wife then called the husband as a witness, but he refused to answer any question material to his failure to comply with the court’s decree directing that he convey certain property to the wife on the basis that the answer would tend to incriminate Mm. He was not asked whether he had complied with that part of the decree directing the payment of money as maintenance and child support.

The wife has appealed, and her appeal and that of the husband were consolidated by this court.

It is with some reluctance that we decline to rule that the trial court abused its discretion in refusing to consider the affidavit as proof of non-compliance on the part of the husband to convey to the wife his interest in specified property. Although the trial judge hearing the motion for contempt was not the trial judge who entered the decree of dissolution, the decree was a part of the court file and the issue was simply whether the husband had executed the required conveyances. He either had or he had not. However, before the husband could be held in contempt for failure to pay sums of money decreed by the court, the court was to satisfy itself as to the requirements set forth in Teefey v. Teefey, 533 S.W.2d 563, 566 (Mo. banc 1976), where it is stated that “Before ordering imprisonment [in a contempt proceeding for failure to pay maintenance or child support] trial courts should be convinced that the person is financially able to make the required payment or that he was intentionally and contumaciously placed himself in a position so that he could not comply with the court’s orders.” There was no such proof.

We affirm the judgment in both appeals. But the wife may again move that the husband be cited for contempt if he still has failed to comply with the decree of dissolution. This case, with many continuances, has been in the courts now for over four years, and in the event further proceedings are necessary it is hopefully expected that the trial court will not tolerate uncalled-for delays that could operate to the detriment of innocent minor children.

SIMEONE, C. J., and HOUSER, Special J., concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, Plaintiff-Appellant, v. J & S SEWER CONSTRUCTION COMPANY, INC., and Fee Fee Trunk Sewer, Inc., Defendants-Respondents.
    No. 37303.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 6, 1977.

      Kortenhof & Ely, Robert L. Nussbaumer, St. Louis, for plaintiff-appellant.
    Fitzsimmons & Fitzsimmons, Attys., Inc., Daniel J. McMichael, Clayton, for Fee Fee Trunk Sewer, Inc.
    David Welsh, Bridgeton, for J & S Sewer Const. Co., Inc.
   NORWIN D. HOUSER, Special Judge.

Hartford Accident and Indemnity Company recovered a judgment for $5,000 in its suit for subrogation against J & S Sewer Construction Company and Fee Fee Trunk Sewer, Inc. Defendants’ motions for a new trial were sustained. Hartford appealed.

A new trial was granted for failure on the part of Hartford to make proof in four respects, which we consider in order.

First, failure to present evidence of plaintiff’s corporate entity. In its amended petition plaintiff alleged its corporate existence. Defendants’ answers stated they did not have sufficient information to form a belief as to the truth of the allegation and therefore denied the allegation. Neither defendant raised an issue as to the legal existence of Hartford by specific negative averment with supporting particulars as required by § 509.140, RSMo 1969 in order to place upon Hartford the burden of proof on the issue of Hartford’s legal existence or capacity to sue. Accordingly, under § 509.-140 it was sufficient to aver the ultimate fact, and plaintiff was not obligated to introduce evidence on the issue. United Farm Agency v. Howald, 263 S.W.2d 889, 893 (Mo.App.1954).

Second, failure to introduce in evidence the insurance policy issued by Hartford to Upson Construction Company and failure to prove the policy provisions relied upon as the basis for Hartford’s claimed right of subrogation. Hartford pleaded that on December 10,1971 there was in effect a policy of insurance issued to Upson providing liability coverage in connection with its construction business; that Upson constructed a residence building which it sold to H. D. Mephan; that pursuant to subcontract with Upson, J & S Sewer Construction Company installed a sewer system leading to the residence building; that through the negligence of J & S in its installation the basement was flooded; that Fee Fee Trunk Sewer, Inc. was negligent in failing to inspect the sewer system constructed by J & S; that an inspection would have revealed the improper installation; that Mephan, damaged by flooding, made a claim against Upson for breach of implied warranty of fitness for the purpose intended; that to minimize damages Hartford negotiated a settlement of Mephan’s claim against Up-son, the insured, for $5,000, after first notifying J & S and Fee Fee of the claim and of Hartford’s intention to settle the claim should they fail to do so; that they did so fail; that Hartford settled Mephan’s claim for $5,000 and that “Under and by virtue of said policy of insurance issued by plaintiff to said Upson Construction Company, plaintiff was and is now subrogated to all rights of recovery the said Upson Construction Company may have against the defendants arising out of said payment.” Hartford prayed for judgment for $5,000 and attorneys’ fees.

Hartford did not introduce in evidence the policy or a file copy of the policy. All that appears is that it was “a comprehensive business policy providing Upson with complete operation coverage.” What that means was not developed. There was nothing to show that under the policy Hartford had the duty or authority to negotiate a settlement of Mephan’s claim, or that Hartford was obligated to pay his unliquidated claim. Hartford did not prove that the policy contained a subrogation provision, and consequently did not prove the terms of any subrogation provision. Hartford did not produce as a witness the adjuster who made the settlement with Mephan. He was no longer with the company and his whereabouts were unknown. Hartford’s principal witness was James Trelford, its senior claims representative. Having no personal knowledge of the transaction he testified from the records, of which he was custodian. From the investigative file he testified that Hartford had in effect a comprehensive business policy of insurance providing Upson with complete operation coverage; that Hartford notified J & S and Fee Fee that a claim had been made and that Hartford would attempt settlement; that Hartford “hoped” that J & S and Fee Fee “would agree to a percentage of the settlement or come in and take over negotiations”; that J & S and Fee Fee did not settle the claim of Mephan; that Hartford settled Mephan’s claim; that Hartford gave Mephan a draft for $5,000, and that Me-phan gave Upson a release; that although Hartford “felt” it was not liable — that it had no contractual obligation to pay a claim against Upson that was not Upson’s fault— it “felt” it had an obligation to settle the claim, in its discretion, since the carriers for J & S and Fee Fee had failed to contribute to the settlement. Trelford admitted he had no documents executed by Upson recognizing Hartford’s right to proceed against J & S and Fee Fee. On cross-examination Trelford was asked but failed to state under what policy provision Hartford determined that it was obligated to pay money to Mephan. He said Hartford paid the $5,000 “to get this claim settled.” The release signed by Mephan released Upson from any and all claims on account of flood damage. There is no evidence that Upson released Hartford from liability under its policy or that Upson assigned to Hartford its claims and rights against J & S for negligent performance of its subcontract, or against Fee Fee for negligent failure to inspect.

It is not always necessary in subro-gation cases arising out of insurance policy provisions to produce the policy or make proof of the exact terms of the policy provision for subrogation. Thus, the insurer may recover against a negligent third party on the theory of subrogation, without introducing the policy in evidence, where testimony by the insured showing that the policy obligated the insurer to make the payment is admitted in evidence and where, upon insurer making the payment, insured releases insurer of its liability on the policy and assigns to insurer insured’s rights and causes of action against the negligent third party. General Exchange Ins. Corp. v. Young, 206 S.W.2d 683 (Mo.App.1947), aff., 357 Mo. 1099, 212 S.W.2d 396 (1948). The release and assignment in that case clearly showed that the parties to the contract of insurance intended that the insurer be sub-rogated to the rights of the insured.

In the case at bar, however, there is no clear showing of any obligation to pay or intention that Hartford be subrogated. There is no evidence that Upson released Hartford of liability on its policy, or that Upson assigned to Hartford its claims and causes of action against J & S and Fee Fee. The policy not being before us we are left in the dark on the question whether it contained a provision relating to the subject of subrogation and, if so, whether that provision allowed, or forbade, subrogation or whether the policy was silent on the subject. “[T]he terms of the [policy], and the conditions arising from its performance, may be such as to show that the parties did not intend that subrogation should result and in such case it will not result. Equity will not engraft this doctrine on the transaction in the face of a contract that negatives the idea of subrogation. * * * [Equity] will not apply [the doctrine] if the contract either expressly or by legal implication forbids it.” Capen v. Garrison, 193 Mo. 335, 92 S.W. 368, 370 (1906). This is an action at law, and not in equity, but the same considerations apply. Having alleged that its right to subrogation arises “under and by virtue of” the policy of insurance, Hartford had the burden of proving that Hartford had authority to negotiate the settlement and an obligation to pay the amount agreed upon, and of proving either that the policy contained a provision allowing subrogation or, at the very least, that to allow subrogation would not be inconsistent with the terms of the contract of insurance. Hartford failed to sustain this burden, and for this reason the order granting a new trial must be affirmed.

Third, failure to prove that Hartford was obligated to pay $5,000 to Mephan. As indicated there was no substantial evidence of Hartford’s obligation under the policy. Hartford has a copy of the policy in its possession, according to Mr. Trelford. If on retrial the copy is produced, properly accounted for and received in evidence the policy provisions will prescribe the extent and nature of Hartford’s obligation and rights.

Fourth, lack of evidence of the value of the contents of the dwelling allegedly damaged. Hartford’s witness testified to the existence of a list of the articles damaged, prepared by the owner of the damaged property, with a dollar value placed upon each article by him, showing original cost, depreciation taken, and the net amount claimed; that Hartford’s representative examined the articles, went over the list, and both parties agreed upon the net amounts of damage, but there was no testimony as to the total amount of the items listed and the list was not offered or received in evidence. Hartford takes the position that it was not obliged to prove the value of the damaged property; that the amount paid is conclusive on the defendants, in the absence of fraud or collusion, and that Hartford is entitled to recover the full amount paid in settlement under the circumstances of this case. Ordinarily the party seeking indemnity based on the settlement of a claim for damages to property must prove that the settlement effected was fair and reasonable, Wilson v. Massachusetts Bonding & Ins. Co., 238 Mo.App. 882, 190 S.W.2d 944, 947[3](1945); Globe Indemnity Co. v. Schmitt, 142 Ohio St. 595, 53 N.E.2d 790, 794 (1944), and in the absence of other considerations not so far appearing in this case Hartford would be well advised to make such proof on retrial.

The order setting aside the judgment for $5,000 and granting a new trial as to both defendants is affirmed.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.


text:
    Ricky JONES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38437.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 6, 1977.

      Ira M. Young, St. Louis, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant Ricky Jones appeals the denial of his Rule 27.26 motion. He was convicted of first degree robbery and sentenced under the Second Offender Act to 25 years’ imprisonment. We affirmed in State v. Jones, 528 S.W.2d 14 (Mo.App.1975).

By his Rule 27.26 motion movant alleges ineffective assistance of counsel because his court-appointed counsel (1) did not interview him until three days before trial, (2) did not interview alibi witnesses and (3) failed to interview state’s witnesses.

At an evidentiary hearing movant testified no attorney met with him during his six months in jail; that trial counsel Frederick Buckles met with him only twice, the first time being only three days before trial. Movant testified that at the first meeting he told Mr. Buckles there were alibi witnesses but counsel did not ask their names and movant did not volunteer them; that counsel took no notes during the interview.

Movant further testified that at the second meeting he gave counsel the names of six alibi witnesses, including Karen Jones and Barbara Harvey, telling him they were down at the school and saw him there during the robbery. But movant testified counsel told him an interview with Karen Jones indicated she would be a sufficient alibi witness and the other five persons would not be necessary. Movant testified the uncalled witnesses would have testified to the same alibi as Karen Jones, but at his evidentiary hearing movant called only Barbara Harvey.

Movant’s trial counsel, Mr. Buckles, testified: Movant was interviewed four days after his arrest by an attorney from the public defender’s office and another attorney appeared with movant at the preliminary hearing; Mr. Buckles was subsequently assigned to the case for trial. His notes showed he had two interviews with movant. Those notes also named possible witnesses given him at the first meeting, with additional names given at the second interview.

Mr. Buckles testified his trial preparation included examining the preliminary hearing transcript, the police reports, evidence of movant’s fingerprints, filing a motion to suppress lineup identification, examining the scene of the crime and viewing the state’s photos to be used at trial.

Mr. Buckles further testified the next part of his investigation consisted of interviewing witnesses, that being done by the public defender’s investigator. After this, the name of Karen Jones (whose name movant had not given counsel) came up. In interviewing her, counsel determined that only she would testify to an alibi. Mr. Buckles denied movant ever gave him the name of Barbara Harvey as an alibi witness.

At the evidentiary hearing Barbara Harvey testified she was at a nearby schoolyard from 12:00 noon to 3:30 and while swimming saw movant playing basketball there; that she then left to go to Speckhart’s drug store and learned it had been robbed; that she saw three men running from the drug store, but did not recognize movant as one of them. Movant called none of the other persons he says he had told counsel about.

In denying movant’s motion the trial court found Barbara Harvey’s testimony unbelievable. Reciting trial counsel’s pretrial efforts, the court found Mr. Buckles sufficiently prepared the case.

On appeal from the denial of a Rule 27.26 motion we determine whether the judgment is clearly erroneous. Rule 27.26(j). As to credibility, we consider the trial court’s opportunity to view the witnesses and weigh their testimony. McLarty v. State, 536 S.W.2d 173[3] (Mo.App.1976).

Trial counsel’s effectiveness cannot be measured by the time spent with his client, absent a showing more time was needed. Roulette v. State, 504 S.W.2d 331[2] (Mo.App.1974). “A movant who contends inadequate investigation by counsel has the burden of showing that a fuller investigation would have uncovered evidence which would have improved his trial position and that he was deprived of evidence of substance by such neglect to his prejudice.” Fritz v. State, 524 S.W.2d 197[2] (Mo.App.1975); Williams v. State, 536 S.W.2d 190[6] (Mo.App.1976). Further, movant’s claim of ineffective assistance of counsel fails if it is not shown “that on retrial there will be substantial evidence to support a defense which was not available at the previous trial because of counsel’s failure to conduct a proper investigation.” Floyd v. State, 518 S.W.2d 700[10] (Mo.App.1975).

The record here fails to indicate trial counsel’s investigation was not diligent and complete. He reviewed the state’s evidence, including transcripts, police reports, lineup procedures wherein movant was identified by the three victims, and physical evidence. He also moved to suppress identification. After consulting with movant, he caused several persons named by movant as possible witnesses to be interviewed. The investigation uncovered another witness, Karen Jones. From the interview with her, counsel concluded she was the only relevant alibi witness. The trial transcript on the appeal shows counsel was justified in making this determination. At trial, Karen Jones testified movant was at her house since the previous night and had stayed there overnight. The records demonstrate rank disparity in movant’s trial evidence with that at the evidentiary hearing. Barbara Harvey’s evidentiary hearing testimony contradicts the alibi testimony given by Karen Jones at trial. We find the trial court was not clearly erroneous in resolving the conflict between counsel’s testimony and that of movant in favor of counsel.

Movant presented no evidence showing trial counsel failed to perform his duty to movant’s prejudice; his allegation of ineffective assistance of counsel was properly denied.

Judgment affirmed.

DOWD and SMITH, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Tommy JONES, Defendant-Appellant.
    No. 38769.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 6, 1977.

      Robert C. Babione, Public Defender, Terry Burnet, Asst. Public Defender, St. Louis, for defendant-appellant.
    George A. Peach, Circuit Atty., Terrence J. O’Toole, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant was convicted of two counts of robbery with a dangerous and deadly weapon. Defendant’s conviction was based on the positive identification of him by the two victims of the robbery and two other eye witnesses. The identification of defendant was unequivocal. The sole issue on appeal is whether the trial court committed plain error in failing to give MAI-CR 2.70 on verdict possibilities, as the defendant was charged with distinct offenses in separate counts.

Defendant failed to raise this point at trial and in his motion for new trial. Thus, the point has not been preserved for appeal review, and we limit our inquiry to whether the omission was plain error causing manifest injustice under Rule 27.-20(c). State v. Johnson, 537 S.W.2d 816 (Mo.App.1976). We find no plain error to exist.

Judge Clemens in State v. Johnson, supra, gives a concise and complete answer to defendant’s argument regarding the omission of the MAI-CR 2.70 instruction. In Johnson, the defendant made the identical complaint as in this case — that the trial court erred in failing to give MAI-CR 2.70 requiring separate consideration of the evidence on each of the two felony counts. It was held in Johnson that there was no manifest injustice. Hence, there was no plain error for failing to give MAI-CR 2.70, as there were separate verdict directors on each count, “each carrying a tail directing acquittal if the jury did not believe every submitted element.” In Johnson, the jury was also given a separate MAI-CR 3.02 converse instruction to each verdict director, and separate verdict forms for each count.

The identical situation exists in this case as in Johnson with regard to the verdict directors, converse instructions and separate forms of verdict. This case falls squarely within the ambit of State v. Johnson, supra, and we affirm the judgment.

KELLY, P. J., and WEIER, J., concur.


text:
    Lesley Howard SPEIGHTS, Appellant, v. STATE of Missouri, Respondent.
    No. 38627.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 6, 1977.
    Bell, Wilson, Harris, Kirksey & Thomas, Henry Thomas, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, David L. Baylard, Asst. Attys. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Movant appeals the trial court’s denial of his second Rule 27.26 motion alleging ineffective assistance of counsel. We affirm.

In his woefully deficient brief, mov-ant has raised two alleged points of error, asserting that he was denied effective assistance of counsel in the trial of his first degree robbery conviction, affirmed in State v. Speights, 478 S.W.2d 356 (Mo.1972), and on his initial 27.26 motion.

This is the second Rule 27.26 motion that movant has filed. On November 27, 1972, movant filed a motion alleging, among other things, that he was denied effective assistance of counsel at trial. During the evidentiary hearing on the first 27.26 motion and after the following testimony, movant voluntarily withdrew his complaint regarding his assistance of counsel:

“Q. Are you stating to the court that you were satisfied with Mr. Haw’s [trial counsel] representation at the time you were at trial in January, 1971?
“A. Yes sir. I truthfully believe Mr. Haw did all he could.
“Q. (By Mr. Horn) [Movant’s first 27.26 hearing counsel] And, Mr. Speights, in regard to my representation, are you satisfied with the job I’ve done for you?
“A. Yes, I am.
“Q. Is there anything further that you think I could do to improve your situation or to further your cause?
“A. No.
“Q. Mr. Speights, you have no complaints whatsoever with respect to Mr. Haw?
“A. That’s correct.”

There are at least four reasons for affirming the judgment, aside from the fact that movant’s brief has failed to preserve anything for review:

1. The movant’s own testimony makes it manifest that there were no complaints as to his representation at trial or at his first 27.26 hearing and that no basis existed for a charge of ineffective assistance of counsel.

2. This is a second 27.26 motion by defendant asserting ineffective assistance of counsel,—a matter specifically interdicted by Rule 27.26(d). Cruz v. State, 545 S.W.2d 717 (Mo.App.1977).

3. Defendant, in this motion, is apparently attacking the effectiveness of his counsel on his first 27.26 motion—an avenue of judicial maneuvering not available for him; Rule 27.26 does not afford a basis for challenging effectiveness of counsel at a prior 27.26 proceeding. Harkins v. State, 521 S.W.2d 9 (Mo.App.1975).

4. Inasmuch as defendant raised the issue of ineffective assistance of counsel in his first 27.26 motion, he may not resurrect it again on this subsequent motion, albeit that it was ultimately withdrawn, Newman v. State, 481 S.W.2d 3 (Mo.1972).

Judgment affirmed.

KELLY, P. J., and WEIER, J., concur.

      . For instance, the two alleged points of error read:
      “The assistance of counsel was so ineffective as to deny appellant assistance of counsel and thereby deny appellant due process of law as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
      “The Trial Court’s endial [sic] of appellant’s amended 27.26 motion of August 31, 1976 denied appellant due process of law.”
      Neither point states what actions of the trial court are specifically sought to be reviewed, nor does either state why the trial court’s ruling is erroneous. Each is a mere abstract statement in violation of Rule 84.04(d). State v. Redd, 550 S.W.2d 604 (Mo.App.1977).


author: PER CURIAM.

text:
    Luke John WATKINS, Petitioner-Respondent, v. Ruby F. WATKINS, Respondent-Appellant.
    No. 10680.
    Missouri Court of Appeals, Springfield District.
    Sept. 13, 1977.
    William A. Moon, Springfield, for petitioner-respondent.
    Ivella McWhorter Elsey, Springfield, for respondent-appellant.
   PER CURIAM.

On December 21, 1976, the Circuit Court of Greene County entered a dissolution of marriage decree. On January 13, 1977, 23 days after the decree was entered, appellant filed a motion to set aside the decree and to grant a new trial. On May 6, 1977, appellant’s notice of appeal was filed.

Rule 73.01, V.A.M.R., requires motions for new trial in cases tried to the court to be filed “. . . not later than 15 days after the entry of judgment . . .” A timely after-trial motion postpones the finality of the judgment until such time as the motion has been disposed of. Rule 78.-04, V.A.M.R. Otherwise, the judgment becomes final for purposes of appeal at the expiration of 30 days following entry of the judgment. Rule 81.05(a), V.A.M.R. Here, appellant relied upon an untimely motion for new trial with the result that appellant’s notice of appeal was also untimely. Rules 81.05(a) and 81.04, V.A.M.R.

We are duty bound to determine the timeliness of the notice of appeal because this court does not acquire appellate jurisdiction in the absence of a timely notice of appeal. Kuhn v. Bunch, 529 S.W.2d 200(1) (Mo.App.1975).

The appeal is dismissed.

All concur.


text:
    In Re Marriage of Wanda JOHNSON and LeRoy Johnson. Wanda JOHNSON, Respondent, v. LeRoy JOHNSON, Movant-Appellant.
    No. 10425.
    Missouri Court of Appeals, Springfield District.
    Sept. 13, 1977.

      Jeffrey C. Vaughan, Joslyn, Joslyn & Vaughan, Charleston, for movant-appellant.
    Weber Gilmore, Gilmore & Gilmore, Sike-ston, for respondent.
   PER CURIAM.

Appellant LeRoy Johnson filed, in the trial court, a document entitled “Motion for Citation for Contempt and Motion to Modify Decree of Dissolution.” At the conclusion of the hearing the trial court denied the first motion and granted movant partial relief on his second motion. The latter sought changes in the child custody and visitation provisions of the original decree.

On this appeal movant presents two “points relied on,” neither of which complies with Rule 84.04(d), V.A.M.R., which requires that points relied on “state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous”.

Because the proceeding affects the interests of children, this court gratuitously has perused the transcript and the briefs.

This court determines that the following circumstances exist and are disposi-tive of this appeal: The judgment of the trial court, reviewable under Rule 73.01, V.A.M.R., is supported by substantial evidence and is not against the weight of the evidence, no error of law appears, and an opinion would have no precedential value.

In compliance with Rule 84.16, V.A.M.R., the judgment is affirmed.

All concur.