author: WASSERSTROM, Judge.

text:
    Julian R. GREEN, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29608.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Richard C. Arndt, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., S. Dana Stiebel, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Defendant was convicted of first degree robbery, and that conviction was affirmed by this court in State v. Green, 534 S.W.2d 600 (Mo.App.1976). Defendant then filed a motion to set aside the conviction under Rule 27.26, which was overruled by the trial court. That ruling is the subject of the present appeal.

Defendant presents two points: (1) that his trial counsel gave him ineffective assistance, in that his counsel failed to impeach one of the State’s witnesses by cross-examining that witness with respect to a prior statement which was inconsistent with his trial testimony in one minor respect; and (2) that the prosecutor was guilty of misconduct in failing to point out to defense counsel the testimonial inconsistency to which reference has just been made.

Our cases are replete with holdings that the court should not review or reassess by ■hindsight the judgment of trial counsel on questions of strategy, trial tactics or trial decisions, Hudson v. State, 524 S.W.2d 62 (Mo.App.1975); and that mere errors, omissions or mistakes do not constitute ineffective representation of counsel, Lewis v. State, 513 S.W.2d 772 (Mo.App.1974). Specifically applicable to the present case, it has been held that failure by defense counsel to impeach a State witness by a prior contradictory statement constitutes only a choice of trial technique which was “well within the broad latitude given in conducting a defense.” Haynes v. State, 534 S.W.2d 552, 556 (Mo.App.1976); Jackson v. State, 540 S.W.2d 616 (Mo.App.1976); see also State v. Turner, 353 S.W.2d 602, 605 (Mo.1962).

Nor is there any merit in defendant’s complaint of alleged prosecutorial misconduct. A prosecutor, of course, may not knowingly suppress material evidence favorable to the accused. Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Lee v. State, 573 S.W.2d 131 (1978). But here, the prior contradictory statement was made available by the prosecutor to defense counsel, and defendant does not even contend to the contrary. Rather, he contends that the prosecutor must go even further and instruct defense counsel as to the significance and potential usefulness of each piece of evidence in the prosecutor’s file. Defendant has cited no case suggesting the existence of such a duty, and we know of none.

Any further discussion of the facts and law in this case would have no precedential value, the judgment of the trial court is based on findings of fact which are not clearly erroneous, and the judgment is therefore affirmed under Rule 84.16(b).

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Carlos K. HOLLAND, Appellant.
    No. KCD 29615.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.

      Clifford A. Cohen, Public Defender, L. D. Mayo, Jr., Asst. Public Defender, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Philip R. Baker, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge, and PRITCHARD, J.
   PER CURIAM.

On February 2, 1977, appellant entered pleas of guilty to two charges of robbery in the first degree. On March 30, 1977, he was sentenced to seven years imprisonment in the Department of Corrections on each charge, to be serve concurrently. On April 7, 1977, he filed a motion under Rule 27.25 to withdraw his pleas upon the grounds that at the time of the alleged criminal conduct, he was, as a result of mental disease, incapable of conforming his conduct to the requirements of law, which would be established by psychiatric evidence; and that he would further establish that at the time of the guilty pleas, due to mental disease, he lacked capacity to understand the proceedings against him and was mentally incapable of assisting in his own defense. Appellant also moved for an eviden-tiary hearing on his motion to withdraw his pleas of guilty “and offer of proof.” Attached to the motion was a copy of the psychiatric report of Dr. George A. Colom.

The trial court denied appellant’s motion without an evidentiary hearing, and with no findings of facts and conclusions of law.

At the taking of appellant’s pleas of guilty, the trial court made extensive and very proper inquiry into facts surrounding appellant’s decision to change his pleas from not guilty to guilty. There were, however, interjected into that hearing certain matters bearing upon appellant’s claim of inability to conform his conduct to the requirements of the law at the time of the alleged offenses. The court inquired whether appellant had any mental or emotional problems, and he answered that he was being treated at Menorah Medical Center for depression, and that he was in the day care program on the psychiatric ward, and that he reported to the ward daily to receive medication to help the pressure on his mind, but that he had not taken his pills on the day of the hearing. At one point appellant testified that although he had no complaints about how his counsel had handled the case, he thought “somebody needs to be looking at my background of my hospital record too”, and “Q. Well, are you saying that this should be checked out in considering the sentence? A. Yes, sir. Yes, sir. Q. Are you claiming that you have a defense to it because of your — A. Yes, sir. Q. — mental condition? A. Yes, sir. I was under a lot of pressure.” Upon further explanation of the defense of mental disease or defect, appellant acknowledged that he was not saying that he should not be found guilty because of his mental condition. Counsel for appellant stated that he would file a motion for mental examination if he had thought there was any possibility that appellant had a mental defense, “but that isn’t here.” Appellant then accepted that statement of counsel. At the time of sentencing, appellant again brought up his psychiatric complaint, and stated there was no other reason that sentence should not be imposed.

Although not evidence, the report of Dr. Colom, attached to the motion, gives appellant’s medical history, and concludes, “It is my opinion that Carlos Holland understands right from wrong but when in his psychotic state he does not appreciate the nature, quality or wrongfulness of his conduct. Also he is incapable of conforming his conduct to the requirements of the law. I feel this mechanism was in effect at the time his offense October 16, 1976. * *

The mere denial of appellant’s motion, without findings of fact and conclusions of law, is not a compliance with Rule 27.26(i), Keith v. State, 511 S.W.2d 896 (Mo.App.1974); Baker v. State, 532 S.W.2d 897, 898[2] (Mo.App.1976), and does not present anything for meaningful review. The motion, its attachments, and the files and record (of the guilty pleas) do not conclusively show that appellant is entitled to no relief.

The judgment is reversed and the case is remanded with directions to grant appellant an evidentiary hearing upon his motion to withdraw his guilty pleas, for the appointment of counsel if appellant is indigent, and for findings of fact and conclusions of law after hearing.


text:
    Warren Franklin CHENOWETH, Appellant, v. Doris Lynn CHENOWETH, Respondent.
    No. KCD 29616.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.

      Granville E. Collins, Pulton, for appellant.
    Thomas M. Dunlap, Whitlow, Riley, Mar-iea & Dunlap, Fulton, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Following a decree dissolving the marriage between Warren Franklin Chenoweth and Doris Lynn Chenoweth, Warren filed a motion to reopen the case in order to make division of the marital property. The trial court declined to do so, from which ruling Warren appeals. We reverse.

In the original dissolution proceeding filed in the circuit court of Callaway County, Missouri, Warren’s petition prayed a dissolution of the marriage and “such other orders as may be just and proper.” There was no request for a division of property, and no property was specified in the petition as being owned by the parties. Service was had upon Doris in Florida as a nonresident under Rule 54.14. A decree of dissolution was entered on May 5, 1976, and the decree specifically recited “that the Court lacks jurisdiction to enter orders other than dissolution.”

Thereafter on August 19, 1976, Doris filed a new and independent suit in the circuit court of Callaway County for the partition of real estate and personal property which had been acquired by the parties during the period of the marriage and which continued to be owned by them. In reaction to that new suit, Warren, on March 18, 1977, filed a motion in the dissolution proceeding to reopen the case for the purpose of dividing the marital property and “to make a final judgment.” Warren’s motion adopted by reference Doris’ petition for partition, to the extent of the property descriptions contained therein. A hearing was held on Warren’s motion on April 4, 1977, at which both parties appeared by counsel. On June 13, 1977, the trial court overruled Warren’s motion and filed a memorandum opinion which held in significant parts as follows:

“Under Rule 54.14, personal service was effected on the non-resident respondent in Florida. Absent the necessary allegations for personal jurisdiction, personal service outside the state would confer only in rem jurisdiction of the res or status (the marriage only) under Rule 54.12.
* ⅜ * * * *
“It appears, therefore, that the court is without jurisdiction at this time to divide the property of the parties. The petitioner’s motion to make the judgment final should be overruled, because the judgment is final based upon lack of personal jurisdiction over respondent and lack of an issue as to division of property in the pleadings.”

I.

The reason given by the trial court for declining to make a division of marital property at the time of the dissolution decree on May 5, 1976, was “lack of jurisdiction,” and this reason was repeated in the court’s order refusing to reopen the decree on June 13,1977. This is the basic justification offered by Doris in this court in support of the trial court’s 1977 order here for review, and she argues in various overlapping forms that the trial court had no personal jurisdiction over her and therefore had no power to enter any judgment other than purely a dissolution of the marriage status. Furthermore, Warren in this court takes as true the assumption that the trial court had no authority to do anything beyond dissolving the marriage, unless it can be shown that the court had jurisdiction over Doris’ person; and his argument is premised upon the proposition that the circuit court of Callaway County did acquire personal jurisdiction on the principle of waiver arising from the fact that Doris filed the partition suit in Callaway County and that she appeared by counsel at the hearing of Warren’s motion on April 4, 1977, without filing any motion or responsive pleading attacking personal jurisdiction of the court over her.

In truth, personal jurisdiction over an absent spouse is not necessary to confer jurisdiction for the purpose of dividing marital property. ' That legal proposition has been recently decided by this court in In re Marriage of Breen, 560 S.W.2d 358 (Mo.App.1977). In Breen, the trial court ordered dissolution of a marriage but considered that in the absence of personal service on the defendant wife, it was without jurisdiction to divide the marital property. On appeal, this court reversed. The Breen opinion pointed out that the authority to adjudicate property rights between the spouses incident to a dissolution of their marriage was granted to Missouri courts for the first time by Section 452.330, RSMo. Supp.1973. The opinion goes on:

“The adjudication of that new remedy on conventional principles depends upon the situs and nature of the property to be divided. * * * And this power of a state to adjudicate interests in land within the territory may be validly exercised even though [contrary to the determination by the circuit court] the person who claims these interests is not personally before the court. Restatement of Conflict of Laws 2d Sec. 59. That is because for a valid judgment in rem traditional due process requires only that the sovereignty which adjudicates have physical power over the res directed against and that the law of the sovereignty provide a mode of service to notify persons whose interests are to be affected by the proceedings and to allow opportunity to be heard. Leflar, American Conflicts Law Sec. 20 (3d edition 1977).”
* * * * * *
“On these principles the circuit court of Clay County had competent judicial jurisdiction to affect the title of the absent wife to the marital property on the petition for dissolution by the husband once that res was brought within the control of the court by lawful process. Rule 54.-12. * * * This procedure, according to conventional due process, allows rendition of a valid judgment in rem as to the title of real estate, marital status, or any other thing authorized by law [Rule 54.-12] to be brought before the court by that method.”

The Breen opinion then proceeds to consider the impact of Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) and summarized the effect as follows:

“These announced principles make it altogether plain that the seizure of property alone will not support a valid judgment in rem. However, fallible the procedures of Rules 54.12 and 54.17 have now otherwise become, when they are used — as has this plaintiff — not merely to compel the presence of the defendant or other purpose extraneous to the litigation but to adjudicate rights in the very property seized, the minimum contacts between the State, the parties and the subject of the litigation are present and afford an acceptable basis for the exercise by the sovereignty of judicial jurisdiction over the subject matter.”

This court then proceeded to hold that the circuit court had jurisdiction and erred in refusing to divide the marital real property, which had been specifically described in the petition for dissolution. The court held that there was no error, however, in refusing to make disposition of personal property which had not been described in the petition nor been made the subject of a prayer for division. In the latter respect, the Breen opinion held:

“A valid judgment in rem does not follow merely because the forum — by reasonable contacts with the property in dispute, the litigants, and the cause of action — has the right to adjudicate, but due process requires also that the judicial determination be preceded by notice to the absent defendant and opportunity to be heard.”

Here all of the real and personal property sought to be divided is situated in Callaway County, Missouri, Doris claims an interest in these items of property, and this property within the jurisdiction of the circuit court was the very subject of the litigation before it. Therefore, the trial court had full jurisdiction in rem in accordance with the requirements described in Breen, except only that at the time of the original dissolution decree no mention of the property had been made in the petition nor had any other notice of such an issue been given to Doris. These missing elements were, however, clearly supplied by Warren’s motion filed March 18, 1977, of which Doris plainly had notice by reason of her appearance to oppose the motion at the hearing held April 4, 1977.

A few words are in order concerning the fact that this major legal issue in this case is being decided here on a basis which was never argued in .the trial court and without having been raised by Warren’s brief in this court. The failure to raise the issue (as to the lack of necessity for jurisdiction over the person of Doris in the traditional sense in order to proceed with a division of the marital property) is quite understandable in view of this new legal principle having been decided in Breen for the first time subsequent to the ruling from which this appeal was taken and in fact only two days before appellant filed his brief in this court. In any event, we have the power to and will consider this point as plain error under Rule 84.13(c). Such consideration is necessary to give effect to the clear legislative intent of the Dissolution of Marriage Act, Sec. 452.-330. Furthermore, such treatment is necessary to prevent a possible serious miscarriage of justice. If Doris were permitted to proceed with division of the former marital property by means of partition, she would obtain a full one-half as a tenant-in-common. On the other hand, a division pursuant to the provisions of Section 452.330 might give her substantially less than one-half. Of course on a full hearing, Doris may be able to justify a claim to one-half of the property; but if so, that should be done on the basis of a full showing by evidence relating to the factors listed in Sec. 452.330, and not pursuant to a rigid mathematical division based on the form in which title happens to be held.

II.

The second reason given by the trial court for its June 13, 1977 ruling was the alleged “lack of an issue as to division of property in the pleadings.” That ruling was in error because Warren’s motion of March 18, 1977, was a pleading and served effectively to enlarge the grounds and prayer for relief. Beyond any question, that expansion of the issues has reached the attention of Doris and she will have full opportunity to be heard on the question of property division.

III.

Doris argues strenuously that his court has no jurisdiction because Warren failed to timely appeal from any final judgment. She insists on treating the dissolution decree of May 5,1976, as the only judgment in this case from which an appeal could be taken, and she correctly points out that the time for any appeal from that judgment has long , since passed. She further contends that Warren’s motion to reopen is simply an after trial motion, similar to a motion for new trial, from which no appeal lies.

Doris’ basic analysis is incorrect. The motion filed March 18, 1977, for a division of marital property was a special statutory proceeding specifically contemplated by Sec. 452.330. Under that section, there may be “a proceeding for disposition of property following dissolution of the marriage by a court which, lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property.” This case falls within the quoted category for the reason that the trial court did not have jurisdiction to dispose of the marital property at the time of the original dissolution decree, because the petition did not contain a description of property to be affected or give notice to Doris of that issue. It did not obtain such jurisdiction until the filing of Warren’s motion to reopen and Doris’ appearance in opposition thereto on April 4, 1977.

The denial by the trial court of the March 18, 1977 motion was an appealable judgment similar to an order dismissing a petition for lack of jurisdiction. See Dillen v. Remley, 327 S.W.2d 931 (Mo.App.1959). Furthermore, contrary to a contention made by Doris, the order of June 13, 1977, if allowed to stand would dispose of all issues in the case. It is true, as Doris says, that the order of June 13, 1977, did not make disposition of the property. But that is not necessary to finality. The order did not purport to be only an interim step with further proceedings in the case still in contemplation; the trial court by its order of June 13, 1977, beyond question was making what it considered to be a final judgment which would mark a complete terminus to the case, based on its determination that it had no power to dispose of the marital property.

IY.

In addition to his brief on appeal, Warren has filed a separate motion to remand; and in addition to her brief on appeal, Doris has filed a motion to dismiss Warren’s appeal. These motions were ordered taken with the case. All issues raised by those motions have already been disposed of by this opinion. Both motions are accordingly overruled.

The order overruling Warren’s motion to reopen and make final judgment is reversed, and this cause is remanded for further proceedings.

All concur.


text:
    Perry COLLINS, Appellant, v. INDUSTRIAL BEARING AND TRANSMISSION COMPANY, Respondent.
    No. KCD 29649.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.

      Arthur J. Kase, Joseph A. Cambiano, Ru-bins, Kase & Rubins, Inc., Kansas City, for appellant.
    Kénneth 0. Smith, Douglas H. Delsemme, Knipmeyer, McCann, Pish & Smith, Kansas City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

The issue here relates to the vexing problem of preemption of state court jurisdiction by the National Labor Relations Act, 29 U.S.C.A. Sections 157 and 158 (now part of the Labor Management Relations Act, 1947). Plaintiff sought by his petition in the circuit court to recover damages because of defendant’s alleged violation of the Missouri Service Letter Statute, Section 290.140, RSMo 1969. Defendant moved to dismiss on the ground of federal preemption, and the trial court sustained that motion. We reverse.

The facts according to plaintiff’s petition are as follows. Plaintiff was an employee of the defendant corporation from April 29, 1968, until October 11, 1974. Toward the end of that period, a labor union commenced an organizational drive of defendant’s employees, and plaintiff became active on behalf of the union. Defendant discharged plaintiff on October 11, 1974, and on December 12, 1974, he made a written request for a service letter. Defendant furnished a letter in which it stated that plaintiff’s employment was terminated “because, in the opinion of management, you threatened a fellow employee with the loss of his job if he refused to vote for the union in a representation election pending at the time, thereby interfering with the business of the company.” Plaintiff’s petition alleges that the service letter does not truly state the cause for the discharge and that “the true reason for plaintiff’s discharge was that the defendant learned that the plaintiff was involved in the organizational drive of the union and because as a senior warehouse employee he was in a good position to influence employee’s [sic] opinions towards the union in the pre-election period.” The petition prayed actual damages in the sum of $5,000 and $50,000 as punitive damages.

To this petition, defendant filed a motion to dismiss or in the alternative to stay proceedings. It alleged that on October 15, 1974, Teamsters Local Union No. 541 had filed a charge before the National Labor Relations Board alleging that defendant had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by discharging plaintiff for alleged misconduct, when in fact he was engaged in union activities and that the discharge was for the purpose of discouraging membership in the union. The motion further alleged that this charge under Case No. 17-CA-6255, had been tried before an administrative law judge, who had ordered plaintiff’s reinstatement and the payment to him of compensation for losses incurred by reason of the discharge; but that defendant had filed exceptions to said decision which were still pending before the National Labor Relations Board. Defendant further alleged in its motion that the subject matter of the state court law suit was the same as that presented in the Labor Board proceeding, that the Labor Board had exclusive jurisdiction, or that at least the state court should not grant any relief to plaintiff until such time as he had exhausted his remedies before the administrative body. Accordingly, defendant moved the court to dismiss this action for want of jurisdiction or in the alternative to stay the court proceedings until the case before the Labor Board had been completed.

The trial court granted the first branch of the alternative relief asked by defendant and sustained the motion to dismiss pursuant to a finding, as a matter of law, that the court “has no jurisdiction over the subject matter of the case and that exclusive jurisdiction has been preempted federally and rests with the National Labor Relations Board and with appeals to the Federal Courts therefrom.” Plaintiff appeals, charging that ruling as error.

The doctrine of federal preemption in the field of labor law has had a long and troubled history. The conflicts in this area have spawned many United States Supreme Court opinions, the most recent of which is Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978). The Sears, Roebuck opinion traces in considerable detail the development of the preemption doctrine over many decades and undertakes to summarize the law in this area. As stated in that opinion, the basic general guideline for deciphering the unexpressed intention of Congress regarding the permissible scope of state regulation of activity touching upon labor-management relations was set forth in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959), where the court stated: “When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by Sec. 7 of the National Labor Relations Act, or constitute an unfair labor practice under Sec. 8, due regard for the federal enactment requires that state jurisdiction must yield.” In formulating that rule, the Garmon opinion explains that “[i]n determining the extent to which state regulation must yield to subordinating federal authority, we have been concerned with delimiting areas of potential conflict; potential conflict of rules of law, of remedy, and of administration.”

Plaintiff argues that this case does not come within the foregoing rule, because the activity sought to be regulated by Sec. 290.-140 is the issuance of a service letter, which is a matter distinct from the act of terminating employment and that this service letter statute “does not regulate labor disputes or any other practices protected or prohibited by the National Labor Relations Act.” Defendant counters with the argument that the basic issue before both the Labor Board and the Circuit Court were the same — namely, what was the real reason for plaintiff’s discharge? It argues that plaintiff cannot recover in the state court action except by showing that the true reason for his discharge was his union activity, and that this constituted the very same issue which the Labor Board was called upon to decide. Defendant concludes that this presents just exactly the type of potential conflict which the preemption doctrine is designed to prevent.

That debate is of only theoretical interest as far as the disposition of this case is concerned; for even assuming defendant’s above argument to be correct and that this case falls within the general scope of the preemption concept, nevertheless the situation here is then immediately released from preemption by reason of falling within a well-recognized exception to the preemption general rule. Garmon clearly outlines, and Sears, Roebuck carries forward, not only the general rule for preemption, but also certain broad exceptions to that general rule. The exception of direct interest for present purposes was set forth in Garmon as follows:

“However, due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act. * * * [or] where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.”

See also the restatement of this same concept in Farmer v. United Brotherhood of Carpenters and Joiners of America, Local 25, 430 U.S. 290, 97 S.Ct. 1056, l.c. 1061, 51 L.Ed.2d 338 (1977).

The application by the Supreme Court of the foregoing exception most closely akin to the facts of the present case was Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). Linn, an assistant manager of Pinkerton’s National Detective Agency, filed a common law action against a union, two of its officers and a Pinkerton employee, alleging that the defendants had circulated a defamatory statement about him in violation of state law. These statements were made as part of literature being distributed in the course of a labor dispute and might have been found by the Labor Board to be unfair labor practice by the union in violation of Sec. 8 of the N.L. R.A. Nevertheless, the Supreme Court refused to find that the common law action had been preempted. In explaining that ruling, the Supreme Court in Farmer, supra, expounded on Linn as follows:

“But a number of factors influenced the Court to depart from the Garmon rule. First, the Court noted that the underlying conduct — the intentional circulation of defamatory material known to be false — was not protected under the Act, 383 U.S., at 61, 86 S.Ct., at 662, and there was thus no risk that permitting the state cause of action to proceed would result in state regulation of conduct that Congress intended to protect. Second, the Court recognized that there was ‘ “ ‘an overriding state interest’ ” ’ in protecting residents from malicious libels, and that this state interest was ‘ “ ‘deeply rooted in local feeling and responsibility.’ ” ’ Id., at 61, 62, 86 S.Ct., at 663. Third, the Court reasoned that there was little risk that the state cause of action would interfere with the effective administration of national labor policy. The Board’s Sec. 8 unfair labor practice proceeding would focus only on whether the statements were misleading or coercive; whether the statements also were defamatory would be of no relevance to the Board’s performance of its functions. Id., at 63, 86 S.Ct., at 663. Moreover, the Board would lack authority to provide the defamed individual with damages or other relief. Ibid. Conversely, the state law action would be unconcerned with whether the statements were coercive or misleading in the labor context, and in any event the court would have power to award Linn relief only if the statements were defamatory. Taken together, these factors justified an exception to the preemption rule.”

As in Linn, so also here, the underlying conduct by the employer — the giving of a false statement as to the reason for plaintiff’s discharge — was not protected under the federal act. Also, as in Linn, there is “an overriding state interest” in requiring Missouri employers to give truthful service letters and this state interest is “ ‘deeply rooted in local feeling and responsibility.’ ” In this respect the Missouri Supreme Court in State ex rel. Terminal R.R. Ass’n of St. Louis v. Hughes, 350 Mo. 869, 169 S.W.2d 328, 330 (1943) stated that the historical reasons for the enactment of the service letter statute was “the prevention of injustice and oppression, which had become so great as to be a public evil, to large numbers of laboring people.” Still further, as in Linn, there is little risk that the state cause of action will interfere with the effective administration of national labor policy. The Board’s unfair labor practice proceeding focused only on whether plaintiff’s discharge was coercive in discouraging concerted labor activity; whether the reason for discharge given in the service letter was true or false would be of no relevancy to the Board’s performance of its functions. Moreover, the Board would lack authority to provide plaintiff with damages or other relief with respect to the false service letter. Conversely, Missouri law would be unconcerned with whether the discharge was coercive in the labor context, and in any event the Missouri court would have power to award plaintiff relief only if the reasons for discharge stated in the service letter were false. Taken together, all of these factors, just as in Linn, justify an exception to the preemption rule.

There is still another important factor here yet to be considered. The discussion so far has been limited to the situation as it existed before the trial court. Since the ruling of the trial court and pending this appeal, a very significant change has occurred. During oral argument in this court, both parties agreed that the Labor Board proceeding, which was still in progress at the time this case was heard by the circuit court, has now fully terminated. The appeal from the administrative law judge was heard by a three-member panel of the Board and was affirmed on July 13, 1977. Industrial Bearing & Transmission Co., Inc. and Teamsters Local Union No. 541, 230 N.L.R.B. No. 141. That company, the defendant here, then filed a petition for review before the United States Court of Appeals for the Eighth Circuit and the Labor Board filed cross-application for enforcement of its order. On February 22, 1978, that court affirmed the Board decision and handed down its opinion granting enforcement of the Board’s order. Industrial Bearing & Transmission Co., Inc. v. National Labor Relations Board, 570 F.2d 839 (8th Cir. 1978). That decision by the federal Court of Appeals is entitled to judicial notice by this court. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, 894[4] (1943); State v. Public Service Commission, 365 Mo. 1032, 291 S.W.2d 95 (banc 1956); George v. Time, Inc., 259 App.Div. 324, 19 N.Y.S.2d 385 (1940); Rodriguez v. State, 78 Misc.2d 174, 355 N.Y.S.2d 912 (1974); McRae v. Dodt, 50 Ariz. 336, 72 P.2d 444 (1937).

Furthermore, the determination in the Labor Board proceedings, to which plaintiff was in privity, is now binding upon the defendant under the doctrine of collateral estoppel. United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); Eazor Express, Inc. v. General Teamsters Local 326, 388 F.Supp. 1264 (D.C.Del.1975); Bowen v. United States, 570 F.2d 1311 (7th Cir. 1978). Since the Labor Board has found and the federal Court of Appeals has affirmed that plaintiff was discharged because of his union activity, that issue can no longer be contested by defendant in the present case and there no longer exists any possibility of conflicting rulings as between the Labor Board and the Missouri circuit court. In effect, defendant has now received the full benefit of what would have been accomplished by a stay of proceedings in the circuit court pending completion of the Labor Board matter, which was a form of alternative relief which defendant originally requested in the trial court.

We have not overlooked the requirements made in Linn, as a condition for permitting the state court action there to proceed free from the doctrine of preemption. In Linn, the Supreme Court limited the availability of a state libel action “to those instances in which the complainant can show that the defamatory statements were circulated with malice and caused him damage,” thereby adopting by analogy the standard enunciated in New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). We have concluded, however, that those requirements were peculiar to the libel action involved in Linn and have no application to the present case which is founded on a distinctly different type of liability created by a state statute. As the' court pointed out in Linn, the alleged libel occurred as part of literature distributed during an organizing campaign and the extent of the union’s right in connection with this literature raised a serious question of free speech, which would suffer unconstitutional abridgement unless the state court could find that the false statements were distributed with knowledge of their falsity or with reckless disregard of whether they were true or false. Furthermore, the court in Linn called specific attention to the fact that “the law in many States presumes damages from the publication of certain statements characterized as actionable per se ” and that there exists a “propensity of juries to award excessive damages for defamation.” Those special characteristics of libel have not been shown to exist in a case to recover under the Missouri service letter statute, and the special conditions required in Linn therefore need not be duplicated in the present situation. It should be pointed out however that here, as in Linn, protection against harassment is afforded by the consideration that “[i]f the amount of damages awarded is excessive, it is the duty of the trial judge to require a remittitur or a new trial.”

The judgment is reversed and the case remanded for further proceedings.

All concur.


author: PRITCHARD, Judge.

text:
    James L. HAYDEN, Appellant, v. FIRST COMMUNITY STATE BANK OF SAVANNAH, Missouri, a corporation, Respondent.
    No. KCD 29693.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.

      P. Wayne Kuhlman, Liberty, for appellant.
    Richard A. Heider and Christi M. Insco, St. Joseph, Morton, Reed & Counts, St. Joseph, for respondent.
   PRITCHARD, Judge.

Appellant, a former president of respondent, sought judgments upon his four count petition, the first three counts being dismissed for failure to state a cause of action, and the fourth count being dismissed upon appellant’s acknowledgment that the statute of limitations had run upon it. The inquiry is therefore whether Counts I, II and III of the petition state a claim for relief upon which appellant may proceed with his proof.

The litigation upon which Count I is based, and upon which appellant alleges he is entitled to reimbursement for attorney’s fees and expenses paid by him and incurred on behalf of respondent, was in the case of First Community State Bank v. Pemberton, 493 S.W.2d 692 (Mo.App.1973). There the issue was whether the present appellant, Hayden, as president of respondent bank, had inherent authority to institute proceedings to-enjoin the Commissioner of Finance, who had taken possession of the bank, from continuing in possession of the bank’s business and property, notwithstanding that Hayden’s action had not been authorized by the bank’s board of directors. This court noted, page 694[1], the apparent unanimity among the courts, that a bank’s president does have the inherent right to control the bank’s litigation, absent some contrary provision by statute or bylaw or contrary action by the board of directors, there being no prohibitions of those kinds in that case. A writ of prohibition, against the Commissioner ordering him to refrain from liquidation until circuit court hearing, and a writ of mandamus, ordering the circuit court to hold a hearing as to the propriety of the bank seizure, were ordered made permanent upon the ground that the filing of the proceedings was authorized under Hayden’s exercise of inherent powers as president, particularly in view of the peculiar (emergency) circumstances of the case.

Count I alleged, as here paraphrased: At all times mentioned appellant was president of respondent. Beginning on December 29, 1971, he found it necessary to employ counsel for the purposes of litigation regarding the closing of the bank by the Commissioner of Finance. He incurred attorney fees and expenses and did pursue and file litigation successfully on behalf of respondent. Respondent’s stockholders, at a regular meeting on January 31, 1972, unanimously adopted a resolution authorizing appellant to employ legal counsel and take the necessary legal action that he deemed proper under the facts and circumstances; and the board of directors thereafter, on July 13, 1972, formally approved and allowed and ordered paid to counsel $18,514.66, which had been incurred in the bank litigation, but payment was not made; that respondent has failed and refused to pay the attorneys employed by appellant on behalf of respondent, causing him to be required to pay the same, which he has done, in the total sum of $18,514.66. Appellant incurred a further fee for legal services on behalf of respondent to attorney Mcllroy, Sr., of Bowling Green, Missouri, in the amount of $250.00. Demand was made on May 13, 1974, for payment of said expenses, but respondent refused and still refuses to make payment.

In resisting appellant’s claim to reimbursement of his paid attorney fees, and those incurred by him, respondent relies upon the fact that the Commissioner of Finance had taken possession of its business and property under § 361.300, et seq., RSMo 1969, first arguing that the posting of the notice of the Commissioner of Finance acts as a bar to any proceedings against the bank under § 361.300(3). That section provides: “The posting of * * * a notice by the commissioner that he has taken possession of any such corporation shall be sufficient to place all its assets and property, of whatever nature, in the possession of the commissioner, and shall operate as a bar to any proceedings whatever whether in law or in equity, against any incorporated bank or trust company, or its assets, and if any such action is begun, then all such proceedings shall be summarily dismissed and for naught held, upon the certificate of the commissioner being filed in such cause, showing that he has taken possession of the assets of such bank or trust company, * * Taken in connection with this statutory provision is § 361.430 2., “No corporation, association or individual having notice or knowledge that the commissioner has taken possession of such corporation, shall have a lien or charge against any of the assets of such corporation for any payment, advance or clearance thereafter made, or liability thereafter incurred.” These statutes clearly have to do only with transactions with a banking or trust company organization in its usual course of business after the commissioner has taken charge — claimants must thereafter deal with the commissioner in his official status, and if not so dealt, then any action shall be subject to summary dismissal, and there shall be no lien, charge or liability against the assets of the corporation, unless established by proceedings against the commissioner, and not against the corporation alone. These statutory provisions cannot have application to proceedings to test the legality of the taking of possession by the commissioner of the corporation, which proceedings by way of an injunction suit is specifically authorized by § 361.360. And, as noted, appellant, as president of the bank, was held to have the inherent power to institute such proceedings in the Pember-ton case, supra. It could not be incumbent upon the commissioner only that he have the sole authority to employ counsel to prosecute an injunction suit under § 361.360 —such a requirement would thwart that relief against an improper taking of possession of the bank. Appellant thus was not required to seek approval of the commissioner or the circuit court to employ counsel to prosecute the claim.

Inasmuch as it has been held that appellant, as president of respondent, possessed the inherent power to institute the underlying litigation on respondent’s behalf, it can only follow that he had a concomitant power to employ counsel therefor. That litigation was for the purpose of preserving and protecting the banking corporation, and to prevent its liquidation. Clearly, it was for the benefit of the corporation, and the pleading of Count I, although not precise as to dates, and any injunction decree or settlement of the case with the Commissioner of Finance, is that it was successful. It is also pleaded that respondent’s shareholders adopted a resolution authorizing appellant to employ legal counsel on January 31, 1972, and that its board of directors approved and ordered paid the counsel fees on July 13,1972. These actions amount to a ratification of appellant’s action, and an acceptance of the benefits flowing from the counsel’s services. In Leggett v. Mutual Commerce Casualty Company, 250 S.W.2d 995, 998[3, 4] (Mo.1952), it was said, “The managing officers of a corporation have the power to employ counsel without written authorization from the board of directors and if the corporation accepts the services is liable for their reasonable value. (Citing cases.)” See also Elblum Holding Corporation v. Mints, 120 N.J.L. 604, 1 A.2d 204, 207[6-9] (1938). To permit respondent to have the benefits of counsel’s services without reimbursement to appellant for his payment thereof would permit it to be unjustly enriched. Rest., Law of Restitution, § 1 (1973). The court erred in dismissing Count I of appellant’s petition, except as to the allegation that he had incurred (but not paid) the $250.00 fee to attorney Mcllroy.

In the above connection, Commonwealth Finance Corp. v. Missouri Motor Bus Co., 251 S.W. 756 (Mo.App.1923), is to be distinguished, in that the case involved an unsuccessful attempt to resist the appointment of a receiver. That case, and others, hold that it is a matter of discretion of the trial court in allowing counsel fees to an unsuccessful litigant who contests the appointment of a receiver [whose status is the same as the Commissioner of Finance in administering the assets of a bank in failing condition, Savings Trust Co. of St. Louis v. Skain, 345 Mo. 46, 131 S.W.2d 566, 570[4] (banc 1939)]. See also Anno. 89 A.L.R. 1531, and later case service thereon. Here, as pleaded, there was a successful resistance to the action of the Commissioner of Finance in taking possession of respondent bank.

Count II of appellant’s petition, realleging paragraphs 1 and 2 of Count I that he was president of respondent, pleaded further that beginning on December 29, 1971, he, as president, found it necessary to employ counsel on respondent’s behalf for the purposes of litigation regarding the closing of the bank by the Commissioner of Finance, also alleged that prior to the time of closing of the bank, December 29, 1971, he worked part-time and drew a salary of $6,500 per annum. That thereafter he worked full time and more for appellant and incurred personal mileage expenses in connection therewith. He prayed for $10,-835.35 judgment for reasonable compensation, and $2,040.72 expenses, and costs. There is no allegation that these services and expenses were performed and incurred at the special instance and request of respondent. But in an action for quantum meruit, that allegation is not necessary. Here, as noted above, appellant instigated the suit in his capacity as president pursuant to his inherent power. Pemberton, supra. That position dispenses with the necessity of a request by respondent (which was then in the hands of the Commissioner of Finance) to perform the litigation services. The fair intendment of the pleading is that appellant, being authorized to institute the suit, performed services and incurred expenses beneficial to respondent, which were at least inferentially (being in connection with the injunction suit) accepted by it, although the latter fact is not specifically pleaded. The rule is well stated in Upshaw v. Latham, 486 S.W.2d 656, 658 (Mo.App.1972), “Even though there has been no request, where valuable services are knowingly accepted by the party benefiting therefrom under circumstances which would reasonably justify the belief that the party furnishing them expected payments for .the reasonable value, the obligation to pay will be inferred by law. Bennett v. Adams, Mo.App., 362 S.W.2d 277, and cases cited therein.” Appellant was foreclosed from receiving his regular, part-time compensation as respondent’s president because of the take-over by the Commissioner of Finance. He was without compensation for his services in seeking to enjoin the takeover by the commissioner. As president, however, he was authorized to institute the injunction proceedings. According to his pleadings, that action was successful, a benefit to the bank in continuing its business. It would be inequitable to require appellant to perform those services gratuitously, and to pay from his own pocket whatever mileage expenses were expended by him. In accordance with the Latham case, supra, under these pleaded circumstances, the law will imply a promise by respondent to pay the reasonable value of the services performed, and to reimburse appellant for his actual expenses. Appellant is entitled to go forward with his proof, Count II being erroneously dismissed by the trial court.

Count III of appellant’s petition sounds in malicious prosecution. It is alleged that “on or about November 16,1972, Defendant [respondent here] filed a Petition against Plaintiff alleging fraud in a transaction wherein Plaintiff, as the then President of Defendant bank, assigned without recourse a Promissory Note of one Caryl and Ruby Kent to the Omaha National Bank, * * * [which Petition] alleged that Plaintiff perpetrated fraud and misrepresentation against Defendant.” The copy of the petition filed in the Kent matter is attached to appellant’s present petition. By its last paragraph, it alleges that the action was brought in the name of the bank pursuant to § 361.500, RSMo 1969, as amended; and “further that this action is brought pursuant to a resolution of the Board of Directors of the First Community State Bank of Savannah adopted at a duly called meeting of said Board of Directors on November 8, 1972.” § 361.500 empowers the Commissioner to prosecute and defend any and all actions and proceedings in the name of the delinquent corporation. Appellant is bound by the attachment to his Count III pleading, which shows on its face that the action was instituted by the Commissioner while he had possession of the bank. Respondent’s Board of Directors then had no power or capacity to sue individually, and thus it cannot be said that the Board instigated the suit (later dismissed) so as to make respondent liable in an action for malicious prosecution. See Wauer v. Bank of Pendleton, 228 Mo.App. 1150, 65 S.W.2d 167, 170 (1933). The trial court did not err in dismissing Count III of the petition.

The judgment dismissing Count III of the petition is affirmed. The judgment dismissing Counts I and II of the petition is reversed, except that portion of Count I alleging the incurrence of $250.00 fee to attorney Mcllroy (which is likewise affirmed), and as to those counts, the case is remanded for trial.

All concur.


author: TURNAGE, Judge.

text:
    STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. FAIRMONT FOODS COMPANY d/b/a U-Totem, Defendant-Appellant.
    No. KCD 29731.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Steven J. Borel, Stubbs & Mann, P. C., Kansas City, for defendant-appellant.
    Bruce A. Ring, Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

The State Highway Commission filed suit against Fairmont Foods to enjoin Fairmont from constructing a drive for direct access between its property and the south side of N.E. 48th Street. The court permanently restrained Fairmont from interfering with any highway structure placed along the south line of 48th Street and further restrained Fairmont from violating the limitation of access imposed on Fairmont’s property bordering the south line of N.E. 48th Street.

On this appeal Fairmont contends the limitation of access is invalid because (1) Fairmont’s predecessor in title was not made a party to an eminent domain action instituted by the State Highway Commission by which access was limited; (2) After commencement of the condemnation proceedings, Fairmont’s predecessor in title received a correction deed which conveyed title to land abutting N.E. 48th Street and thus made him an indispensable party to the eminent domain action; and (3) Fair-mont’s predecessor in title had obtained an easement of necessity by operation of law for access to N.E. 48th Street. Affirmed.

This case was submitted on stipulated facts. On October 1, 1966, Home Savings Association was the owner of a tract of land at the southwest corner of the intersection of N.E. 48th Street, which ran east and west, and Randolph Road, which ran north and south. Widening of both these streets was anticipated, entailing establishment of new right of way lines. These proposed lines would require the taking of 80-foot strips along the two sides of the tract which abutted N.E. 48th Street and Randolph Road.

On October 11, 1966, Home Savings conveyed a portion of this tract to Glen Bolling and wife. The portion conveyed did not abut the two streets as they then existed. Rather, the description of the Bolling tract ran along the proposed new right of way lines of N.E. 48th Street and Randolph Road and contained no mention of access easements to the original or proposed streets. The Bolling tract would have a frontage of 160 feet on the proposed new 48th Street and 190.3 feet on the proposed new Randolph Road. This deed was recorded October 12, 1966.

On October 27, 1966, approximately two weeks after the conveyance to Bolling, the State Highway Commission filed an action in eminent domain to obtain the rights of way to widen N.E. 48th Street and Randolph Road up to the proposed right of way lines as described in the deed from Home Savings to Bolling. Only Home Savings, as owner of the 80-foot strips which abutted the old right of way lines, was made a party to the eminent domain proceedings. In the eminent domain action, the Highway Commission extinguished the right of access from land abutting the south line of N.E. 48th Street for a distance of 625 feet west from the centerline of Interstate Route 435, a distance sufficient to extinguish the right of access from the Bolling tract.

On January 18, 1967, Home Savings gave a correction deed to Bolling which was recorded on January 25, 1967 (three months after commencement of eminent domain proceedings). By the correction deed, Home Savings purportedly conveyed to Bolling the tract bordered by the old right of way lines of 48th Street and Randolph Road as they existed prior to institution of the eminent domain action. However, the deed specifically excepted any property within the right of way of 48th Street and Randolph Road.

By mesne conveyance Fairmont Foods obtained title in 1974 to the Bolling tract. The deed to Fairmont described the tract as bordering 48th Street and Randolph Road as both streets existed after the eminent domain proceedings. After Fairmont obtained title it constructed a U-Totem Store and then sought to construct an entrance from its tract directly onto 48th Street. It was at this point the Highway Commission instituted the instant suit for injunction.

Fairmont first contends it is entitled to direct access to 48th Street because the Highway Commission did not name the Bollings as a party to the eminent domain proceedings and hence, Bolling remained in possession of access rights which were passed on to Fairmont. However, it must be remembered that at the time of the conveyance from Home Savings to Bolling the tract conveyed did not border on 48th Street and therefore no access existed from the Bolling tract to that street. The eminent domain action extended 48th Street up to the boundary of the Bolling tract and concurrently limited the access from the Bolling tract to the new boundary of 48th Street. Since Bolling never acquired a right of access to the original 48th Street, the concurrent limitation of access to a newly constructed street did not constitute a compensable element of damage to Boll-ing. As stated in State v. Clevenger, 291 S.W.2d 57, 62[1, 2] (Mo.1956), “there could be here no taking of an easement of access to the new roadway, because no prior right of access existed; thus, the supposed deprivation of a right of access to the road itself could not constitute a compensable element of damage.”

In Clevenger the court relied on cases from California. In one of the cases cited, Schnider v. State, 38 Cal.2d 439, 241 P.2d 1, 3[1, 2] (1952) the court stated:

Where a property owner has no right to direct access to a highway before it is converted into a freeway abutting upon his property, nothing is taken from him by the failure to give him such a right when the conversion takes place. The allowance of compensation in such a case would amount to a gift rather than payment for the destruction of a right.

Here, the Bolling tract was vested in Bolling prior to the taking of the land sandwiched between the Bolling tract and the original 48th Street, and the concurrent limitation of access to the new 48th Street. Although subsequent to widening, the new street adjoined the Bolling tract, Bolling never lost a right of access because he had never possessed a right of access to 48th Street. The facts in this case are completely analogous to the facts in Schnider and also to those in Clevenger as far as the new road in Clevenger is concerned. It was therefore unnecessary for the Highway Commission to name Bolling as a party defendant in the eminent domain action as to the taking of access to 48th Street because he had no compensable interest in a right of access to the new portion of 48th Street.

Fairmont next contends Bolling should have been made a party to the eminent domain action because of the correction deed Home Savings delivered to Bolling in January, 1967, after the eminent domain action was instituted in October, 1966. What has been said with reference to Fair-mont’s first point fully disposes of this point. The Bolling tract never enjoyed a right of access to 48th Street prior to commencement of the eminent domain action and he thus suffered no compensable loss. Furthermore, the correction deed from Home Savings to Bolling excepted any area within the rights of way of 48th Street and Randolph Road; at the time such deed was delivered the 80 feet between the Bolling tract and the original 48th Street was within the new street right of way as described in the eminent domain action. Thus, Boll-ing did not acquire a right of access to 48th Street, as it existed prior to the widening, by the correction deed, so he did not become a necessary party in the eminent domain proceeding by reason of the correction deed.

In its final point, Fairmont contends its predecessor in title, apparently referring to Bolling, possessed an easement of necessity which arose by operation of law for access to 48th Street. Fairmont contends its tract is deprived of any access to 48th Street and therefore Bolling would have acquired the right to obtain an easement of necessity for access to 48th Street. In this argument, Fairmont ignores the fact that the Bolling tract, later acquired by Fairmont, has a right to 90.3 feet of access on the east onto Randolph Road. Thus, the tract owned by Fairmont is not landlocked. It is elementary that a private way of necessity can be established only when there is no other means of passing from the property onto any street or road. Curtman v. Piezuch, 494 S.W.2d 668, 671[4, 5] (Mo.App.1973). Since access exists from this tract onto Randolph Road, the argument of a private way of necessity is untenable.

Finally, Fairmont cannot claim an absolute right to direct access to 48th Street because Fairmont does, not have the right to travel in any particular direction from its property. It has only the “right of ingress and egress to and from his property and the abutting public highway.” State v. Meier, 388 S.W.2d 855, 857[1-5] (Mo. banc 1965). Once on the public street or highway, travel can then proceed to any point on the system of public streets and highways. In short, Fairmont is not entitled as a matter of law to access onto 48th Street when access is provided to the public streets and highways via Randolph Road.

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    Donald DUFFY, Plaintiff-Appellant, v. CLARK OIL & REFINING CORPORATION, Defendant-Respondent.
    No. KCD 29797.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Jimmie D. James, David G. Sperry, James & Sperry, Independence, for plaintiff-appellant.
    Russell D. Jacobson, Thomas B. Sullivan, III, E. Denver Void, Void, Sullivan, Finnegan, Gordon & Williams, Kansas City, for defendant-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

In this case begun by plaintiff Duffy in magistrate court as an action in unlawful detainer with a counterclaim by defendants, the magistrate found for plaintiff. An appeal to the circuit court resulted in a verdict for the defendant in a court-tried case. Defendant’s counterclaim was abandoned. The issue is whether the possession of plaintiff was sufficient to maintain the action.

In this action, the issue is primarily factual. The evidence is to be considered under the mandate of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). To the extent that the issue is a mixed one of law and fact, the applicable law may be summarized as follows: forcible entry and detainer is a possessory action, and in such action, it is immaterial whether the party dispossessed by force had title or even rightful possession. Hill v. Morrison, 436 S.W.2d 255 (Mo.App.1969); Lindsay v. McLaughlin, 311 S.W.2d 148 (Mo.App.1958); Prewitt v. Burnett, 46 Mo. 372 (1870). Consequently, the question which must be ultimately resolved is whether plaintiff by his actions abandoned possession.

Plaintiff argues that he need not reside on the land or actually occupy any building on the property in order to be in actual possession. Richardson v. Liggett, 453 S.W.2d 249 (Mo.App.1970); Robinson v. Ramsey, 190 Mo.App. 206, 176 S.W. 282 (1915).

Looking now to the evidence which supports the trial court’s judgment, plaintiff was the lessee of Clark. Because of a robbery at the station, he became apprehensive and undertook to relieve himself of the burden of operation. In order to accomplish this, he entered into an agreement with one Wiggs to operate the station while Duffy took an extended vacation. Under the agreement Duffy received $400 a month, and Wiggs undertook to pay this amount plus expenses, looking to the expected profit for his compensation. Clearly, the $400 was “off the top.” The payment to Duffy was considered as rent by Wiggs and as profit by Duffy. Importantly, Wiggs purchased the inventory on hand when Duffy left. The accountant for both Wiggs and Duffy said the transaction was a sale of assets. Clark entered by force and dispossessed Wiggs and his employees. Thus, the essence of the controversy is whether Duffy had sublet the station to Wiggs or was in some sort of joint enterprise with Wiggs.

The trial court ruled against the plaintiff on the mixed issue of law and fact with respect to the status of Wiggs in finding that the plaintiff’s arrangements with Wiggs amounted to an assignment or sublease in violation of the terms of plaintiff’s lease. The assignment is presumed when one other than the lessee is found in possession. Clasen v. Moore Brothers Realty Co., 413 S.W.2d 592 (Mo.App.1967).

Once it was determined, as the trial court did, that there was a sublease of the premises, then the plaintiff did not hold possession sufficient to bring an action in forcible entry and detainer. The title of Clark was not in issue; it was the possession of the plaintiff that was at stake. Thus, the trial court’s finding against the plaintiff was supported by evidence and is not erroneous as a matter of law.

The judgment of the trial court is affirmed.

All concur.


text:
    CENTRAL MISSOURI PAVING COMPANY, INC., a Missouri Corporation, Petitioner-Appellant, v. The LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri, the Division of Employment Security of Missouri, and Richard M. Walker, Respondents-Respondents. CENTRAL MISSOURI PAVING COMPANY, INC., a Missouri Corporation, Petitioner-Appellant, v. The LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri, the Division of Employment Security of Missouri, and William E. Walker, Respondents-Respondents (two cases).
    Nos. 29805, 29806 and 29975.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.

      Channing D. Blaeuer, Cynthia A. Suter, Blaeuer & Suter, Moberly, for petitioner-appellant.
    D. J. Chatfield, Jefferson City, for respondents-respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Richard M. Walker, William E. Walker and Gerald Pottinger applied for unemployment benefits under the Missouri Employment Security Law, Chapter 288, RSMo 1969. The deputy found all three applicants to be eligible, but on appeal the referee sitting as an appeals tribunal reversed and found all three applicants disqualified. On appeal to the Labor and Industrial Relations Commission, the Commission found the applicants eligible. On appeal to circuit court the court which heard the appeals of Richard Walker and William Walker affirmed the finding of the Commission as did the court which heard the appeal of Pot-tinger.

On this appeal the determinative issue is whether or not the three applicants quit their work for good cause attributable to their work or to their employer. Reversed.

All three applicants had worked for Central Missouri Paving for over six years, with Pottinger having been employed for seven years and Richard Walker for seven and one-half years. Richard Walker and William Walker were brothers. Richard was a foreman, Pottinger was a raker, or roller, and William worked in various capacities — running a roller, shoveling, raking and driving a water truck. All three left their work on August 27, 1976. The undisputed reason the three left was a disagreement over wages for the period from July 26 to August 27, 1976.

Central Missouri Paving performed work for both public bodies and private individuals or companies. For work performed for public bodies, in this instance principally the State Highway Commission, § 290.210 et seq., RSMo 1969 required that prevailing wages, as determined by the Department of Labor and Industrial Relations, be paid. For private work, no such requirement existed. The prevailing wages for public work were higher than Central Missouri Paving agreed to pay the three employees for private work.

In August, 1976, the three applicants decided they were entitled to receive the higher prevailing wage rate of pay for time spent working on State Highway projects for the necessary work of preparing machinery prior to the actual commencement of asphalt laying and also for clean-up after the asphalt had been laid. Central Missouri Paving had been estimating the arrival time of the first load of asphalt on the construction site and began the prevailing wage rate at that time. For any time spent prior to this all three employees were paid on the private wage scale. At the conclusion of the day, the time the last load of asphalt had been run through the machines was estimated and the prevailing wage rate was discontinued. For any time spent thereafter the employees were paid at the private scale.

There is no dispute between the parties as to the facts. Pottinger, who formerly had worked under another foreman, but in August, 1976, worked under Richard Walker, had previously complained that he did not think the prior foreman kept his time correctly and that he was not paid the prevailing rate for the time spent before and after the actual laying of asphalt. On August 27,1976, he told Mr. Eads, the president of the paving company, that he would not work for his former foreman unless he could keep his own time. When informed that he could not keep track of his own hours, he quit.

On August 22, 1976, Richard Walker told Mr. Eads that if he and William were not paid the prevailing wage rate for time prior and subsequent to the actual laying of asphalt, both of them would quit. There is no evidence of any other efforts to resolve the disagreement as to whether the prevailing rate should have been paid for the disputed time. However, Pottinger did go to the State Highway Commission about this problem after he quit.

In all three cases the referee acting as an appeals tribunal found the employees did not act as reasonably prudent persons in resolving the wage dispute and should have gone to the proper State agency in an effort to resolve the issue before quitting their jobs. The referee found the three did not have good cause attributable to their work or to their employer and were therefore disqualified. The Commission found in all three cases essentially the same facts as the referee and stated, “it seems clear that the employer is violating the requirements of the prevailing wage law, § 290.210 et seq., RSMo 1969, and very possibly the federal wage and hour law. We feel that when an employer is not paying in accordance with the requirements of State law, the claimants had good cause to quit when their demands to be properly paid were not met.”

This court finds error in the Commission’s conclusion because the record does not demonstrate the applicants were correct in their assertion that the disputed time should have been paid at the prevailing wage rate rather than at the lower rate. Nor is an answer found to this question in § 290.210 et seq.; the sections do not spell out whether prevailing wages are to be paid for inei-dental work such as preparation and cleanup. However, it is unnecessary to determine on this appeal whether the applicants were entitled to the higher rate for all of the time they claimed. Rather, the question to be determined is whether the applicants quit their jobs for good cause attributable to their work or their employer.

The burden of proof to establish good cause rests upon .the applicants and “ ‘[wjhether the favorable evidence establishes good cause is a question of law.’ Citizens Bank of Shelbyville v. Industrial Commission, supra [Mo.App.], 428 S.W.2d [895] at 897[3].” Belle State Bank v. Ind. Com’n Div. of Emp. Sec., 547 S.W.2d 841, 844[1], [2] (Mo.App.1977).

No case has been cited or located which involves the facts present here. However, this court finds the reasoning of the referee to be correct when he found the applicants should have made greater efforts to resolve the dispute before resorting to the drastic remedy of quitting their jobs. Pottinger did go to the State Highway Commission after he quit, but he and the other two could have gone to the State Highway Commission or the Department of Labor and Industrial Relations before quitting in an effort to determine the existence of rules or regulations which might resolve the dispute. The referee found that on the day Pottinger quit, he merely informed the president of the Paving Company that he was quitting and made no effort to resolve the dispute. In the case of the Walker brothers, just five days before quitting they gave what amounted to an ultimatum, stating that if their demands were not met they were quitting. Likewise, they could have made efforts to discuss the matter with the employer or to obtain advice from an appropriate State agency to assist in resolving the dispute before quitting.

An essential element of good cause to quit is good faith and the standard by which good cause is measured is one of reasonableness as applied to the average man or woman. Belle State Bank, supra at 846, 847[5]. This court concludes that all three applicants have failed to sustain their burden of showing the essential element of good faith which in turn would tend to show the existence of good cause to leave their employment. In the case of Potting-er, he quit primarily because the company would not agree that he could keep his own time when the well established policy required the foreman to do this. In addition, Pottinger had a complaint about the time at which the prevailing rate was to begin. Common to all three is the fact the company for a number of years had followed the same practice in determining when to begin and end the payment of the prevailing wage with no complaint until just a few days before all three quit. The evidence does not show any good faith effort on the part of the three to have a discussion concerning a change in the long-standing policy nor does it show any effort by any of the three to obtain any outside assistance or advice from any State agency which might be involved.

The record does show a sudden decision on the part of all three that unless their demands were met within a few days they would quit. On this record this court concludes the referee was correct in finding the three did not act as reasonable men under these circumstances. The Commission should have affirmed the referee.

Nothing in this opinion should be construed as passing on the question of whether Central Missouri Paving was in violation of the prevailing wage law. The holding in this case is confined to finding the three applicants did not exert good faith efforts to resolve the dispute as to the rate of pay for the preparatory and concluding time connected with the actual construction.

In each case the judgment of the circuit court is reversed and the cause is remanded with directions to remand each cause to the Labor and Industrial Relations Commission with directions to affirm the decision of the appeals referee.

All concur.


author: WELBORN, Special Judge.

text:
    James Earnest CAIN, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29837.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Bruce H. Beckett, Smith, Lewis & Rogers, Columbia, for appellant.
    John D. Ashcroft, Atty. Gen., Jeff W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   WELBORN, Special Judge.

Appeal from denial of relief after eviden-tiary hearing upon motion to withdraw plea of guilty upon which appellant had been sentenced to three years’ imprisonment on a charge of driving under the influence of narcotics. § 564.445, RSMo 1969.

On April 27, 1976, James Earnest Cain, represented by David Doak of the Public Defender’s office, entered a plea of guilty before Judge John M. Cave of the Boone County Circuit Court to a charge of driving under the influence of narcotics. After extended interrogation of the defendant by the court, the plea was accepted and defendant was sentenced to three years’ imprisonment, to run concurrently with a five-year sentence previously imposed upon defendant in the Callaway County Circuit Court.

On April 80,1976, defendant was received at the Missouri State Penitentiary. He was immediately in isolation in the prison hospital because of lesions on his legs and genitals. Upon admission to the hospital at around 1:45 P.M., he had a temperature of 100 degrees which rose to 104.2 by 4:15 of that date. The lesions were found to have been caused by staphylococcic infections and serology was positive for syphilis. Defendant was treated with penicillin and other antibiotics and remained in isolation in the prison hospital for 17 days.

Sometime around August 1, 1976, Cain filed a pro se motion under Rule 27.26 to set aside his conviction. Counsel was appointed and on October 20, 1976, counsel moved to amend the original motion to include a prayer for withdrawal of his plea of guilty under Rule 27.25, alleging as grounds therefor that defendant’s guilty plea had been made while he was suffering from venereal disease and severe staph infection and after he had been refused medical treatment in the Boone County jail for four weeks; that the plea was motivated by a desire to be sent to the State Penitentiary so that he would receive prompt medical treatment for his illness; that the plea was made under coercive circumstances then beyond his control, which forced him to enter an involuntary plea of guilty.

At the hearing on his motion, Cain testified that he had received antibiotics for the “running sores” on his body during the last two days of his incarceration in Florida prior to his extradition to Missouri near the end of March, 1976. After he had been placed in the Boone County jail, the sores kept getting bigger and spreading and about the last week of his stay there “it really started getting real noticeable, real bad.” Cain said that during his first two weeks in the Boone County jail, he wrote notes to the head jailer, asking to see a doctor. Two of the notes were given to jailers and one was entrusted to a trustee for delivery, but Cain received no response. He said that he gave a note to a prisoner who was to appear in court for delivery to the judge but the jailer would not permit the prisoner to give the note to the judge. He testified that he made a verbal request to see a doctor about every time he saw a jailer, but the request was not heeded and he received no medical attention in the Boone County jail.

Cain testified that he finally asked his attorney Doak to see what he could do. on his behalf on a plea-bargaining arrangement, with a plea to be entered immediately. Doak arranged for a three-year sentence to run concurrently with a five-year Callaway County sentence and Cain accepted the arrangement. According to Cain, he pleaded guilty “to get medical attention.”

Cain acknowledged that he did not mention his health problem to Doak. According to Cain, Doak “just didn’t act like he was a very good friend of mine. * * * He just wanted to get it over with.” “ * * * [H]e just wanted to get me out of his hair.” Cain further acknowledges that he made a negative response to the following question asked by the judge at the time of the guilty plea in the course of a lengthy and detailed examination of appellant: “All right, sir, now the Court has asked you a good many questions about your plea of guilty. Is there anything that the Court has not inquired about that might in any way be forcing you against your own best judgment to enter this plea of guilty?” Cain’s explanation was that if he had mentioned his health problem, “ * * * they wouldn’t accept my plea of guilty and I’d been sent back to jail * * * in Boone County.” The foremost thing in his mind was “getting away from that jail and getting some help” and he was willing to lie to the judge to accomplish that end.

Former fellow prisoners in the Boone County jail testified to appellant’s health problems while he was in the jail. The physician who attended prisoners in the jail testified that he gave no treatment to appellant. A medical officer at the penitentiary testified to appellant’s condition upon his arrival at that institution. Both medical witnesses stated that an untreated staph infection could become generalized throughout the body and result in death.

Mr. David Doak testified on behalf of respondent. He stated that he had been appointed to defend appellant on the charge of driving under the influence of narcotics. He testified that the case had been scheduled for trial on one occasion and that he and appellant showed up for trial but before the case was called appellant disappeared. When appellant was returned to the Boone County jail, Doak saw him once or twice there. According to Doak, appellant was under the “distinct impression that there was absolutely no chance now that he could stay out of confinement.” Appellant initiated the guilty plea talk and was interested in getting his sentence on the charge to run concurrently with his Callaway County sentence. Appellant said nothing about health problems. He did tell Doak that he wanted to get the guilty plea “done quickly.” Doak said that was not an unusual request and he conceded that conditions at the Boone County jail were such that the request was not unusual. “I think the conditions here are much worse than they are at the Penitentiary.”

In his findings of fact and conclusions of law, the court stated:

“ * * * In view of the plea bargain struck and fulfilled, and the otherwise voluntary plea of guilty in this case, it appears that the conditions in the jail were simply a motivating factor in the timing of this plea of guilty. The evidence does not meet the heavy burden of proof, alluded to but not found to exist in State v. Taylor, supra, to establish that the coercive nature of the penal conditions reached the level of cruel and unusual punishment and thus were directly related to the root decision of whether to enter a plea of guilty.”

In this court, appellant contends that the preponderance of the evidence established that he was denied needed medical attention while confined in the Boone County jail and that the trial court, therefore, erred in finding that the condition of his confinement did not amount to cruel and unusual punishment. He further contends that the denial of medical care at the Boone County jail rendered the condition of his incarceration there so inherently coercive that it must be held as a matter of law that his plea was tainted to the extent that he should be allowed to withdraw it.

State v. Taylor, 529 S.W.2d 427 (Mo.App.1975), contains a statement of the law which governs this case. In that case, a defendant sought to withdraw his plea of guilty on the grounds that his plea was not entered voluntarily but was the product of coercion arising from several alleged incidents of harassment and beating. In considering the complaint, the court stated (529 S.W.2d at 429-430):

“Appellant’s claim of dissatisfaction with jail conditions yielding an involuntary plea is not a novel one. It appears that such complaints have been uniformly dismissed by the courts. Finding the guilty plea to be voluntary, the issue of conditions in the jails is usually dismissed with some variant of the broad statement that:
“ ‘Dissatisfaction with a penal condition, brought about by one’s own conduct, and a hope that by a guilty plea a different kind of incarceration might be achieved are scarcely factors of involuntariness in a plea. They smack instead only of a desire to achieve as soon as possible a new condition of servitude.’ Verdon v. United States, 296 F.2d 549, 552 (8th Cir. 1961); Collins v. State, 450 S.W.2d 186, 190 (Mo.1970); Hontz v. State, 491 S.W.2d 289 (Mo.1973); Dickson v. State, 449 S.W.2d 576 (Mo.1970), and Coleman v. State, 473 S.W.2d 692, 694 (Mo.1971), among others. This broad statement may be understandable where there is a determination by the court that the conditions of the jail were simply a motivating factor in the timing of the plea rather than in the actual decision to enter a plea, Langdeau v. State of South Dakota, 446 F.2d 507, 508 (8th Cir. 1971) and Swain v. State, 492 S.W.2d 778, 780 (Mo.1973). If, however, the oppressive character of the inearceration reaches to the level of cruel and unusual punishment, Johnson v. Lark, supra, and the defendant could sustain the heavy burden of proof to effectively establish that the coercive nature of the penal conditions was directly related to the root decision of whether to enter a plea, it may be undesirable to write off the defendant’s contention under the broad statement of Verdón and cases following. Divisions between the vol-untariness of the plea and allegations of a coerced decision to enter that plea seem tenuous.”

Thus, appellant in this case must have, by the preponderance of the evidence, shown to the satisfaction of the trial court that the condition of imprisonment of which he complains rose to the level of cruel and unusual punishment. If that requirement is satisfied, he is then met with the problem of sustaining the heavy burden of proof to establish that the coercive nature of the prison conditions was directly related to the root decision to plead guilty.

This latter determination must be one of fact for the trial court. Appellant asserts that the facts of this case make the issue one of law. However, no case is cited which has been decided on that basis. The issue is basically whether or not, in view of all of the circumstances, the plea of guilty was knowingly and voluntarily made.

In this case, the correctness of the trial court’s assumption as to the character of appellant’s confinement is not material if its conclusion that such conditions, whatever their proper characterization, were not directly related to the root cause of the decision to plead guilty is not clearly erroneous. Rule 27.26{j).

Basically the support for appellant’s contention that the denial of medical attention was the root cause for his plea of guilty must rest upon appellant’s assertions to that effect. However, the trial court had to consider those assertions in the light of appellant’s denial at the time of the plea that anything not mentioned by the court in its interrogation was in any way forcing him to plead guilty against his own best judgment. The appellant’s explanation of that reply — that if he had complained at that time his plea would not have been accepted — is not so convincingly plausible that it required acceptance of the postsen-tence hearing assertions.

The testimony of appellant’s fellow prisoners at the Boone County jail went only to the question of appellant’s need for medical attention and his efforts to obtain it. None of them purported to attempt to assess the seriousness of the’ conditions of which appellant complained. They did say that appellant “just says he didn’t feel very good.” Appellant’s evidence did show that he was actually ill when he arrived at the penitentiary, three days after his plea and sentencing. There was no evidence that his condition at the time that he initiated the guilty plea discussion with his attorney was the same as when he was received at the prison.

The court also could consider the fact that appellant mentioned no health problem to his attorney. Appellant’s explanation that his attorney did not seem to like him and just wanted to get him out of his hair must be viewed in the light of evidence that the attorney had been prepared to try the case at one stage.

The attorney’s testimony that appellant initiated the guilty plea suggestion and that appellant’s principal concern was in getting his sentence to run concurrently with the Callaway County case is significant. Furthermore the trial court could consider the attorney’s testimony that appellant had admitted his guilt to him.

Under all of the circumstances, this court does not find the trial court’s conclusion that the condition of appellant’s imprisonment was not the root cause of his plea of guilty clearly erroneous. Therefore its judgment will be affirmed.

Judgment affirmed.

All concur.


text:
    Robert Edward MARSCH and Shannon Kaye Marsch, Petitioners-Respondents, v. Raymond James WILLIAMS, Respondent-Appellant.
    No. KCD 29886.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Ronald J. Prenger, Jefferson City, for respondent-appellant.
    L. H. Wilbers, Jefferson City, for petitioners-respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Robert E. Marsch and Shannon Kaye Marsch instituted this proceeding by a petition to adopt Jeremy Stirling Williams, Shannon’s son by a prior marriage. Section 453.030 (all statutory references in this opinion are to RSMo 1969) by its general terms required the consent of Raymond James Williams (Shannon’s former husband and the father of Jeremy) to the adoption, but he refused to consent.

A hearing was therefore held in the trial court to determine whether Raymond’s consent could be dispensed with under the provisions of Section 453.040-4 on the ground that he had willfully abandoned or willfully neglected Jeremy for a period of at least one year immediately prior to the filing of the petition. After hearing the evidence, the trial court entered an order finding that Raymond had willfully abandoned and willfully neglected Jeremy for more than one year and that it would be in the best interest of Jeremy for the parental rights of Raymond to be terminated; and the court thereupon ordered that the parental rights of Raymond be terminated and that the child be placed in the custody of Robert and Shannon. Raymond appeals from that order.

The argument in this court focuses on the sufficiency of the evidence to show willful abandonment or willful neglect by Raymond. That point is relatively simple, the resolution of which would turn upon the credibility of conflicting evidence, and which would be controlled by Rule 73.01-3 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). See Adoption of R. A. B. v. R. A. B., 562 S.W.2d 356 (Mo. banc 1978); D. A. Z. and R. M. Z. v. M. E. T., Jr., 575 S.W.2d 243 (Missouri Court of Appeals, St. Louis District No. 39377, decided November 21, 1978). Unfortunately we cannot reach that issue because of lack of jurisdiction, in that there has been no final judgment in the trial court. Even though respondents have not raised this point, this court must notice the jurisdictional defect sua sponte. In re Smith, 331 S.W.2d 169 (Mo.App.1960); Lincoln Cty. Mem. Hosp. v. Mo. State Bd. of Med., 549 S.W.2d 665 (Mo.App.1977).

The right of appeal in this case is accorded by Section 453.060-4 which provides that an appeal under Chapter 453 shall be “in the manner and form provided by the civil code of Missouri.” The applicable provision in the civil code is Section 512.020 which so far as here pertinent requires the appeal to be from a “final judgment.” The Order of Temporary Custody, which included the termination of parental rights and from which this appeal is taken, does not qualify as a final judgment. As an aside it can be said that the order awarding temporary custody was unnecessary and superfluous. Shannon had been awarded custody of Jeremy by the earlier divorce decree, and Robert had come into lawful joint custody from the date of his marriage to Shannon, from which time the child has lived continuously in the new marital home. In re Adoption of Siler, 240 Mo.App. 1097, 225 S.W.2d 379 (1949); In re Adoption of P. J. K., 359 S.W.2d 360 (Mo.App.1962). Therefore an award of custody to Robert and Shannon added nothing to what the petitioners already had. Further, that part of the order terminating the parental rights of Raymond would have been appropriate under Section 211.441, but was not necessary under Chapter 453; the result of cutting off parental rights of the natural father is accomplished automatically by the adoption decree under the provisions of Section 453.090. A finding of abandonment or neglect in an adoption proceeding is merely to provide a basis for dispensing with consent and to permit the granting of a decree of adoption.

In any event, the Order of Temporary Custody entered by the trial court was not a final judgment because the issue of adoption by the petitioners still remains open and undecided. Any appeal can only be from the decree of adoption. In re Smith, supra; In re Adoption of LLV and SAV, 457 S.W.2d 2 (Mo.App.1970); In Interest of Beste, 515 S.W.2d 530 (Mo.1974). See also Adoption of Mike and Russ, 553 S.W.2d 706 (Mo.App.1977).

This appeal is dismissed for lack of jurisdiction.

All concur.