author: SHANGLER, Presiding Judge.

text:
    In re George Dewey COATS TRUST. Mildred DeArman COATS, Appellant, v. W. C. WHITLOW, Trustee, William Richard Coats, the Missouri School for the Deaf, Dorothy June Atwood, Mary Jane Friery, the Fulton Presbyterian Church, and the National Association for the Deaf, Respondents.
    No. KCD 29533.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 1979.
    Application to Transfer Denied June 19, 1979.
    Joe D. Holt, Holt, Krumm, Hamilton & Shryock, Fulton, for appellant.
    D. James Mariea, Whitlow, Riley, Mariea & Dunlap, Fulton, for respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

The plaintiff Mildred DeArman Coats, life beneficiary under a testamentary trust settled by her husband, George Dewey Coats, seeks a declaration to direct the trustee, W. C. Whitlow, to encroach upon the corpus of the trust estate to adequately provide her with a living according to the terms of the trust. The trustee asserted, and the trial court adjudged, that the trustee had discretion under the trust terms to refuse to invade the corpus while the beneficiary wife held other assets, liquid and readily available, to satisfy her living needs.

The testament and codicil of George Dewey Coats, as admitted to probate, at Article Second created a trust in favor of the wife, Mildred DeArman Coats:

SECOND: If my wife, Mildred DeArman Coats, shall survive me, I give, devise and bequeath all of the rest, residue and remainder of my estate to W.C. Whitlow, to hold the same with full discretionary powers of management, sale and resale, investment and reinvestment, and to keep the same invested, IN TRUST, however, for the following use and purpose, namely:
1. The Trustee shall first pay to my wife, Mildred DeArman Coats, on a monthly basis, the net income of the trust fund.
2. In addition to the said income, she shall be entitled to live in my home, if she so desires.
3. I give my Trustee full authority and power to encroach upon the principal of the Trust Estate in order to provide a living for my wife, and further, in the event of an emergency due to illness, accident or other misfortune, I give the said Trustee full authority to encroach upon the principal of the Trust Estate for any amount necessary to alleviate such emergency.
4. The Trustee may, in his discretion, use and apply such income and/or principal for the benefit of my wife in lieu of making such payment directly to her. [Emphasis added.]

The testator Coats died in 1965. The trustee Whitlow took up his duty some two years later and has since distributed the annual income of $1200 from the trust estate to wife Coats. She now resides with two sisters in Arkansas and her shared obligations for living expenses, exclusive of house maintenance and repair, amount to $500 each month. The trust income — it is evident — does not meet the cost of the expense of her daily life. The wife Coats, however, has available personal resources of $530 each month which derive from a retirement pension as a teacher, a retirement pension from the employment of her husband, and a social security stipend. In addition, she has on deposit $15,000 which accrues an annual income of some $1,000.

The wife Coats seeks a judicial instruction that the trustee invade the corpus of the trust to provide a living for her [in the terms of the trust] for which the income, merely, from the trust estate does not suffice. The trustee resists on the premise that the trust terms do not direct encroachment upon the corpus while the beneficiary has resources otherwise available for her living. Thus, the appeal presents an issue of law: whether a trustee may consider other resources available to a life beneficiary under a provision of trust which grants power to encroach upon the principal for the support of the beneficiary.

The salient question such a case presents [ Winkel v. Streicher, 365 Mo. 1170, 295 S.W.2d 56, 61 (banc 1956)] is:

“ ‘Does the will constitute an absolute gift of support and maintenance which makes a charge upon the income from the estate and upon principal? If so, then the private income of the beneficiary cannot be considered. If, however, the gift is of income coupled with a provision that the principal may be invaded in case of need, the private income of the beneficiary must be considered in determining whether such need exists.’ ”

That primary determination rests upon the intention the testator meant for the trust provisions — discerned from the intrinsic instrument when the sense of the language is clear, and as aided by surrounding circumstances when the sense is in doubt. Cockrell v. First National Bank of Kansas City, 357 Mo. 894, 211 S.W.2d 475, 477[1-4] (1948); § 474.430, RSMo 1969. The parties do not doubt that Article Second, subpara-graph 1, makes an absolute gift to the wife beneficiary of the net income of the trust fund. Nor do they doubt that the wife beneficiary has the absolute benefit of residence in the home of the trustor. They contend over whether, in addition, the testament intends an unconditioned access to the trust estate assets, corpus as well as income, to provide a living for the beneficiary — without regard to her private resources, or whether the language of the will intends that the trustee shall have the discretion to encroach upon the corpus for need, and in that exercise, may consider the private income of the beneficiary.

The dispute relates to the terminology of Article Second, subparagraph 3: I give my Trustee full authority and power to encroach upon the principal of the Trust Estate in order to provide a living for my wife . The trustee contends that these terms are a grant of power and that a grant of power vests discretion in a trustee as to the manner of use. It is a matter of rule that a court will not interfere with an honest exercise of discretion by a trustee of a conferred power [First National Bank of Kansas City v. Hyde, 363 S.W.2d 647, 655[19, 20] (Mo.1963)]—so that if subpara-graph 3 intends to allow the trustee the reasonable and honest judgment of need of the beneficiary before incursion into the estate corpus, then his refusal to use the principal to support her living while substantial personal assets remain available to the beneficiary is not for challenge before us.

The plain words of integral subparagraph 3, however, merely confer a power — a right to act — a vestment of authority — to encroach upon the corpus to provide a living for the wife. They neither direct the trustee to any action nor confer a discretion. The authority or power, in terms, to a trustee to do something may be intended as a direction or discretion, according to the context of the testament or trust. Scott on Trusts, § 187 (3d ed. 1967); Schumacher v. Howard Sav. Inst., 128 N.J.Eq. 56, 15 A.2d 107, 110[4] (1940); In re Carr’s Estate, 176 Misc. 571, 28 N.Y.S.2d 12, 14[1] (1941). Hence, the ambiguity. The doubt whether the trustor meant the support to his wife as an absolute gift of the corpus, as well as the income, or only on condition of need is not resolved by resort to precedent or general rule. The variety of text, circumstance and disposition, from will to will, suggests that the intention of the trustor — as discerned from the language of the instrument aided by the environment of the transaction— alone can wrest the true sense to be given effect. The testament and trust provisions, within the context of execution by the husband Coats, stand on their own, Winkel v. Streicher, supra, l.c. 61.

The circumstances which surround the execution of the instrument show: Coats, husband and wife, married late. He was then 62 years of age and she was 60; he, for the third time; she, for the first. He had fathered one son during a prior marriage; she was without child. They were deaf and each taught at a school for the deaf and earned separate retirement pensions from that vocation. She gave evidence that upon her marriage to Coats, she retired from employment although she was then physically well and able to continue to teach for ten more years. She performed the normal domestic duties while he continued to teach and accompanied him on his professional tours. Mrs. Coats received benefits from her retirement during the marriage and placed them into a savings account. Mr. Coats knew of this and knew also that upon his death the benefits due from his pension would be given over to her. The expenses of the household were paid from the earnings of the husband. Four years into the marriage, Mr. Coats became ill and died. Mrs. Coats attended to him personally during the last illness.

Coats executed a will and a codicil. The will created a trust at Article Second for the benefit of his widow during her life with the remainder to certain charities and persons, his son or heirs, among them. There was provision that should the net estate total less than Fifteen Thousand Dollars at the time of his death, then two parts would be distributed to the widow and one part to the son. The testator Coats was both deaf and dumb so the instructions for the testament were communicated to his attorney by writings. An original will, executed in 1961, designated the wife a residuary beneficiary after the payment of certain bequests to the son, two others, and a church. A year later, Coats in a letter to his attorney expressed dissatisfaction that he may not have provided “for all contingencies” and directed the draft of a new will to include a trust provision that the estate be held “during the life time of my wife, Mildred DeArman Coats, who shall receive the income, and live in my house if she chooses to do so.” The instruction has no counterpart in what became Article Second, subparagraph 3 of the will, which empowers the trustee to encroach upon the principal of the trust estate in order to provide a living for the wife.

This evidence allows disparate inferences of the testamentary intention as to the trust provisions. On the one hand, the absence of mention in the letter of instruction by Coats for a new draft of the will of any trustee power to encroach upon the principal of the estate to provide support for the wife, the knowledge of Coats that his wife had separate resources, the number of residuary beneficiaries, all bear to the conclusion that the trustor intended the support to. the wife to be limited to the income of the estate except for an emergency “due to illness, accident, or other misfortune” described in Article Second, subparagraph 3.

On the other hand, the provision of sub-paragraph 3 for encroachment upon the corpus to provide the wife a living, although not the subject of the written directions of Coats to his lawyer-draftsman [and designated trustee], was not unlikely the result of instruction made known by Coats to his lawyer during one of the occasional visits described in the testimony of the lawyer-trustee. Also, the fact that throughout the marriage Coats supplied the cost of living solely from his own income [with knowledge that Mrs. Coats had a steady, separate pension benefit] implies the intention that her full support should continue from his estate after his death without regard to her private resources. Winkel v. Streicher, supra, l.c. 62. The trust device, we may infer, Coats considered a reasonable method to avoid the hardship which management of the diverse property entails for a woman both elderly and deaf. The provisions of Article Fourth, that should the estate have a value of less than $15,000 at his death [the actual value of the distribution to the trust was some $21,880] then two parts vested absolutely to the widow, implies that the corpus of the trust be as available for her daily needs as would be the property distributable under the contingency of that Article.

However the relevant circumstances may preponderate in favor of a given inference, the actual language of the testament terms remains the primary evidence of the intention of the testator. Winkel v. Streicher, supra, l.c. 59[4, 5]. The trust provision, Article Second, consists of the preamble settlement of trust and four subparagraph expressions of purpose. Subparagraphs 1 and 2, the trustee and beneficiary agree, direct the payment to the wife of the income from the trust fund and her option to occupy the residence. Subparagraph 4 allows the trustee, in his discretion, to use and apply the income and/or principal for the benefit of the wife instead of payment directly to her. Subparagraph 3 [unlike subparagraphs 1 and 2] neither directs nor [unlike subparagraph 4] confers discretion upon the trustee but merely endows the power to entrench upon the corpus of the estate in order to provide a living for Mrs. Coats and, further, in order to relieve an emergency due to illness, accident, or other misfortune.

The pleadings, adjudication and issues on appeal all assume [quite validly, we conclude] that Article Second is a trust for the support of the wife-life beneficiary. The litigation adopts the premise that subpara-graph 1 grants the income from the trust fund to the beneficiary for her support. The only question of testamentary intention raised by the contentions, simply, is whether Article Second constitutes an absolute gift of support to the wife, and so casts a charge upon both the income and corpus of the trust, or was a gift of income with incursion into the principal for emergency only — and then after the private resources of the beneficiary are given account. We reiterate the question and principle on which the litigation rests because Article Second conforms to no paradigm of testamentary disposition for support, even as to a declaration of purpose, but abounds in ambiguity. See: Winkel v. Streicher, supra, l.c. 61[8]; Hoops v. Stephan, 131 Conn. 138, 38 A.2d 588, 590[4] (1944); Orange First Nat. Bank v. Preiss, 2 N.J.Super. 486, 64 A.2d 475, 476 (1949); Annotation: Trusts—Support—Other Means, 41 A.L. R.3d 257.

The preamble of Article Second settles the trust but does not declare the purpose. The text of subparagraph 1 directs the payment of the income from the trust fund to the wife without condition that it be used for her support or daily need. It is not until subparagraph 3 that the purpose of the trust as a device for support [to provide a living] for Mrs. Coats becomes manifest. Subparagraph 4 which allows the trustee discretion to “apply such income . for the benefit of [the] wife in lieu of making such payment directly to her” suggests intention that the gift of the Trust fund income in subparagraph 1 is for support. The two clauses of subparagraph 4, read in juxtaposition, disclose an identical intention that the corpus of the trust be used for the daily needs of the wife. The first clause, we note again, invests the trustee with full power “to encroach upon the principal of the Trust Estate in order to provide a living for [the] wife.” The access to the corpus for that purpose is not delimited by other means available to the beneficiary. That the benefaction of support was intended to be complete, both from the income and corpus, without consideration of the other resources of the wife becomes more certain in terms of the second clause of subparagraph 4 which empowers the trustee “further, in the event of an emergency due to illness, accident, or other misfortune [access to the corpus] for any amount necessary to alleviate such emergency.” The word emergency in this context is akin to necessity [Lyter v. Vestal, 355 Mo. 457, 196 S.W.2d 769 (1946)—an unforseen conjunction of circumstances which calls for immediate action — and [l.c. 773]

call[s] for the trustees’ best informed judgment on the question of the necessity, the propriety and the amount of an encroachment upon the corpus of the trust estate [and] would be a situation where the financial resources of the widow including the widow’s income from the trust estate were, in the best informed judgment of the trustees in considering an urgent need of the widow, in such a state of insufficiency or unavailability that the encroachment would be immediately necessary for the widow’s maintenance, comfort and general welfare.

The power to entrench upon the corpus to provide a living, on the other hand, does not relate to an unforeseen condition of need or urgency, but the expenses of daily life. We derive from the words of the trust and the circumstances relevant to that endowment the dominant intention of the settlor that the wife-beneficiary receive her full support from the trust estate, income and corpus, as an absolute benefaction without regard to her private resources. The discretion of the trustee, in that regard, bears only on the amount to be dispensed for that purpose.

It is to be acknowledged that the Coats trust provisions hew to no prototype nor reflect exact precedent. The three authorities the briefs discuss, Winkel v. Streicher, Hoops v. Stephan and Orange First Nat. Bank v. Preiss, supra, all determined — as do we — that the trust terms were a gift of support to the beneficiary, an absolute charge upon the corpus as well as the income, without regard to other resources of the beneficiary. These determinations rested on a discerned intention of the settlor in the face of language and circumstances both variable and distinctive.

The trust terms in Winkel [which relied for rationale of decision on Hoops v. Stephan, supra] were:

The trustee shall pay the net income and any part of the corpus of the estate, as he in his sole discretion deems necessary, to my niece . . . for the support and maintenance of my said niece.

The income and corpus [unlike the Coats provision] were expressly declared for the support of the beneficiary, but the right of access of the beneficiary to the corpus for that purpose — despite private resources otherwise available to her and the provision that the trust estate was payable for the support of the beneficiary at the “sole discretion” of the trustee, was found to be the dominant intention of the settlor.

The private resources of the beneficiary were not relevant to the use of the corpus of a trust endowed for the “comfortable support and maintenance” of the beneficiaries in Hoops despite provision that the discretion of the trustees determine antecedent to that invasion that the income was not sufficient for that purpose. The intention of support, once again, dominated the allowance of discretion, and was deemed an absolute gift.

The language in Orange First National Bank that the trustees pay the living expenses and cost of other care from the principal of the trust to the extent the income was not sufficient for those purposes was held to surcharge the entire trust estate, corpus as well as income, without consideration of the other property of the beneficiary.

These decisions give effect to the principle declared in Restatement of Trusts, Second § 128(e) and adopted in Scott on Trusts, § 128.4 (3rd ed. 1967):

By the terms of the trust it may be provided that the trustee shall pay or apply only so much of the income and principal or either as is necessary for the education or support of a beneficiary It is a question of interpretation whether the beneficiary is entitled to support out of the trust fund even though he has other resources. The inference is that he is so entitled. [Emphasis added.]

The inference rests on the premise that a testator usually knows the circumstances of the beneficiary, and should the testator intend other resources or obligations for the support of the beneficiary to be given account to determine the amounts dispensed for that purpose, that intention can be readily expressed. Winkel v. Streicher, supra, l.c. 62; Magruder v. Magruder, 525 S.W.2d 400, 406 (Mo.App.1975).

The terms of the testament, consider within the known circumstances of the wife at the time the testator refashioned the absolute legacy under the earlier will into a trust provision for her life support under the subsequent will without condition that her pension stipend and other personal resources be given account, discloses intention that the wife-beneficiary have her full support from the trust estate. The declaratory judgment of the trial court that subpara-graph 3 of Article Second allows the trustee discretion to consider the personal assets of the wife-beneficiary as a condition to encroachment upon the corpus for her support is erroneous.

The issue remains whether the allowance of an attorney fee to the trustee for defense against the claim of the life beneficiary was properly awarded against the trust estate. The wife contends the fee was improvidently granted because: (1) the trustee failed to file an answer; (2) the trustee failed to distinguish between services he rendered to the trust and those rendered to residuary beneficiary Williams Coats; and, (3) the fee was excessive.

The contention that the trustee was careless in the defense of the trust has only technical validity. On the eve of trial, after the petition for declaratory judgment had pended for four years, counsel for the wife life-beneficiary discovered the trustee had no answer on file. The next morning, counsel moved the court to declare the trustee in default and to render judgment on the petition. The trustee had made answer on behalf of residuary beneficiary Coats [joined as a party defendant] and so there was not total default to the petition. The trial court entered interlocutory judgment of default under Rule 74.045 against the trust estate only, but allowed the trustee to defend as to the amount of the claim against the estate. Whatever the rigor of defense intended by the court against the trust estate, the lawyer-trustee [counsel for the trustee and residuary beneficiary Coats] conducted the examination and proof without stricture as to party defendant. And, indeed, the issue as to each defendant was the same: whether the trust provision intended an absolute gift of support for the wife from the corpus as well as income of the trust estate. The amount to be dispensed [the “damages,” within the sense of the trial court order] was not a separate element of proof, but followed as of course from the resolution of the antecedent question of construction.

The lapse of the trustee to file an answer, which prompted the court to declare the interlocutory default — and which, the life beneficiary contends, bars the allowance of attorney fee — was only formal. The litigation pended for four years; during that time the lawyer-trustee made timely answer for residuary beneficiary Coats, moved the joinder of parties defendant and made request for discovery two years after commencement of the action, all without objection. The counsel for the parties consulted and conducted themselves throughout as though the trustee were a party in active defense of the action. That posture continued until the night before the trial when counsel for the life-beneficiary [as we have recounted] discovered the lapse in pleading. At the trial, the trustee offered an answer, but the court refused, although vested with discretion to allow the pleading out of time. Sinclair Refining Co. v. Pankey & Minich, 285 S.W. 138, 140[1] (Mo.App.1926). The answer alleged no issue of fact or law not already tendered by the residuary beneficiary Coats. The refusal by the trial court, where the failure to timely plead was from simple inadvertence of an office person, without prejudice or surprise to any other party, and where, notwithstanding formal answer counsel prepared for trial on the true issue, was a manifest abuse of discretion.

The propriety of refusal of the answer proffered by the trustee and the order of interlocutory judgment of default are not issues on appeal. The events which culminated in those judicial actions, however, bely impression of neglect by the trustee to defend the cause of action brought by the life-beneficiary. Rather, the conduct of the litigation on behalf of the estate was regular and, except for the harmless lapsus, diligent. A trustee who defends an action for the benefit of the trust estate with propriety may incur such costs, the expense of an attorney included, as are reasonable for the purpose. Scott on Trusts § 188.4 (3d ed. 1967). Within this principle, a testamentary trustee is entitled to a reasonable allowance out of the trust estate for counsel fees to respond to an action for declaratory judgment to construe an ambiguous trust provision. Mercantile Trust Company v. Muckerman, 377 S.W.2d 355, 360[3] (Mo. 1964). Nor was the refusal of the trustee to accede to the demand of the life-beneficiary for access to the corpus for support, unconditioned by her personal resources [which precipitated the defense of litigation] unreasonable in the face of the blatant uncertainty of the trust provision.

The court allowed the trustee an attorney fee of $1546.30 as a charge against the estate. The contention of the life-beneficiary that the award was excessive rests on the assertion alone and raises no issue.

Accordingly the declaratory judgment of the trial court is reversed with directions that Article Second be construed as an absolute gift of support for Mildred DeArman Coats with discretion in the trustee to determine only the amount essential for that purpose. The judgment of the trial court of award of $1546.30 attorney fee to the trustee is affirmed.

All concur.

      . The petition by the wife sought a declaration to construe the will so as to allow incursion into the corpus of the trust estate for the support of the wife, at that time estimated by the pleadings to require $300 per month. In oral presentation before commencement of trial, counsel for the wife informed the court that the request for $300 per month was no longer valid and that the evidence would prove the cost of present support. The court understood the issue to fall within the principle of Sumpter v. J. E. Sieben Construction Company, 492 S.W.2d 150, 153[8-11] (Mo.App.1973), that a party in default admits the cause of action except as to unliquidated damages and may nevertheless defend the action as to that element of proof. Sumpter has dubious application to the construction of a testament where the amount in controversy does not constitute damages but is merely incidental to conduct empowered by the testator. The parties make no issue of this ruling on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MOSELEY & COMPANY, Respondent, v. BUILDING LEASING CORPORATION and Alexander J. Barket, Appellants.
    No. 29651.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 1979.
    Application to Transfer Denied June 19, 1979.

      Barnard D. Craig, Jr., Richard M. Shteamer, John E. Craig, Kansas City, for appellant.
    John R. Cleary, Kansas City (Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, of counsel), for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   PER CURIAM.

Jury awarded Respondent judgment upon claim for commission fees relative to the lease of commercial property. Appellants pursue their direct appeal from that judgment. The evidence on record as reflected in the transcript establishes the following facts.

In the fall of 1973, Respondent was granted exclusive authority, by the owners, to sell property referred to as the Gateway Building. The property is located within an industrial park wherein most of the park properties are owned by Appellant, Building Leasing Corporation, hereinafter referred to as B.L.C.

O’Brien Movable Partition Company, (hereinafter referred to as O’Brien) which at the time was already a tenant in another building across the street from the Gateway Building, was contacted by Respondent relative to possible purchase of the Gateway Building. O’Brien declined to purchase the property, but indicated to Respondent its interest in leasing the building.

On November 30, 1973, Respondent contacted Appellants and advised Appellants that the Gateway Building was for sale. The evidence establishes Appellants were not previously aware of the availability of the property.

The parties agreed Respondent could undertake negotiations for the sale of the Gateway Building to B.L.C. and could undertake negotiations of a lease between B.L.C. and O’Brien. The communications between Respondent and Appellants were between Frank Moseley (representing Respondent) and Alexander Barket. Alexander Barket is the President and Chairman of the Board of B.L.C. and hereafter is referred to as Barket. A commission fee for Respondent was discussed, although Appellants testified they did not agree to a fee in the sum of 6% of the total amount of the lease.

This conversation of November 30, 1973 was, the same date by separate letters, reduced to written form by the parties. Respondent’s letter to Appellants restated the 6% commission of the total amount of the lease.

Respondent then proceeded to contact O’Brien and the building owners. O’Brien advised it would contact 60 or 61 of its dealers relative to future expansion by O’Brien. The interest by O’Brien in leasing the property remains obvious from the record. Later, O’Brien informed Respondent that it had heard from about 30% of its dealers and that the total process would take about 60 to 90 days.

On December 3, 1973, Respondent wrote Appellants a letter, the pertinent part which read:

“Alex, on the telephone I advised you the purchase price is $475,000, and I didn’t think the building would be bought for less than $450,000. If you want to sign a contract to buy the Gateway Luggage property at $425,000 with the understanding that you advise you will go to $450,000 to buy it, I will submit the $425,-000 to see if it is acceptable. If it is not acceptable, then change the contract raising the price to $450,000.
“Here, are the conditions under which we must proceed; or Alex, I will sell the building to whomever makes an acceptable offer first.”

Taken by itself, if there was no further evidence, this might appear to be an abandonment effective December 3, 1973; but as the evidence further establishes, on December 26, 1973, Appellants forwarded a letter to Respondent, the pertinent partáis as follows:

“I have not lost interest at all in the Gateway Luggage building, but our friends at O’Brien Partitions have put off any expenditures of a capital nature for at least one year, as they are waiting for the economic situation to change.”

In this letter of December 26, 1973, Appellants further stated,

“If you can get someone to lease this building reasonably, I will buy it immediately. I do want to work with you, Frank.”

In addition to testimony of the parties pertaining to the letters, the letters were received into evidence.

Respondent testified that in April, 1974, it made a follow-up call to O’Brien regarding the leasing of the building. Respondent testified this follow-up was during the time O’Brien was making inquiry as to their market conditions to “ * * * see what their conditions were as to going ahead and leasing the building.”

On August 2, 1974, B.L.C. purchased the Gateway Building directly from the owners. On September 9, 1974, B.L.C. leased the building to O’Brien. Respondent was not a party to either of these transactions. On September 12, 1974, Respondent contacted B.L.C. relative to payment of its commission. After refusal of payment, suit was filed on December 19, 1974.

Six points of error are raised on appeal. Points I, IV, V and VI are taken up together and ruled against Appellants for failure to comply with Rule 84.04(d) and Rule 84.04(e). Compliance with Rule 84.04 is mandatory and requires of the party seeking relief that points relied upon shall state what actions or rulings of the trial court are claimed to be erroneous. Bell v. Bell, 538 S.W.2d 733 (Mo.App.1976). It is not the responsibility of the reviewing court to “ * * * seine the argument portion of an appellant’s brief or the transcript on appeal to ascertain the whereins and whys of claimed errors presented * * * ” Griffith v. State, 504 S.W.2d 324 (Mo.App. 1974).

Point III raised by Appellants reads as follows:

“The refusal of the Court to dismiss Barket individually from the suit was reversible error and created an unfair and erroneous prejudice of defendants’ position in the jury’s eyes.”

A reading of the transcript establishes the parties to this action are experts in the field of commercial property transactions. Both parties enjoy a community reputation relative to that expertise. While the record fails to support Appellants’ contention that Appellants were prejudiced “ * * * in the jury’s eyes * * * ”, there is no substantial evidence to the effect that Appellant Barket ever acted in an individual capacity. To the contrary, the evidence supports the result he was acting as agent and representative of B.L.C. There was nothing in evidence which established mutuality of intention, such as was discussed in the case of Wired Music, Inc. v. Great River Steamboat Co., 554 S.W.2d 466 (Mo.App.1977), that Barket be personally bound in this transaction.

While caution should be employed in setting aside judgments, they in turn must be supported by substantial evidence. Judgments are subject to the scrutiny of the reviewing court and if unsupported by substantial evidence, they can be set aside accordingly. Rule 84.13. The judgment must be reversed as to the individual, Barket.

There remains Appellants’ contentions under Points II A., II B., and II C., which read as follows:

II

“The jury verdict was clearly erroneous and the Trial Court’s refusal to grant a directed verdict to BLC was reversible error in that:
A. There was an abandonment and break in continuity in the negotiations between O’Brien and BLC, and, as a result, plaintiff was not entitled to receive a real estate commission when BLC and O’Brien nine months later agreed to terms.
B. Plaintiff was not the procuring cause of lease simply because plaintiff introduced the parties nine months pri- or to lease execution.
C. Plaintiff did not produce a lessee who was ready, willing and able to lease upon the terms outlined by BLC.”

Point II A. is ruled against Appellants because the issue of abandonment was for the jury to decide and while controverted, the evidence on this issue was substantial. The jury could, from the evidence, find a continuity of negotiations between the parties. See Holman v. Fincher, 403 S.W.2d 245 (Mo.App.1966).

Point II B. is ruled against Appellants for it raises but another fact question upon which the record shows substantial evidence and hence the jury could, from the evidence, find Respondent was the procuring cause of the lease. Holman v. Fincher, supra. On the precise question of whether a broker has been the procuring cause of a sale, lease or transaction, see E. A. Strout Realty Agency, Inc. v. McKelvey, 424 S.W .2d 98 (Mo.App.1968) and on the question of substantial evidence, see Reitz v. O’Neil, 2 S.W.2d 178 (Mo.App.1928).

Point II C. is ruled against Appellants. While Appellants allege Respondent is not entitled to a commission because the latter did not produce a ready, willing and able lessee, if this court had nothing more than this mere allegation by Appellants, the contention would be correct under Brown v. Smith, 113 Mo.App. 59, 87 S.W. 556 (1905), but the evidence herein clearly establishes B.L.C. did purchase the property and subsequent to that purchase, B.L.C. entered into a lease with O’Brien.

Since B.L.C. and O’Brien entered into the lease, the issues of readiness, willingness and ability are eliminated from a claim for a commission unless there has been an abandonment. As it has been ruled above, the judgment and the evidence in support of it conclude there was no abandonment. See Kinsely v. Leathe, 256 Mo. 341, 166 S.W. 257 (1914); Kelly v. Craigmiles, 460 S.W.2d 577 (Mo.1970). That a mere difference in price and terms does not rfemove the obligation to pay a commission fee, see Shephard v. Hunter, 508 S.W.2d 234 (Mo.App.1974).

The judgment as against Appellant Alexander Barket individually is reversed. The judgment in all other respects herein is hereby affirmed.


author: WASSERSTROM, Judge.

text:
    MAPCO, INC., a corporation, Plaintiff-Appellant, v. Kathleen WILLIAMS et al., Defendants-Respondents.
    No. KCD 29763.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 1979.
    Application to Transfer Denied June 19, 1979.

      Michael H. Maher, Kansas City (Swanson, Midgley, Gangwere, Thurlo, Kansas City, of counsel), for plaintiff-appellant.
    Roger Guy Burnett, Liberty, Tom J. Helms, Kansas City, for defendants-respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Mapco, Inc. initiated this litigation in January, 1977, by its petition to condemn a fifty foot easement on defendants’ land upon which Mapco had already implanted its pipelines in the summer of 1976. The landowner defendants answered to the condemnation petition and counterclaimed for ejectment. The trial court held a hearing on Mapco’s petition, following which defendants filed a motion to dismiss Mapco’s cause of action. The trial court sustained that motion and ordered the ruling be final for purposes of appeal. This appeal by Mapco promptly followed.

The major operative facts are not in dispute. In 1974, preparatory to construction of the proposed Smithville Reservoir and Dam by the United States Corps of Engineers, the Corps and Mapco entered into discussions relative to the relocation of an eight inch and a ten inch pipeline already in place on a private easement owned by Map-co. The purpose of the relocation would be to accommodate the proposed lake which would be created by the dam. In the course of those discussions, which were conducted on behalf of Mapco by its Chief Pipeline Engineer Leiber, the Corps produced a map identified in evidence as Exhibit No. 4. Mapco eventually acceded to a relocation route desired by the Corps which was marked upon Exhibit No. 4. Exhibit No. 4 also showed the boundaries of existing right of way owned by the Corps, and the route of the agreed relocation of the Mapco two pipelines was shown to be entirely within the Corps’ existing right of way without intruding upon any neighboring private property.

In 1975, Mr. Leith B. Watkins came to work for Mapco as an Engineer and succeeded to the primary duties of carrying out the relocation project. During 1975, he had occasion to use Exhibit No. 4 for the purpose of preparing certain cost estimates. However, as the project neared the signing of a contract and actual performance of the work, Watkins requested additional topographic maps of the area and the Corps did furnish such maps to Watkins, one of which was identified in evidence as Exhibit No. 7. From that point on, Watkins proceeded to work with Exhibit No. 7 for survey purposes in the laying out of the route to be staked by the surveyors on the ground. Unfortunately, Exhibit No. 7 did not as furnished by the Corps reflect the boundary of the Corps’ existing right of way, and Watkins through error laid out a route for the pipeline relocation which encroached 580 feet on defendants’ land. Watkins submitted to the Corps an “alignment sheet” which showed the exact relocation route as prepared by him and which was attached to the construction specifications. Apparently the alignment sheet was not objected to nor called to Watkins’ attention for correction.

A contract covering the relocation work was executed by the Corps and Mapco on April 1, 1976. Mapco was to be reimbursed for expenses in the sum of $830,000, none of which was for the purpose of acquiring any additional right of way. The route of the relocated line was designated on Exhibit C attached to the contract, and it was the same as that on Exhibit No. 4 in that the route indicated passed south of and did not touch defendants’ property.

Watkins testified that he at all times intended to relocate the pipelines entirely on government property and that he was unaware during the preparation of Exhibit No. 7 and the doing of the actual work that the relocation would go outside the Corps’ existing right of way. He also testified that if he had been aware that the final relocation route passed onto private property, he would have modified the route so as to avoid that result. Mapco first became aware that the final relocation route was on defendants’ property only after the relocation project had already become completed. At that point, in response to a demand by defendants’ attorney that the pipelines be removed from defendants’ land, Mapco offered to purchase a fifty foot easement for $3,000. Defendants rejected that offer, but stated they were willing to sell for $25,000. Mapco found the counteroffer unacceptable and instead filed this suit for condemnation under Section 523.010, RSMo 1969.

As with respect to the basic facts outlined above, so also the parties agree as to the following basic legal principles which serve to mark out and limit the battleground of this litigation: (1) The questions of whether the taking of any given private property is “necessary” for the condemnor’s purpose and the extent and exact location of the property to be taken are matters for political or legislative determination which have been delegated to the condemning authority by virtue of the statute granting the right of eminent domain. Kansas & T. Coal Ry. Co. v. Northwestern Coal & Mining Co., 161 Mo. 288, 61 S.W. 684 (banc 1901); American Tel. & Tel. Co. v. St. Louis, I. M. & S. Ry. Co., 202 Mo. 656, 101 S.W. 576 (1907); State ex rel. State Highway Commission v. Curtis, 359 Mo. 402, 222 S.W .2d 64 (Mo. banc 1949); State ex rel. Coffman v. Crain, 308 S.W.2d 451 (Mo.App. 1958). (2) The courts may inquire into those questions relating to “necessity” only if the protesting landowner alleges and proves that the condemnor’s claim of necessity constitutes fraud, bad faith or an arbitrary and unwarranted abuse of discretion. State ex rel. State Highway Commission v. Curtis, supra; State ex rel. Coffman v. Crain, supra; Phillips Pipe Line Co. v. Brandstetter, 241 Mo.App. 1138, 263 S.W.2d 880 (1954).

It is with respect to the application of the second rule just stated to the facts of this case that the parties part company. Defendants insist that Mapco could have relocated the pipeline solely on government land, that the contract for relocation so contemplated, that Mapco itself so intended, and that its failure to do so must be considered an abuse of discretion. The trial court so concluded, stating: “Under the facts as stated above, plaintiff’s unlawful action in relocating its pipelines on defendants’ land instead of on government ground constitutes an unwarranted abuse of discretion in its determination of necessity to acquire an easement from defendants. * * Any claim by plaintiff that present necessity now exists as a result of its mistake in relocation is disallowed as being in bad faith in light of the above-stated facts.”

Those conclusions by the trial court cannot stand in light of the facts that the relocation had already been completed at the time the petition for condemnation was filed, that the improvement is one of a permanent nature, and that it is devoted to a public purpose. Under these circumstances, Mapco must be permitted to acquire the necessary rights to preserve the improvement in question even though the installation was originally accomplished by virtue of a trespass.

The governing principle is ruled by Harris v. L. P. and H. Construction Co., 441 S.W.2d 377 (Mo.App.1969). In that case a telephone utility entered upon plaintiffs’ land without legal authority, cut down trees and erected telephone lines. The plaintiff landowners brought suit in two counts, the first of which sought statutory damages for trespass and the second prayed ejectment and damages. The defendant utility asserted an “affirmative defense” requesting condemnation of a easement over plaintiffs’ land. Although the court held that the “affirmative defense” could not excuse the trespass, the opinion does expressly recognize that the circumstances gave the defendant utility a privilege to acquire a right in the land so as to preserve the utility improvements, stating at 1. c. 381:

“The trespasser, having no right to remain on the land, is required to cease his trespass and until he does so is liable for damages on a continuing basis. If the trespasser is, however, a public utility an additional factor enters the picture, the welfare of the public. In that case if the trespassing structure is permanent, and if it is needed to serve the public or some portion thereof, then the landowner loses the right to force the removal of the structure and is entitled and required to recover his damages, past, present and future for the appropriation, in one action (but not necessarily in one count). Upon payment of those damages, the public utility acquires an easement for the continued maintenance of the structure. * * * ”

Applying this principle, the court went on to hold that the utility had a good defense to the action in ejectment, stating at 1. c. 383:

“Defendants have by their answers raised affirmative defenses of estoppel and of a permanent structure for public use. Either defense, if established by the evidence would serve to defeat plaintiffs’ recovery under Count II. Ejectment is an action for possession and damages can be recovered in such cause of action only if plaintiff is entitled to possession. Sec. 524.080, Sec. 524.110. Such cause of action is defeated, regardless of the ownership of the real estate, if plaintiffs do not have at the time the action is commenced, a right to possession. Estoppel may defeat such right of possession. * * * And in the case of a public utility, where the interests of the public are involved, proof of a permanent structure for a public purpose would defeat plaintiffs’ pos-sessory action. Luttrell v. State Highway Commission, Mo.App., 379 S.W.2d 137.” (References to footnotes omitted.)

Defendants here attempt to ridicule the above defense by hypothesizing a situation in which a utility might deliberately and with actual malice seize private property, build an improvement thereon, and then resist any relief to the landowners by hiding behind the defense recognized in Harris. We need not and decline to announce any advisory opinion at this time covering the situation hypothesized. That is not this case. Here Mapco by exercising greater diligence could have relocated its pipelines without any necessity for going onto defendants’ land, and its failure to do so unquestionably constituted negligence. However, that is a far cry from a showing of deliberate malevolence. It may well be that if defendants had shown that Mapco’s original entry on defendants’ land was actuated by spite, ill-will or fraud (or perhaps even if defendants had only shown that Mapco had conscious knowledge that it was trespassing when it made entry on defendants’ land for the relocation), then Mapco might be deprived of its special defense in question. But defendants have made no such showing here.

Nor does application of the above doctrine, although permitting Mapco to proceed with condemnation and depriving defendants of any right to ejectment, leave defendants without recourse for Mapco’s original unlawful entry. Contrary to defendants’ statement in its brief, application of this doctrine will not give Mapco “complete insulation from and absolution from all of its sins.” Defendants will still have a right of action against Mapco for that trespass, including a claim for punitive damages. Beetschen v. Shell Pipe Line Corporation, 363 Mo. 751, 253 S.W.2d 785 (1952). The condemnation action commenced in 1977, cannot operate by relation back to wipe out the wrongful trespass which occurred in 1976. As stated in the Harris opinion at 1. c. 384: “No authority exists under the condemnation statutes for the assessment of past damage resulting from defendants’ trespass. In short, the proceeding by way of condemnation cannot relieve defendants from liability for the damages resulting to the plaintiffs from the prior trespassing.” The court of appeals in the Harris case went on to suggest that “[i]n view of what has been said here, and the evidence previously adduced at the condemnation proceedings, plaintiffs may desire to proceed for damages in lieu of ejectment and damages now sought in Count II. If so, leave to amend should be given by the trial court.” Similarly here, defendants may desire to amend their pleadings upon remand so as to seek damages in lieu of ejectment; and if so, leave should be granted.

Reversed and remanded for further proceedings.

All concur.

      . Watkins also attempted to justify the route actually selected on the grounds that it would get further away from the high water level on certain fingers of the lake for safety purposes; was selected so as to avoid a bam, house and pond through which the route depicted on Exhibit No. 4 passed; also to reduce a severe angle and make the route of the pipeline as straight as possible; and also to afford easier access to the valves by setting them closer to the road. The trial court did not accept this part of Watkins’ testimony, finding as follows: “The court does not believe the testimony of Leith Watkins justifying an alternate location for plaintiffs pipelines in order to miss a dwelling house and a farm pond because he also testified that there was another suitable route on government land which plaintiff would have used had it known it would be trespassing on private property.”

      . This general rule has a corollary (not admitted by defendants in their argument) that the condemnor has discretion to take private land of another even though there may be public land or the condemnor’s own land all ready and otherwise available. Kansas & T. Coal Ry. Co. v. Northwestern Coal & Mining Co., supra; Nichols on Eminent Domain, Section 4.11 [3], 4-196.


author: PER CURIAM:

text:
    Keith BROWN, Movant-Appellant, v. The STATE of Missouri, Respondent.
    No. KCD 29864.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 1979.
    Application to Transfer Denied June 19, 1979.

      Gerald Kiser, Liberty, for movant-appel-lant.
    Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J. and WASSERSTROM, J.
   PER CURIAM:

Movant Keith Brown appeals denial, after evidentiary hearing, of his Rule 27.26 motion to set aside a judgment and sentence for robbery imposed June 28, 1972 after a plea of guilty. Affirmed.

Brown filed an earlier Rule 27.26 motion May 2, 1973 alleging that the sentence imposed was in excess of the term agreed as a consequence of a plea bargain and relied on by him in pleading guilty. The trial court, on the basis of the record, denied the motion without an evidentiary hearing. The judgment was affirmed on appeal. Brown v. State, 526 S.W.2d 55 (Mo.App.1975).

The second Rule 27.26 motion, the subject of this appeal, was filed May 5, 1977. Counsel was appointed for movant and an evidentiary hearing was held. Grounds alleged in the second motion charged deficiencies in processing the guilty plea and were (a) improper use of admissions made by Brown during custodial interrogation, (b) failure of the juvenile court to conform to procedural requirements in ordering relinquishment of jurisdiction, and (c) ineffective assistance of counsel at the guilty plea hearing.

Although the trial court considered Brown’s claims of error in the acceptance of his guilty plea and the imposition of sentence and found the claims either to be without merit or not supported by the evidence, respondent contends that the motion should not have been heard on the merits but should have been denied on procedural grounds. In support of this argument, respondent relies on application of Rule 27.-26(d), an alternative not ruled in the trial court’s order.

Rule 27.26(d) provides: “The sentencing court shall not entertain a second or successive motion for relief on behalf of the prisoner where the ground presented in the subsequent application * * * is new but could have been raised in the prior motion pursuant to the provisions of subsection (c) of this Rule.” Rule 27.26(c) requires that the original motion shall include every ground known to the prisoner. Where the facts demonstrate that additional grounds offered as “new” in a successive motion could and should have been presented in the original motion, the trial court is prohibited by the rule from entertaining the subsequent motion. Wilwording v. State, 487 S.W.2d 578 (Mo.1972).

Beyond question, the present allegations of error in the guilty plea proceeding were based on facts of which Brown, an active participant in the events, was fully aware at the time he prepared and filed his first motion. Any contention that movant lacked legal knowledge enabling him to appreciate the significance of potential error has consistently been held insufficient to overcome the requirements of the rule limiting successive motions. Jones v. State, 521 S.W.2d 504 (Mo.App.1975). The result of the adjudication on Brown’s first post conviction proceeding was to foreclose equally as though actually raised both those grounds which were alleged and those, such as the present claims, which could have been alleged but were not. Babcock v. State, 521 S.W.2d 191 (Mo.App.1975).

Brown further claims, however, that if any adjudicatory effect be given to disposition of the earlier Rule 27.26 motion, he is entitled to avoid that consequence on the ground that having been under the then statutory age of majority, he was entitled to appointment of a next friend under Rule 52.02(a) and failure to comply with that requirement rendered the judgment voidable.

Rule 27.26(a) provides that motions filed under the rule shall be considered as independent civil actions and, “[t]he procedure before the trial court and on appeal is governed by the Rules of Civil Procedure insofar as applicable.” (Emphasis supplied.) Brown was initially afforded the protection of Section 211.031, RSMo and the succeeding sections of the Juvenile Court Act following his arrest. His first Rule 27.26 motion was, of necessity, filed after his conviction and sentence under procedures applicable to adult offenders. That prosecution occurred only upon relinquishment of juvenile jurisdiction, a proceeding which had first examined and had found inappropriate the statutory safeguards provided for minors. While Rule 52.02(a) does provide that a minor’s interest in a civil action shall be represented by a guardian or next friend, such is inapplicable to movant by reason of the prior relinquishment of juvenile jurisdiction. Brown’s contention that failure to appoint a next friend relieves him of the consequences of the prior judgment on his claim for relief is without merit and is denied.

Disposition of Brown’s Rule 27.26 motion as presented in 1973 effectively foreclosed consideration of the grounds advanced in the current successive motion and the trial court was entitled to deny movant relief on that basis.

Although Brown’s successive motion was, as above determined, not cognizable by reason of Rule 27.26(d), the trial court considered the motion on the merits and as a matter of grace it will be similarly reviewed here. In this review the appellate court is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Noble v. State, 552 S.W.2d 267 (Mo.App.1977).

Brown first complains of error in the guilty plea hearing when the prosecuting attorney, in response to a question from the bench, described the state’s evidence. Included in that recitation was reference to the contents of a statement obtained from Brown while in police custody but before a juvenile officer arrived. Such statement, it is claimed, was inadmissible because Brown had not been delivered to juvenile authorities as required by Section 211.061 RSMo.

Movant’s assignment of error with respect to the inculpatory statement is far from clear. No attempt was made to place the statement before the court as evidence in support of the charge and no claim is made by movant that his admissions under interrogation were employed to induce the plea of guilty. Movant merely makes the assertion that use of the information derived from the statement must have resulted in some prejudice.

If it be the claim here that without use of Brown’s oral confession, the state’s evidence would have been insufficient to support the charge, and that the plea of guilty is thereby rendered suspect, a motion under Rule 27.26 is not a proper vehicle to consider the issue. State v. Benison, 415 S.W.2d 773 (Mo.1967); Jackson v. State, 512 S.W.2d 249 (Mo.App.1974). If the effect of use of the statement be contended to have been an enhancement of punishment which thereby rendered the plea of guilty to have been no longer voluntary, such a claim is no more than sheer speculation.

Brown was asked after the recitation of the details of the crime by the prosecutor if the facts were correctly stated and Brown confirmed that they were. Pri- or to acceptance of his plea, Brown was informed as to the range of potential sentence and he indicated his understanding of the court’s latitude. The actual sentence of fifteen years imposed was in the lower range of the possible penalty of five years to life. The record supports the conclusion that use of Brown’s oral statements during custodial interrogation did not enhance the sentence imposed and that no prejudice to movant is shown.

Brown next contends that jurisdiction of his case was not acquired because the order of the juvenile court relinquishing jurisdiction did not contain an adequate statement of reasons for the decision. Although examination of the transcript of the hearing before the juvenile court does reveal findings by the judge sufficient to comply with the mandate of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) and Coney v. State, 491 S.W.2d 501 (Mo.1973), the issue is otherwise resolved adversely to movant. Any objections which may have been available to challenge the juvenile court proceedings were waived by the failure of Brown to move in the circuit court for dismissal of the charge or remand of the case to the juvenile court before entry of judgment and sentence. Jefferson v. State, 442 S.W.2d 6 (Mo.1969); Hooker v. State, 569 S.W.2d 403 (Mo.App.1978).

Finally, Brown claims that his conviction and sentence should be set aside because counsel who represented him at the guilty plea hearing and prior thereto was ineffective. Again no claim is made that counsel’s competence in any way affected Brown’s knowledge of the charge nor is there any contention that the plea was in any respect rendered involuntary by the conduct of counsel or by his failure to act. Brown merely complains that counsel should have objected to reference by the prosecutor to the oral statement and should have acted in respect to the alleged defect in the juvenile court order. As neither claim of inadequate representation bears in any way on the issues of voluntariness and understanding, the claims have been waived by the guilty plea and cannot now be considered. Barylski v. State, 473 S.W.2d 399, 402 (Mo. 1971); Giles v. State, 562 S.W.2d 106 (Mo.App.1978).

The judgment of the trial court denying movant’s Rule 27.26 motion is affirmed.

      . The recent case of Fields v. State, 572 S.W.2d 477 (Mo.banc 1978) announces a change in Rule 27.26 proceedings and requires appointment of counsel in all cases where the motion is filed pro se by an indigent prisoner. The decision is, however, by the express language of the opinion, prospective only. Subsequent decisions have confirmed that Fields is applicable only to those cases on motion under Rule 27.26 pending before the trial court from and after the date of rendition of the Fields opinion by the Supreme Court. Johnson v. State, 579 S.W.2d 132 (Mo.App.E.Dist. 1979); Hooper v. State, 579 S.W.2d 647 (Mo.App.E.Dist. 1979); Sterling v. State, 579 S.W.2d 712 (Mo.App.W.Dist. 1979); Johnson v. State, 574 S.W.2d 957 (Mo.App.E.Dist. 1978); Westmoreland v. State, No. 39338 and 39664 (Mo.App.E.Dist. Dec. 5, 1978).


author: SOMERVILLE, Presiding Judge.

text:
    KANSAS CITY ELECTRICAL SUPPLY COMPANY, a corporation, and Rensenhouse Electric Supply Company, Inc., a corporation, Appellants, v. BOMAR ELECTRIC COMPANY, INC., Price Brothers Realty Company, a corporation, Sam Price and Steven Price, d/b/a Price Development Company, Donald B. Steele, Trustee, and Metropolitan Life Insurance Company, a corporation, Respondents.
    No. KCD 29873.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 1979.
    Application to Transfer Denied June 19, 1979.

      Leo T. Schwartz, Kansas City, for appellant Kansas City Elec. Supply Co.
    Wm. J. Hill, Kansas City, for appellant Rensenhouse Elec. Supply Co., Inc.
    James P. Jouras, Kansas City, for respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

This appeal stems from an “equitable” mechanics’ lien proceeding brought under Sections 429.270-429.340, RSMo 1969, by Kansas City Electrical Supply Company and Resenhouse Electric Supply Company, Inc., electrical supplies “materialmen”, as plaintiffs, against (a) Bomar Electric Company, Inc., a defendant by reason of being the electrical subcontractor, (b) Price Brothers Realty Company, a defendant by reason of being the property owner, (c) Sam Price and Steven Price, d/b/a Price Development Company, defendants by reason of being the primary contractor, and (d) Donald B. Steele and Metropolitan Life Insurance Company, defendants by reason of being the trustee and cestui que trust, respectively, of a deed of trust on the property.

Plaintiff materialmen sought money judgments against Bomar Electric Company, Inc. (Bomar) for electrical supplies sold to the latter and purportedly used in the construction of the Willow Creek Apartments, an apartment complex erected on real estate owned by Price Brothers Realty Company, and to have said money judgments adjudicated as mechanics’ liens on said real property and buildings comprising the apartment complex and that they be declared to be “prior, senior and superior to all rights, titles, interests and estates” of the various defendants.

Following a bench trial a money judgment in the total sum and amount of $8,638.49 (“$7,046.17 principal and $1,592.32 interest”) was rendered and entered in favor of Kansas City Electrical Supply Company and against Bomar, and a money judgment in the total sum and amount of $10,242.64 (“$8,579.11 principal and $1,663.53 interest”) was rendered and entered in favor of Resenhouse Electric Supply Company, Inc., and against Bomar. However, the trial court refused the request of plaintiff materialmen to have their respective money judgments established and enforced as mechanics’ liens against the real property and buildings situate thereon.

Bomar, for all practical purposes, acceded to the money judgments rendered and entered against it, as it took no appeal. Plaintiff materialmen however timely appealed and in doing so vigorously take issue with the trial court’s rejection of their money judgments as enforceable mechanics’ liens. The trial court’s reasoning for doing so, as disclosed by certain recitations in the judgment rendered and entered, was twofold: (1) the materials purportedly furnishing the basis for the claimed mechanics’ liens were not sufficiently described or itemized so as to constitute a “just and true account” within the requirements of Section 429.080, RSMo 1969; and (2) plaintiff materialmen failed to prove that the electrical supplies respectively sold by them to Bomar were used in the construction of the apartment complex in question.

The two points relied upon by plaintiff materialmen on appeal lend themselves to being paraphrased as charging the trial court with error for rejecting perfection and enforcement of their money judgments as mechanics’ liens for the reasons recited in the judgment.

It is unnecessary to address both points raised on appeal because the trial court judgment must be affirmed if it was properly reached for either of the recited reasons. Snadon v. Gayer, 566 S.W.2d 483, 491-92 (Mo.App.1978); and Simpson v. Spellman, 522 S.W.2d 615, 617 (Mo.App. 1975). Heeding this principle, the court will confine its opinion to the law and evidence appertaining to the trial court’s finding that plaintiff materialmen failed to prove that the electrical supplies respectively sold by them to Bomar were used in the construction of the apartment complex in question. In doing so, it should be borne in mind that the scope of review undertaken by this court is tightly circumscribed since it must comport with the following standard laid down in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976): “[T]he decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.”

In order for a materialman to have a mechanic’s lien upon a particular structure for materials in this state it is incumbent upon him to prove that the materials comprising the source of the lien “actually entered” or “went into” or were “used in” the construction of the structure upon which he seeks to impress his lien. Tallman Co. v. Villmer, 133 S.W.2d 1085, 1087 (Mo.App.1939); and Davidson v. Fisher, 258 S.W.2d 297, 301 (Mo.App.1953). This unyielding requirement harks back to the case of Simmons, Garth & Co. v. Carrier, 60 Mo. 581 (1875) and its continuing viability was recently recognized in Boyer Lumber, Inc. v. Blair, 510 S.W.2d 738, 745 (Mo.App.1974). Concededly, the harsh ef-feet of applying this requirement to the point of absurdity has been tempered by the colloquially denominated “every stick” rule which simply means that it is not necessary for a lien seeking materialman to show that “every” lienable item was actually observed going into the targeted structure. Boyer Lumber, Inc. v. Blair, supra at 746; and E. R. Darlington Lumber Co. v. Harris, 107 Mo.App. 148, 80 S.W. 688, 688 (1904). Nevertheless, recognition of the “every stick” rule does not relieve a lien seeking materialman from the obligation of showing that the claimed lienable items went into the structure sought to be impressed with a lien. In both Boyer and Darlington the evidence disclosed that the materials comprising the subject of the liens were actually delivered to the respective construction sites and such, along with the presence of other evidence, was considered sufficient to show that the claimed lienable items went into the appropriate structures.

The evidence, as it must be, will be scrutinized in the light of Murphy v. Carron, supra. In the instant case there was no evidence whatsoever that the claimed lienable items were actually delivered to the Willow Creek construction site. At best the evidence merely disclosed that orders placed by Bomar with plaintiff materialmen which purportedly reflected the claimed lienable items contained notations that the items were earmarked for the Willow Creek project and that plaintiff materialmen’s invoices accompanying shipments to Bomar corresponded with the orders. Although the evidence revealed delivery of the claimed lienable items to the warehouse of Bomar, their location and movement thereafter was swallowed in silence. At the risk of being repetitious, there is no evidence whatsoever that any of the claimed lienable items were actually delivered to the Willow Creek construction site. In the face of this evidentiary hiatus, plaintiff materialmen's principal witness, an ex-officer of Bomar, admitted on cross-examination that Bomar had several other apartment jobs going at the time and it was possible that some of the claimed lienable items had gone into other apartment projects. This same witness testified that one Bill Brown, another employee of Bomar, was responsible for keeping records as to where materials received by Bomar from its suppliers went after being delivered to Bomar’s warehouse. For reasons unknown, Bill Brown was never offered as a witness.

The long and short of the matter is that plaintiff materialmen failed to satisfy the trial court that the claimed lienable materials were ever delivered to the job site, much less that they “actually entered”, “went into” or were “used in” the Willow Creek Apartment complex. Tallman Co. v. Villmer, supra; and Davidson v. Fisher, supra. The “every stick” rule affords no haven of escape for plaintiff materialmen from the evidentiary chasms criss-crossing their case. A fortiori, this court cannot say that the judgment rendered and entered by the trial court lacked substantial evidence to support it, or that it erroneously declared or applied the law, or that it was so against the weight of the evidence as to cause this court to firmly believe that it was wrong. Murphy v. Carrón, supra.

Judgment affirmed.

All concur.


text:
    In re Adoption of Eric T. LeGRANDE. John Paul SAVONA and Debbie Lou Savona, Respondents, v. George Milton LeGRANDE, Jr., Appellant.
    No. KCD 30226.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Rehearing Denied May 1, 1979.
    Application to Transfer Denied June 19, 1979.

      Austin F. Shute, Kansas City, for appellant.
    Louis W. Krings, Kansas City, for respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J. and WASSERSTROM, J.
   PER CURIAM.

Appeal by natural father from decree terminating his parental rights and awarding adoption of his minor son to natural mother and her present husband. Reversed.

Respondents, the natural mother and her present husband, alleged that Appellant had willfully abandoned and willfully neglected his minor son for a period of at least one year immediately prior to the filing of the petition in this proceeding. A hearing was held and the court made findings of fact and conclusions of law. Since the findings and conclusions were upon willful neglect, this opinion is limited to the consideration of that alone and contains no dissertation inclusive of the similarities or differences, whether apparent or subtle, between willful neglect and willful abandonment.

Proceedings in adoption are statutory. See Chapter 453, RSMo 1969. Section 453.-040(4) specifically addresses itself to the matter of consent by a natural parent and prescribes those instances wherein consent is not a prerequisite. The pertinent section reads as follows:

“The consent of the adoption of a child is not required of .
(4) A parent who has for a period of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child or willfully neglected to provide him with proper care and maintenance . . .”

The case herein clearly falls within the language of that statute.

In their efforts to balance the interest of natural parents and the welfare of children, the courts have clearly expressed that willful neglect and willful abandonment mean the intent or mental attitude of the natural parent. Cases hold that “ ‘ . . . the parent’s consent to the adoption is not to be dispensed with upon the ground of his neglect of his child unless it is shown that such neglect was intentional, deliberate, and without just cause or excuse, evincing a settled purpose to forego his parental duties over the period of time which the statute prescribes.’ ” In Re E.C.N., 517 S.W.2d 709 (Mo.App.1974), cited in D_ G_ K_ v. D_ G_ K_, 545 S.W.2d 81 (Mo.App.1976); Adoption of R.A.B. v. R.A.B., 562 S.W.2d 356 (Mo.banc 1978). That the establishment of this intent can, from the parent’s conduct, be determined both before and after the statutory period, see Matter of Adoption of Fuller, 544 S.W.2d 345 (Mo. App.1976).

Each case must be decided upon its own individual circumstances. Such cases, being of an equitable nature, require this court to review both the facts and the law pursuant to Rule 73.01.

Appellant and Respondent Debbie Savo-na, natural parents of the child, were divorced July 25, 1975. The decree provided custody in the mother and ordered Appellant to pay $35.00 per week child support. Appellant was granted reasonable visitation. The mother testified that during and immediately following the divorce proceeding, there was a hostile atmosphere between the parties. She further testified that an attempted reconciliation following the entry of the divorce decree failed. Although ordered by the court to pay a fixed sum of child support, the Appellant failed miserably to comply with the court’s order in regard to the monetary support of his son. There was a contradiction of testimony over the child support payments. Appellant stated his former wife agreed not to enforce the payment for child support if Appellant did not contest the divorce. This was denied by the former wife.

While neither party had the authority to waive or ignore the court order to pay child support, the point raised by this evidence goes to the matter of Appellant’s intent to willfully neglect his child within the meaning of the term.

This court, in no manner, condones the actions, or in this case the failure to act, of Appellant in failing to provide funds for the support of his son, or Appellant’s refusal to comply with the order of the court. If this were the only decisive factor to consider, Appellant’s claim could easily be dispensed with, but the evidence shows that immediately after the receipt of a letter from Respondent’s attorney mentioning the failure to provide support and the intent to proceed with adoption, Appellant directed payment through his attorney of the sum of $100.00 as child support. The parties entered into a long dispute over whether this payment was within the one year or not, but that becomes secondarily important because of further evidence showing continued payment of support for the child subsequent to the filing of the petition. The amount continued to be less than that ordered by the court, but under Matter of Adoption of Fuller, supra, we find that the conduct of the parties both prior and subsequent to the statutory period, are to be considered for purposes of determining intent.

Other evidence shows that on various occasions, the son was taken to the residence of the paternal grandparents. On one of these occasions, the mother took the son, and Appellant was present. On the other visits, Appellant testified he visited with his son and bought him food, toys and clothes. Although the amount of this effort was nominal, it again presents itself for consideration as to the intent or mental attitude of the parent. The mother testified she assumed her former husband visited with the son on the visits to his grandparents’ residence. The testimony of Appellant was not corroborated by other testimony, but neither was it contradicted by Respondents.

The evidence further set forth the conclusion of the Respondents that they felt Appellant was a bad influence on the son. Under questioning, both Respondents concluded that it was best for the boy that the now present husband adopt the boy, although the mother did admit that if a stronger showing had been made by Appellant, he would have certain rights prohibiting her from seeking adoption.

The court is faced with the choice of terminating the parental rights of the natural father as against the claimed best interest of the child by the Respondents. That adoption may not be decreed simply to enhance the moral and temporal welfare of the child, see In Re Adoption of K, 417 S.W.2d 702 (Mo.App.1967). Nothing in the evidence of this case suggests that denial'of the adoption will cause this child to suffer any adversity as to its well being. He will continue to live with his natural mother, being cared for as to his needs and comfort.

Although Appellant has failed miserably to meet his responsibilities as to the monetary support of his son and it will be to the best interest of the boy that the mother pursue those means through the proper civil and criminal authorities to enforce the judgment for support, we find the evidence in this case insufficient to meet the compelling requirements to establish mental attitude or intent by Appellant “ ‘ . evincing a settled purpose to forego his parental duties . . .’” In Re E.C.N., supra.

Judgment reversed.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Glen David TRASK, Appellant.
    No. 38836.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 10, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court May 18, 1979.
    Application to Transfer Denied June 19, 1979.

      Melvin G. Franke, Public Defender, Gary L. Gardner, Asst. Public Defender, Union, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Robert Presson, Asst. Attys. Gen., Jefferson City, Daniel M. Buescher, Pros. Atty., Union, for respondent.
   DOWD, Presiding Judge.

Glen David Trask was convicted by the Circuit Court of Franklin County of the manslaughter of an eight month old child and sentenced to six years imprisonment.

Appellant challenges the sufficiency of the evidence supporting his conviction as well as the trial court’s findings concerning his defense of mental disease or defect and the admissibility of statements allegedly made by appellant to the police prior to his arrest.

As appellant has raised the issue of the sufficiency of the evidence by challenging the trial court’s adverse ruling on his motion for judgment of acquittal, we shall consider this point first. The scope of review to be applied to this issue is one in which we regard as true all the evidence and inferences therefrom favorable to the State and disregard all evidence and inferences to the contrary. State v. Nichelson, 546 S.W.2d 539, 543 (Mo.App.1977). Since this is a jury waived criminal case, the trial court’s findings are deemed to have the same weight as a jury’s verdict. Accordingly, the judgment shall be affirmed if supported by substantial evidence. State v. Sanderson, 528 S.W.2d 527, 529 (Mo.App. 1975).

The evidence disclosed that the appellant was romantically involved with the victim’s mother, and was babysitting with the child in order to become better acquainted with her. While in the custody of the appellant, the child sustained multiple injuries which resulted in her death on July 29,1975. The autopsy revealed that the victim had suffered bruises and burns on her face and legs and died of an intercranial hemorrhage.

Appellant explained the child’s final injury as resulting from a fall she sustained after she wiggled from his arms and landed on a concrete walk. Since the child was breathing irregularly and vomiting following her fall, the appellant said he held her by her feet and applied pressure to her stomach to stop the vomiting. The victim was brought to a hospital and then transferred to St. Louis Children’s Hospital where she died.

We are of the opinion that the judgment is supported by substantial evidence. Five of the six doctors who testified at the trial opined that the victim’s injuries could not have been sustained in the manner described by the appellant. The consensus among the medical experts was that the victim’s fatal head injuries were most likely to have been precipitated by blows to the head.

The evidence disclosed that the appellant considered the victim to be spoiled and had told the victim’s mother that the child was the only thing standing between them. The victim’s grandmother testified that bruises first appeared on the child during periods in which she was in Trask’s custody. The burns which appeared on the child’s body were explained by Trask as probably having occurred when he spanked her for crying one day. Apparently the appellant was holding a hot spatula which had come in contact with the victim’s body at the time he administered the spanking. The record revealed that the flat metal portion of the spatula was the approximate width of the patches of denuded skin on the victim’s body. The trial court did not err in denying appellant’s motion for judgment of acquittal. Accordingly, this point is ruled against the appellant.

In his second point, appellant contends that the trial court erred in declining to find that the appellant suffered from a mental disease or defect which rendered him unable to appreciate the wrongfulness of his conduct or conform his conduct to that which was lawful on July 29, 1975. We must preface our treatment of this issue by noting that all persons are presumed to be free of mental disease or defect. § 552.030(7) RSMo 1969. This presumption may be overcome by the defendant’s producing substantial evidence to the contrary. State v. King, 526 S.W.2d 58, 59 (Mo.App. 1975).

Dr. Mowrer of the St. Louis State Hospital division of Mental Health reported that she had treated the appellant for symptoms of depression in the Pall of 1975. It was her opinion that Trask did not possess the personality traits of a child abuser. She inferred that the appellant was probably depressed at the time the victim sustained her injuries, but stated it was impossible for her to know the nature of Trask’s mental state at the time of the victim’s death. She concluded by opining that the appellant knew right from wrong and was capable of assisting in his own defense.

Dr. Crane performed the psychiatric testing at the request of the State. His report disclosed that Trask had related that he had never felt crazy and “always thought (he) had it together better than anyone else.” Trask had explained that something inside him had “snapped” when he spanked the victim, but that “he was not out of control and knew what he was doing.” Dr. Crane concluded that the appellant was under stress at the time of the incident due to personal problems, but opined that Trask was not psychotic at the time of the victim’s death. Dr. Crane summarized the test results as indicating “no evidence of psychotic thought content, no evidence of organic central nervous system pathology and no evidence of severe depression.” He agreed with Dr. Mowrer that Trask comprehended the difference between right and wrong and was capable of assisting in his defense.

Dr. Sandall, Assistant Superintendent of St. Louis State Hospital was requested by the defense to personally evaluate the appellant as well as the reports of Doctors Mowrer and Crane. Dr. Sandall agreed that Trask’s personality traits were not those characteristic of a child abuser. She opined that Trask suffered from psychotic depression, which probably existed during July 1975, but acknowledged to have no direct knowledge as to appellant’s state of mind on July 29, 1975.

On the basis of the expert opinions and the facts in the record, the trial court concluded that the appellant comprehended the significance of the crime with which he was charged and tried, and was able to assist in his defense. The court further found that the appellant was not suffering from “any mental abnormality at the time of the crime.”

We are of the opinion that the finding was supported by substantial evidence. The appellant failed to sustain the burden of overcoming the presumption of § 552.-030(7) supra. The medical experts either had no knowledge of appellant’s mental state on July 29, 1975 or concluded that the appellant was not suffering from a mental disease or defect on that date. In such a case, the statutory presumption is not disturbed, and supports the trial court’s finding in this regard. As such, point two is ruled against the appellant.

In his third point relied on appellant contends that statements made by him and recorded and transcribed by the prosecuting attorney’s investigator were not voluntary because appellant was suffering from a psychotic depression and on drugs at the time of the questioning. The trial court heard evidence on the issue of voluntariness and concluded that the surrounding circumstances of the interview were neither coercive nor threatening. The court further found that the appellant’s free will and mental state were unimpaired at the time of the questioning.

In order for the defendant’s statements to be admitted into evidence it is incumbent upon the State to demonstrate voluntariness by a preponderance of the evidence. State v. Olds, 569 S.W.2d 745, 751 (Mo. banc 1978). Statements made while under the influence of alcohol will be excluded as involuntary if the inebriation is of manic proportion. “The standard is whether the statement is reliable and whether there is such a lack of awareness or understanding so that in the rare case where it clearly appears, the defendant was so intoxicated so as to be ‘unable to appreciate the nature and consequences of his statements’.” State v. Heather, 498 S.W.2d 300, 304 (Mo.App.1973).

The State introduced the testimony of investigator Scott who had interviewed the appellant three times prior to his arrest. Appellant was interviewed at his home on July 31, 1975 by Scott, and then questioned at the latter’s office later that day. The third interview occurred at the appellant’s home a few days later. Appellant specifically challenges the admissibility of “statements which he made during the second interview, contending that he wás under the influence of librium at the time and was suffering from depression. The medical testimony revealed that librium and alcohol have similar effects.

Investigator Scott testified that the appellant voluntarily accompanied him to his office for the second interview. The appellant was not physically restrained at any time, and was free to leave when he wished. Despite the fact that the appellant was not under arrest, Officer Scott read appellant his Miranda warnings. After appellant was advised of his rights he explained that he had retained counsel, but wanted to make a statement “to get it off his chest”. Appellant took one librium tablet while in Scott’s presence. Scott testified that appellant did not appear to be intoxicated, suffered no ascertainable effect from the librium, and was responsive and alert to his surroundings.

Prosecuting Attorney Daniel M. Buescher, who observed the interview at the request of Scott, testified that the appellant did not appear to be intoxicated. Appellant was said to have been alert, spoke without slurring his words, and admitted to having lied in statements previously made to the investigator.

The trial court did not err in finding that the appellant was capable of appreciating the nature and effects of his statements. Appellant was neither under arrest nor physically restrained. He was not induced to speak by promises of leniency. He offered his explanation of the occurrence although he was admittedly mindful of the fact that his attorney had advised against it. Although the appellant appeared to be tense, he was heard to say that he understood his rights. There is not evidence in the record which warrants the inference that appellant suffered from a mania which vitiated the voluntariness of his statements. Point three is ruled against the appellant.

In his fourth point appellant contends the trial court erred in admitting statements made by the appellant to investigator Scott which were neither tape recorded nor transcribed but testified to at the preliminary hearing by Scott, because the State allegedly did not comply with Rule 25.32(A)(2) and did not disclose said statements to the appellant.

At the trial, the State claimed to have furnished the defense with the tape recording of Scott’s interview with the appellant and a transcript of same. The assistant prosecutor’s file indicated that the defense had been advised of statements made by the appellant during periods in which the appellant had requested the recorder to be turned off. Appellant’s non recorded statements were testified to at the preliminary hearing by Officer Scott. The defense claimed to have never received a copy of appellant’s non recorded statements and contended that no distinction between recorded and non recorded statements was drawn at the preliminary hearing. The defense complained that the State’s non-compliance with the discovery rules adversely affected their strategy regarding cross examination of Scott. The court resolved the problem by allowing the State to go forward with all statements made by the appellant to Scott except those which were not recorded and not revealed at the preliminary hearing.

We cannot say that the trial court’s treatment of this issue amounted to an abuse of discretion. The criminal discovery rules were structured to preclude surprise and afford the accused the information with which to formulate a defense and meet opposing evidence. State v. Stapleton, 539 S.W.2d 655 (Mo.App.1976).

In the present case the defense attorney stated that the prosecution had been cooperative and had offered the State’s file for copying purposes. On October 22, 1976 the defense was advised that a part of Officer Scott’s testimony at the preliminary hearing stemmed from statements made by the appellant during the period in which the tape recorder had been turned off. The trial began on October 27, 1976. The trial court’s action in limiting the evidence of the statements to those recorded statements on the tape and unrecorded statements testified to at the preliminary hearing obviated the inurement of any possible unfairness to the appellant. Defense counsel was present at the preliminary hearing and was aware of the content of Scott’s testimony. Furthermore, he was advised of the existence of the unrecorded statements five days pri- or to trial. In addition, as the majority of the content of the unrecorded statements was cumulative of other evidence introduced at trial, we cannot say that any prejudice resulted to the defense. Point four is ruled against the appellant.

. Judgment affirmed.

CRIST, J., and ALDEN A. STOCKARD, Special Judge, concur.