text:
    Bill Douglas DORSEY, Appellant, v. STATE of Missouri, Respondent.
    No. 39910.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 4, 1979.
    Devereaux & Stokes, Michael D. Stokes, St. Louis, for appellant.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Movant’s appeal from the denial of his Rule 27.26 motion alleges the trial court erred in failing to hold an evidentiary hearing and denying relief under the motion. We affirm.

Movant’s motion stems from his pleas of guilty to two charges of second degree burglary and stealing and a separate charge of stealing over I50. He was sentenced to ten years imprisonment on each burglary charge and five years on each stealing charge, with all sentences concurrent. In his Rule 27.26 motion, movant alleged three bases for relief: (1) the disparity in length of sentences imposed on him as compared to his co-defendants; (2) his counsel’s failure to determine movant’s competence to commit the crimes due to the influence of drugs; and (3) the reliance of movant on his counsel’s assurance that if he were to plead guilty and deny any “deals”, his sentence would be less than ten years. Based on the record before it, including the pleas of guilty, the trial court denied movant’s motion without hearing.

On appeal, movant contends that an evi-dentiary hearing is required to test the vol-untariness of his guilty plea. But under Rule 27.26(e) a hearing is not required when, as here, “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”

Movant’s allegation of disparity in sentencing fails to allege facts which, if true, would entitle him to relief. Movant’s argument is that there had been a denial of due process and equal protection by imposition of a longer sentence than that received by his co-defendants. A sentence which is within the limits prescribed by law cannot provide the basis for a complaint of excessive punishment. Turnbough v. State, 574 S.W.2d 400 (Mo. banc 1978). Since mov-ant’s sentences were within the range prescribed by §§ 560.095, RSMo 1969 and 560.-161(2), RSMo Supp. 1975, no ground for relief was stated.

The next factual allegation is lack of mental capacity to commit the offense charged. Movant claims that he told his attorney that he could not recall committing the crimes because of his use of drugs. The testimony at the guilty plea proceeding reveals movant had been addicted to drugs and was undergoing methadone treatment at the time of his arrest. Movant claims that he was denied effective assistance of counsel by his attorney’s failure to pursue this defense, and, therefore, his plea was involuntarily entered. Again, movant has failed to cite facts which if true would entitle him to relief. Drug abuse, absent a psychosis, is not a defense under the statute defining mental disease or defect. The existence of a psychosis is the determinative factor. § 552.010, RSMo 1969; Boyer v. State, 527 S.W.2d 432 (Mo.App.1975). In the absence of some suggestion of mental instability, there is no duty on counsel to initiate an investigation of the mental condition of the accused. Jones v. State, 564 S.W.2d 933 (Mo.App.1978). There was no evidence or factual allegations of a psychosis either at the guilty plea hearing or in the 27.26 motion. Further, in the plea proceedings movant specifically rejected that he had ever been under psychiatric care or had the need for such in the present or that he was currently under the influence of drugs.

Movant’s final factual allegation was that he was assured by his counsel that he would receive less than ten years imprisonment for his plea of guilty and that he was instructed not to inform the court of any bargain. The record of the guilty plea proceedings directly refutes movant’s allegation that any deals were struck. The court engaged in extensive examination of the movant concerning the plea bargaining and offered him full opportunity to withdraw his pleas. The record clearly establishes that the court through straightforward query disabused movant of any reasonable belief he possibly could have entertained of a bargain for a lesser sentence. The query also conclusively rebuts movant’s claim that he had been told to falsely affirm his response to the court’s inquiries. Johnson v. State, 579 S.W.2d 802 (Mo.App.1979); Giggar v. State, 547 S.W.2d 870 (Mo.App.1977). Thus, Burgin v. State, 522 S.W.2d 159 (Mo.App.1975), upon which mov-ant places great reliance, offers no solace for his cause.

The trial court’s finding that movant is not entitled to relief was fully supported by the record; there was no need for an evidentiary hearing. Wilson v. State, 582 S.W.2d 725 (Mo.App.1979).

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.

      .The plea to one charge of burglary second and stealing was accepted under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . In effect at the time the offenses were committed and movant sentenced after guilty pleas.

      . In effect at the time the offenses were committed and movant sentenced after guilty pleas.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Clyde KANE, Defendant-Appellant.
    No. 40234.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 4, 1979.

      Robert E. Ahrens, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Gregory W. Schroeder, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Defendant, a medical doctor, was convicted by a jury of two counts of illegal preparation of a prescription for Schedule III Controlled Substance, benzphetamine, and sentenced to pay a fine of $1,000.00 on each count. He appeals from the judgment entered upon the jury verdict.

For reversal defendant contends that the court should have sustained his motion for directed verdict because the State did not plead or prove that defendant prepared the prescription with a lack of good faith or outside the course of his practice. He also contends that two pharmacologists, called by the State, were not qualified to give opinion evidence with respect to accepted medical procedures and methods. We affirm.

Count I of the indictment charges that:

“CLYDE E. KANE on the 11th day of October, one thousand nine hundred and seventy-six at the City of St. Louis aforesaid, did feloniously, unlawfully and willfully issue a prescription to OSCAR MONTGOMERY, for a Schedule III Controlled Substance, BENZPHETAMINE, under the authority of his profession as a licensed physician for the State of Missouri, without the benefit of conducting an investigation into the medical history of the said OSCAR MONTGOMERY or performing a medical examination of the said OSCAR MONTGOMERY to determine whether or not said prescription was necessary; and thereafter, the said OSCAR MONTGOMERY did present the prescription to a licensed pharmacist, who then and there did fill the prescription as prepared by the said CLYDE E. KANE; contrary to the form of the Statute in such case made and provided and against the peace and dignity of the State.”

Count II of the indictment is the same as Count I except that the charge refers to a prescription made to Gregory Hawkins.

. The facts viewed most favorably to the State warrant a finding that Detectives Oscar Montgomery and Gregory Hawkins went to the offices of defendant; they signed a register and awaited their turn to see Dr. Kane. Detective Montgomery at the time was suffering from high blood pressure. Detective Hawkins was taking medication for an allergy. After about two hours and forty-five minutes Detective Montgomery was called into Dr. Kane’s private office. He asked defendant for a prescription for Didrex, the trade name for benzphetamine, a Schedule III Controlled Substance. The defendant asked his name and address and wrote out the prescription for which he was paid $5.00 by Detective Montgomery. After Detective Montgomery left, Detective Hawkins went into the office and told defendant he wanted a prescription for Eskatrol. Defendant told him he was not doing Eskatrol that day but would write him one for Didrex. Defendant wrote the prescription for which he was paid $5.00. The doctor’s regular charge at the time was $2.00 per visit. Neither Detectives Montgomery nor Hawkins had been seen by defendant before. The doctor took no medical history, did not make any type of physical examination of the detectives. Defendant did not ask the purpose of the prescriptions and the detectives did not give defendant any reason. The prescriptions were filled at a pharmacy.

Benzphetamine is a stimulant and would tend to increase the blood pressure. Persons who suffer high blood pressure should not generally receive this medication. As a bare minimum a physician should not prescribe benzphetamine without taking the patient’s blood pressure. The physician should also determine whether the patient has any allergies because some persons have allergic reactions to drugs such as benzphe-tamine.

Defendant’s first point relied on reads as follows:

“The Court erred in overruling the defendant’s Motion for a Directed Verdict at the close of all the evidence for the reason that the State did not plead or prove that the prescriptions were issued by the defendant with a lack of good faith or outside the scope of defendant’s professional practice as set out in Missouri Revised Statutes, §§ 195.070 and 195.-240.”

A determination of the issues raised under this point requires a review of the applicable statutory provisions.

The statute under which defendant was convicted, § 195.240, provides in part:

“The possession, sale, distribution, or transfer of any controlled substance listed in Schedules III, IV, or V, or any apparatus, device or instrument for the unauthorized use of such substances is unlawful, except in the usual course of business or practice, or in the performance of their official duties by the following persons:
“(1) Persons licensed under the provisions of chapters 330, 332, 334, 335, 338, and 340, RSMo;”

Defendant is a person licensed to practice under the provisions of Chapter 334.

Also applicable is § 195.070 — 1. providing:

“1. A physician, podiatrist or a dentist, in good faith and in the course of his professional practice only, may prescribe, administer, and dispense controlled substances or he may cause the same to be administered by a nurse or intern under, his direction and supervision.”

Determinative of defendant’s contentions on the present issues is § 195.180 that reads:

“In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this law, it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this law, and the burden of proof of any such exception, excuse, proviso or exemption, shall be upon the defendant. (R.S.1939 § 9849)”

The only issue raised as to the validity of the indictment is that it did not charge that defendant did not come within the exceptions or exemptions of the law. The only challenge to the proof was that the State failed to prove that defendant did not come within such exceptions or exemptions. The burden was upon the defendant to bring himself within any exceptions or exemptions to the law and it was not necessary that the State plead or prove that defendant did not come within any exception, excuse or exemption. § 195.180; State v. Page, 395 S.W.2d 146 (Mo.1965). The contentions of defendant in this regard are without merit.

It is obvious, however, that the indictment pleads facts which remove defendant from the protection of the exceptions and exemptions under the law. A doctor who prescribes a potentially dangerous drug without first making some attempt to determine the physical condition or health needs of the person for whom he writes the prescription is not acting in good faith and in the usual course of his practice. There is no patient physician relationship. See White v. United States, 399 F.2d 813 (8th C.C.A.1968). The indictment here alleges that defendant, a doctor, prescribed a Schedule III Controlled Substance without first investigating the medical history, or performing a physical examination to determine the need for the prescription. In like manner the evidence was sufficient to warrant the jury in finding that the allegations of the indictment were established.

Defendant next complains that the court erred in admitting into evidence the opinion evidence of Drs. Robert M. Burton and Leonard Naeger, pharmacologists, because the nature of their testimony was exclusively within the realm of the doctor of medicine.

Dr. Burton is Associate Professor of Pharmacology at Washington University School of Medicine. He has been with the medical school for twenty years. He instructs medical students in the use of drugs, the relationship between the doctor and patient in this regard, and the use of physical examination and history in reaching an adequate diagnosis before prescribing. He also carries out basic research on drugs. He has a Bachelor’s degree from the University of Maryland, his Masters from Georgetown University and his Doctor of Philosophy from John Hopkins University.

Dr. Naeger is Associate Professor of Pharmacology at St. Louis College of Pharmacy. He has a Bachelor’s, Master’s and Ph.D. in pharmacology. His course of study is designed to teach students what drugs should be used under various circumstances and the types of problems they would encounter and “what contraindications there might be to various types of therapeutic regimens.”

Pharmacology was defined as the study of the indications and mechanisms of action and use of drugs and their interaction.

These witnesses testified with respect to the properties of benzphetamine and its action upon the central nervous system and the necessity of obtaining sufficient information with respect to the patient before prescribing drugs, particularly benzpheta-mine. They testified that at a minimum a patient’s blood pressure should be taken before he is given benzphetamine.

A witness is qualified to give his opinion as an expert when “by reason of education or specialized experience he possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or drawing correct conclusions.” Shelby County R-IV School District v. Herman, 392 S.W.2d 609, 616 (Mo.1965).

Whether a person has the qualifications to express an opinion is within the sound discretion of the trial court and is reviewable only for abuse of discretion. State v. Stevens, 467 S.W.2d 10, 23 (Mo.1971).

This very issue was considered under similar circumstances, by U.S. Circuit Court of Appeals for the 8th Circuit in White v. United States, 399 F.2d 813 (1968). Dr. Burton was also the witness in that case. We concur with the reasoning of the court in that case when at page 820 it said:

“It would seem that one whose area of expertise is the study of the beneficial and harmful effects of drugs within the human body is in an especially advantageous position to testify as to the relationship which should exist between a doctor and patient, or what a doctor should know about his patient before prescribing a particular drug. He, as a student of drugs, can evaluate their potential effect in the human body. His testimony is along a line not generally known to laymen and jurors. Consequently, Dr. Burton is a proper expert and his testimony was within the range of his expertise.”

What was said of Dr. Burton and his testimony is also applicable to Dr. Naeger and his testimony. We find that the trial court did not abuse its discretion.

The judgment of the trial court is affirmed.

KELLY, P. J., and SMITH, J., concur.


author: DOWD, Judge.

text:
    STATE of Missouri, Respondent, v. Nathaniel JOHNSON, Appellant.
    No. 40835.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 4, 1979.
    Robert Babione, Public Defender, Nick A. Zotos, Asst. Public Defender, St. Louis, for appellant.
    George Peach, Circuit Atty., St. Louis, John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   DOWD, Judge.

A jury in the Circuit Court of the City of St. Louis convicted the appellant, Nathaniel Johnson, of tampering with a motor vehicle without the permission of the owner (§ 560.175 RSMo 1969) and he was sentenced by the court under the Second Offender act, (§ 556.280) to a term of five years in prison. Johnson appeals.

At the close of the State’s case, the appellant filed a motion for acquittal which was denied. His only point on appeal is that the State’s evidence was insufficient to support a finding of guilt and accordingly the court erred in not sustaining his motion. Appellant offered no evidence in his defense.

When considering a claim of insufficient evidence, this court considers only the evidence favorable to the verdict and any favorable inferences which may be drawn therefrom and evidence to the contrary is rejected. State v. Guelker, 548 S.W.2d 521, 525 (Mo. banc 1977), cert. denied 431 U.S. 941, 97 S.Ct. 2658, 53 L.Ed.2d 260.

The evidence in the present case is as follows. On December 30,1977, at approximately 9:45 p.m., Willie Crymes went out of his house to warm up his car in order to drive his wife to work. After starting the car, he took the keys out of the ignition and went back into his house, leaving the engine running. Two or three minutes later he went back outside and discovered his car missing.

He immediately reported the theft to the police. Another car was apparently parked in front of Crymes’ house which had not been there previously. The police, upon running a license check on this vehicle, discovered that the car was registered to the appellant, Nathaniel Johnson. This information was transmitted on the police radio.

Meanwhile, the police received a report of two men tampering with an automobile in the fifty-nine hundred block of Harney Street in St. Louis. Officer Michael Layton was assigned to investigate. At 5959 Har-ney, Officer Layton observed a 1971 Buick LeSabre matching the description of the car just reported stolen. The trunk and hood lids were open and the two rear tires and wheels were missing. When he approached the car he saw two men reaching under the car’s hood on the passenger side. One man looked around the side of the hood and ducked back behind it. The other man looked over the top of the hood at the police car and then both men began to run from the car. The first man ran across the street alongside a house at 5958 Harney. The second man, later identified as appellant, ran up the hill in front of 5959 Harney. Appellant then slowed to a walk when Officer Layton got out of his car to pursue him. When apprehended he gave his name as Nathaniel Johnson. Officer Layton never lost sight of appellant Johnson before arresting him.

The first man was arrested at his home at 5958 Harney. One tire and wheel were found under the front porch of that residence. Two other tires and wheels as well as a jack were found in the back yard.

Officer Layton went back to the car and inspected the area under the hood where the two men had been “reaching”. He discovered that the car’s battery was located in that area. One of the bolts on the battery had been loosened.

Appellant contends that the evidence was insufficient to support a conviction of tampering with Mr. Crymes’ automobile arguing there is no direct evidence that he physically tampered with the car. Neither, he claims, is there evidence to connect him with the first suspect at whose home the tires were found.

The appellant primarily relies upon the case of State v. Castaldi, 386 S.W.2d 392, 395 (Mo.1965) in which a conviction for tampering was reversed for insufficient evidence. In that case, the defendant had been seen standing at the scene while a car was being cut up with an acetylene torch. He left the scene with one of the men doing the cutting after having been challenged by police. In Castaldi, the Missouri Supreme Court held that mere presence at the scene of the crime, opportunity to commit the crime, and the appearance of flight, in themselves, were not sufficient to support the conviction.

While this is true, it is also true that “presence at the scene of a crime, considered with other evidence of affirmative participation, will support a conviction.” State v. Merritt, 542 S.W.2d 14, 16 (Mo.App.1976). Provided there is evidence of affirmative participation, the trier of facts may consider presence at and flight from the scene of the crime as evidence which implies guilt. State v. Simmons, 494 S.W.2d 302, 305 (Mo.1973).

An example of presence at and flight from the scene coupled with evidence of affirmative participation in the crime can be seen in State v. Staples, 490 S.W.2d 293 (Mo.App.1973) in which a conviction for tampering with a motor vehicle was affirmed. In that case, when police approached the ear, the defendant came out from underneath the dashboard, got out on the passenger side and ran away. The police captured the defendant without ever losing sight of him. A two-way radio was missing from the area where the defendant had been in the car and screws were missing from the bracket which had held the radio.

The present case is analogous to Staples. When Officer Layton arrived at the scene, Mr. Crymes’ car was apparently being stripped down. Layton saw the appellant and another man reaching under the front hood. When the appellant saw the police car, he began to run. Although he slowed to a walk when Layton got out of the police ear, he continued to walk from the scene. An inspection of the area appellant had been reaching showed the loosened battery bolts.

All of this evidence together, consistently supports the State’s theory that appellant tampered with Mr. Crymes’ car. Appellant’s act of reaching under the hood around the loosened bolts indicates his affirmative participation in the crime. Taken with his presence at and flight from the scene, we find ample evidence to support the jury’s guilty verdict.

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.


author: PER CURIAM:

text:
    David W. BECK and Wilma J. Beck, Plaintiffs-Respondents, v. HOEL-STEFFEN CONSTRUCTION COMPANY, a corporation, Defendant-Appellant.
    No. 11055.
    Missouri Court of Appeals, Southern District, Division I.
    Sept. 5, 1979.
    Joe W. Collins, Stockton, for plaintiffs-respondents.
    Joseph A. Bohrer, Neale, Newman, Bradshaw & Freeman, Springfield, for defendant-appellant.
   PER CURIAM:

Plaintiffs brought an action for specific performance for the conveyance of certain real property in Cedar County, Missouri. After hearing, the trial judge entered a “judgment and decree” in plaintiffs’ favor if plaintiffs, within ten days of the order, pay the balance of the purchase price into court. This order also required defendant, within ten days from the deposit, to execute a deed to the property and to pay into court for plaintiffs, a pro rata part of the property taxes. The judgment and decree further provided that: “Upon plaintiffs complying with the terms of this decree plaintiffs shall be the owners of the real estate herein described and upon defendant complying therewith, defendant shall be entitled to take down the cash consideration hereby ordered put up by plaintiffs.” The transcript does not disclose whether any of the conditions were met and contains no further orders of the court.

Defendant appealed from that order. We are obligated to determine if this is a final judgment and if not, we do not have jurisdiction to proceed. Frey v. Gabel, 574 S.W.2d 38, 39 (Mo.App.1978).

The purported judgment conditioned the rights of the parties upon compliance with certain provisions therein stated. Thus, it was not a final judgment. If plaintiffs did not comply, then they do not receive the relief sought. Orders which do not become operative unless and until the occurrence of conditions are not final for the purposes of appeal. Phelps County Bank v. Modern Security Life Insurance Co., 586 S.W.2d 746 (Mo.App.1979); Ravenscroft v. Ravenscroft, 585 S.W.2d 270 (Mo.App.1979); Wallace v. Hankins, 541 S.W.2d 82 (Mo.App.1976).

This cause is remanded for issuance of a final judgment dependent upon the compliance of the conditions imposed by the court’s order above referred to. Upon entry of a final judgment, the aggrieved party may then wish to appeal.

All concur.


author: MAUS, Judge.

text:
    Walter Emel BARTON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 11118.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 6, 1979.
    Thomas J. O’Neil, Lebanon, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   MAUS, Judge.

By his motion under V.A.M.R. Crim. Rule 27.26 appellant, Walter Emel Barton, seeks to set aside a sentence of 20 years for assault with intent to kill with malice aforethought committed upon the female operator of a service station in the vicinity of Camdenton. The sentence was imposed as the result of a jury trial and a verdict of guilty. While the record of the background of the case is sketchy (the trial transcript was not introduced into evidence and is not before this court) the victim gave a positive description of the appellant, including the fact he was missing two front teeth. She made an unequivocal in-court identification. While in custody the defendant made a written and then a verbal tape recorded confession. Upon a motion to suppress, the tape recorded confession, as well as a money bag found at the plant hereafter referred to, were excluded from the evidence. Trial counsel for the appellant were employed by appellant’s fiancee and her mother. The appellant filed a motion for a new trial and upon the same being overruled, a notice of appeal. Subsequent to receiving advice and alleged information from fellow inmates at the penitentiary, he withdrew his appeal in favor of a motion under Rule 27.26.

While his motion alleged additional grounds, the appellant has preserved a single point on appeal. That is, he was denied effective representation by counsel by reason of their failure to exercise the customary skills and diligence of reasonably competent counsel because they failed to locate witnesses to support appellant’s defense.

When the amended motion was drafted, by this charge appellant was no doubt referring to witnesses to a narrowly avoided automobile collision as well as the “plant witness” referred to later in this opinion. In his testimony appellant related that when he was driving past the station in question, he almost had a collision with a red Falcon automobile coming from the station. This automobile followed him through Camdenton to the point where he turned from the highway to go to the plant where his fiancee worked. When he had straightened up his automobile, he turned around and two people in the Falcon waved at him. Although he talked with counsel seven times before trial, appellant did not tell them of this incident. By sheerest of coincidence, at the penitentiary the appellant encountered the two persons who had waved at him. The driver of the Falcon testified at the 27.26 hearing. He generally confirmed the near collision and following events. In addition, he related that when he was leaving the station a Kansas City acquaintance pulled in behind him. Later in Kansas City this acquaintance explained to the witness that he got the money for a party he sponsored “at the gas station”. This witness didn’t tell appellant’s 27.26 counsel of this incriminating alleged statement until the day of the hearing because he didn’t think it was important. Upon the advice of his 27.26 counsel who interviewed the Falcon passenger who was in the courtroom, the appellant elected not to call that passenger as a witness. Without reciting further details, the record clearly substantiates the determination of the trial court that the testimony of the Falcon driver was an “absolute concoction”. In his brief, appellant only obliquely complains that his trial counsel did not spend enough time with him to “get out of him” information concerning the Falcon witnesses. This contention is not supported by the record and is denied.

Appellant testified that he drove into the parking lot of the plant at approximately 7:00 p. m. After he parked he saw a man come from the plant and walk toward a white pickup truck and a white automobile. There was another automobile parked between appellant and the route of this man. Appellant waved, and the man nodded and walked on. The man was described as a young man, about appellant’s height with long, light brown hair, wearing a shirt (no coat) and blue jeans. It should be noted the date was February 4, 1976, and the record reveals it was cold and windy. Appellant’s presence at the plant at 7:00 p. m. would have supported his defense.

Appellant told trial counsel of this possible witness. Within a few days after employment, one of his counsel went to the plant at shift change time. He interviewed employees but was unable to find anyone who knew of a man that met the description of this witness. Counsel told appellant of this experience. The appellant suggested that he get his fiancee to help locate the witness. Counsel discussed the witness with the fiancee and she agreed to try and locate him. Later she and her mother reported to counsel they thought they knew who he was, but he was on drugs, they were afraid to approach him and they felt he would be of no benefit to the appellant. The fiancee also reported this to the appellant. He asked that she find out his name and tell him or his counsel. In view of the trial court’s findings, the fiancee’s testimony that she did not undertake to locate the witness must be disregarded. In her testimony she said she knew the employees at the plant and knew that the alleged witness was important to the appellant’s defense. But, as she testified at the 27.26 hearing referring to the appellant, “Somebody might have seen him. I don’t know who”. Apparently, appellant’s position is based upon a question posed to one of his trial counsel who did not go to the plant and his response thereto. The question was, if the trial counsel had gone to the plant was it “possible” that he “might have” located the witness. The response was, “anything’s possible”.

There is no question but what the defendant was entitled to adequate representation by counsel. Nor is there any question but what in most cases adequate representation includes investigation by counsel. Jones v. State, 491 S.W.2d 233 (Mo.1973). However, “all that is required is investigation that is adequate under the circumstances of each particular case”. Pickens v. State, 549 S.W.2d 910, 912 (Mo.App.1977).

As determined by the trial court, counsel made a reasonable personal effort to locate the alleged witness. That fulfilled their responsibility. State v. Woolbright, 449 S.W.2d 602 (Mo.1970); Brown v. State, 574 S.W.2d 501 (Mo.App.1978). In addition, both counsel and the appellant enlisted the aid of his fiancee to locate the alleged witness. Counsel were entitled to at least partially rely on her efforts. State v. Woolbright, supra; Pickens v. State, supra. It should be noted that at the time of the 27.26 hearing the fiancee was still employed at the plant. Appellant produced no further information about the alleged witness or any attempt to locate him. Counsel were not required “to follow a will-o-the-wisp”. Monteer v. State, 506 S.W.2d 25, 28 (Mo.App.1974). For additional cases involving the adequacy of counsel in locating witnesses see: McNamara v. State, 502 S.W.2d 306 (Mo.1973); Colthorp v. State, 466 S.W.2d 689 (Mo.1971); Jackson v. State, 465 S.W.2d 642 (Mo.1971); Aikens v. State, 549 S.W.2d 117 (Mo.App.1977); Jackson v. State, 540 S.W.2d 616 (Mo.App.1976).

“[T]he fixing of a standard by which effectiveness of counsel can be measured has been very difficult.” Seales v. State, 580 S.W.2d 733 (Mo. banc 1979). The standard has been defined as “ ‘whether his actions or lack thereof made the trial a farce or a mockery of justice’ ” or “ ‘circumstances . demonstrate that which amounts to a lawyer’s deliberate abdication of his ethical duty to his client’ ” or “whether the. accused ‘was denied a fair trial’ ”. Seales v. State, supra, p. 736. In that prospective opinion filed April 25, 1979, our Supreme Court adopted the standard that inadequate representation is failure “to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances”.

The trial court found that counsel adequately and properly represented the appellant. The burden of proof was upon appellant to establish otherwise. Rule 27.-26(f). Measured by any standard, he failed to do so. The judgment of the trial court is affirmed.

All concur.

      . The trial transcript is not necessary to the disposition of this case. McNamara v. State, 502 S.W.2d 306 (Mo.1973).


author: TITUS, Presiding Judge.

text:
    Steven Dale DAVIS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 11043.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 6, 1979.
    Robert H. Handley, Springfield, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Marjorie Wholey Haines, Steven D. Steinhilber, Asst. Attys. Gen., Jefferson City, for respondent.
   TITUS, Presiding Judge.

As was the first such motion filed August 1, 1977, movant’s second Rule 27.26, V.A. M.R., motion filed April 15, 1978, was overruled by the Circuit Court of Greene County without an evidentiary hearing and without appointment of counsel. In both instances, the court filed written “Court’s Findings of Facts and Conclusions of Law and Judgment.” Movant did not appeal from the denial of his first motion as he has done relative to denial of his second motion.

The following are pertinent parts of the two motions. Roman numeral [I] indicates answers given in the first or August 1, 1977, motion; Roman numeral [II] indicates answers given in the second or April 15, 1978, motion.

“3. The case number and the offenses for which sentence was imposed:

[I] 2nd Degree Murder Grand Stealing

[II] Grand Stealing 2nd Degree Murder

4. The date upon which sentence was imposed and the terms of the sentence:

[I] June 13,1977, 15 years

June 14,1977, 2 years

[II] June 13, 1977 — 2 years, 15 years

5. Cheek whether a finding of guilty was made:

[I] (a) After a plea of guilty — on the murder

(b)After a plea of not guilty — on the grand stealing

[II] (a) After a plea of guilty X — 2nd degree murder

(b) After a plea of not guilty X — grand stealing

6. Did you appeal from the judgment of conviction?

[I] No

[II] No

8. State concisely all the grounds known to you for vacating, setting aside or correcting your conviction and sentence:

[I] (a) Inadaquit Council (sic).

[II] (a) Public Defender did not interview vital and essential witnesses for the defense — Leroy Brown and Henry Lee. Public Defender did not interview state witnesses to prepare the defense. Public Defendant (sic) talked to movant only twice for total of 30 minutes. This was ineffective counsel.

9. State concisely and in the same order the facts which support each of the grounds set out in (8), and the names and addresses of the witnesses or other evidence upon which you intend to rely to prove such facts:

[I] (a) Movant feels that he was forced into intering (sic) a plea of guilty for the reason that the state appointed council (sic) told him that if he did not accept the deal from the prosecuting attorney (15 yrs) that he would proably (sic) get a (Life Sentence) if he went to a Jury Trial which he, like every other citizen of the United States is intitled (sic).

[II] (a) Movant, Leroy Brown, Henry Lee.

12. Has any ground set forth in (8) been previously presented to this or any other Court, state or federal, in any petition, motion or application which you have filed?

[I] No

[II] No

14. If you have filed prior proceedings in any state or federal court involving this same sentence but did not raise therein one or more of the grounds you now list in (8), state which were not raised in the earlier proceedings and why they were not raised in those proceedings:

[I] (a) Inadaquit (sic) Counsel, becasuse (sic) it did not pertain to my councel (sic). The incident, violated my Civil Rights.

[II] (a) These (sic) issue of ineffective counsel was not raised. A ‘jailhouse lawyer’ prepared the prior 27.26 motion and movant was not familiar with law and did not know about the ineffective counsel issue at time of the prior 27.26 motion.

15. Were you represented by an attorney at any time during the course of:

(a) your preliminary hearing? [I] yes [II] yes

(b) your arraignment and plea? [I] yes [II] yes

(c) your trial, if any? [I] No trial [II] yes

(d) your sentencing? [I] yes [II] yes

(e) your appeal, if any, from the judgment of conviction or the imposition of sentence?

[I] No appeal, at this time. [II] No.

(f) preparation, presentation or consideration of any petitions, motions or applications with respect to this conviction, which you filed?

[I] No [II] No”.

From reading the two Rule 27.26 motions, supra, it is unclear as to whether movant’s concern was with the murder case, the stealing case or both. However, movant’s brief in this appeal makes it clear that his two Rule 27.26 motions pertain only to the second degree murder charge to which he pleaded guilty.

Upon this appeal, movant’s two points relied on read as follows:

“I. The lower court erred in not appointing an attorney to represent defendant/appellant when he filed his original 27.26 motion. A. Defendant/appellant filed his original 27.26 motion alleging that his guilty plea had not been voluntarily entered, which, though inartfully pleaded, presented an issue of fact. B. Under Rule 27.26(h) lower courts are required to appoint counsel for an indigent defendant if his motion presents an issue of fact. (Our emphasis).
II. The lower court erred when it held that the grounds stated by defendant/appellant, if new, could have been raised in the prior motion.” '

As to point I: It is certain that movant is complaining of alleged trial court error in failing to appoint counsel for him on his original or first Rule 27.26 motion. No appeal was taken from the denial of that motion. An appeal from denial of a separate and second Rule 27.26 motion is not the proper vehicle to employ in complaining of averred trial court error in another action which has terminated and become unviable for lack of an appeal. Hamilton v. State, 548 S.W.2d 267, 268[2] (Mo.App.1977). Moreover, no issue was presented and no claim was made in the second Rule 27.26 motion regarding the failure of the court nisi to appoint counsel to represent movant in his first motion. A ground for relief not contained in the Rule 27.26 motion may not be raised for the first time on appeal. Movant’s first point relied on is denied.

As to point II: In part, Rule 84.-04(d) requires that “[t]he points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” Simply stating, as done in point II, what the alleged error is said to be without also pointing out “wherein and why” the action or ruling of the court is said to be erroneous does not satisfy the mandatory requirements of the rule nor preserve anything for appellate review. “Wherein and why” the court may have erred in its holding may be ascertained only by resorting to the argument portion of the brief which is something we are not required to do. Davis v. State, 573 S.W.2d 736, 738[3] (Mo.App.1978). Nevertheless, as can be seen by the answers in paragraph 8 of both motions, supra, movant summarily charged “Inadequit Council” (sic) in his first motion and “ineffective counsel” in the second. Any undertaking to differentiate between inadequate counsel and ineffective counsel would be tantamount to distinguishing Tweedledum from Tweedledee, a task beyond our judicial abilities.

Judgment affirmed.

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

      . This apparently refers to a “Federal Habeas Corpus” proceeding mentioned in an earlier answer to a question (11) not reproduced herein.


author: HARBISON, Justice.

text:
    AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHATTANOOGA, Petitioner-Defendant, v. Norman Frances Raoul CLARK and Ann Elizabeth Raoul, Respondents-Plaintiffs.
    Supreme Court of Tennessee.
    Aug. 20, 1979.
    Rehearings Denied Oct. 1, 29, 1979.
    Jere T. Tipton, Miller & Martin, John P. Gaither, Witt, Gaither & Whitaker, Chattanooga, for petitioner-defendant.
    Leonard R. Tanner, Jr., Richard P. Jahn, Chattanooga, for respondents-plaintiffs.
   OPINION

HARBISON, Justice.

In this action the beneficiaries of an inter vivos trust, created in 1949, sued the trustee for damages. They alleged that the trustee breached its fiduciary duty to advise them fully concerning transactions in 1944 involving shares of corporate stock which the beneficiaries transferred to the trust in 1956. This suit was begun in 1977. It is a sequel to and an outgrowth of earlier litigation between the same parties concerning the same general subject matter. See Clark v. American National Bank & Trust Co. of Chattanooga, 531 S.W.2d 563 (Tenn.App.1974), cert. denied, by Supreme Court of Tennessee, July 7, 1975, cert. denied, 423 U.S. 1053, 96 S.Ct. 786, 46 L.Ed.2d 644 (1976).

It is conceded by the plaintiffs, respondents here, that most, if not all, of the issues raised in the present proceeding and sought here to be litigated were involved, though not necessarily finally determined, in the previous suit. In their briefs and arguments, all parties rely heavily upon portions of the judgments and decrees in the previous litigation favorable to them and by closely reasoned arguments seek to avoid those portions of the previous adjudications unfavorable to them.

It is conceded by the respondents that they seek to recover in the present case the identical damages sought in the earlier litigation, arising from an alleged wrongful exchange in 1944 by the trustee of no-par common stock of the Cavalier Corporation, then being held in two earlier trusts, for one hundred dollar par value shares in the same corporation, having a dividend preferential. The two trusts which were being administered by the trustee in 1944 terminated in 1956. The prior litigation was commenced in 1964 and was ultimately held to be time-barred in some respects and without merit in others. It was extremely protracted and complex, spanning some twelve years. The case was tried on its merits and a voluminous evidentiary record compiled. The various claims and theories of the parties and the holding of the Court of Appeals thereon are discussed in the reported opinion cited above.

After this Court had denied the petition for certiorari filed on behalf of respondents in the earlier case, and after the'Supreme Court of the United States had likewise declined to review the decision of the Court of Appeals, the present suit was brought. In it, the same trust beneficiaries charged the trustee of the 1949 trust with failure to advise them adequately at any time prior to their filing of the first suit of the adverse consequences to the trust corpus of the 1944 stock exchange. They transferred their stock to the present trust when the earlier trusts terminated in 1956.

To the present action the trustee filed a motion for summary judgment, relying upon principles of res judicata as well as the statute of limitations and laches. The Chancellor sustained the motion, finding that all of the issues had been fully adjudicated and determined in the prior suit. The Court of Appeals reversed, holding that the cause of action now asserted against the trustee was different from that involved in the previous litigation and stating that the gravamen of the present suit, “failure to communicate, was not an issue” in the former suit.

In this regard, even the respondents admit that the Court of Appeals was incorrect. They assert, in their reply to the trustee’s petition for certiorari, that the issue was raised, and was in fact litigated, but they allege that they raised it simply in response to the affirmative defense of the statute of limitations asserted by the trustee in the first case. They further state:

“The issue of failure to communicate was obviously raised in the prior case by Clark-Raoul, but not as a necessary element of the prior cause of action, but instead to counter an affirmative defense. Further, even though the prior case clearly and finally holds that there had been no communication to Clark-Raoul . . ., this finding was not on a material issue . . . because there had been no ‘physical concealment’ . ., hence the statute was nontheless [sic] allowed to run . . . .”

The opinions and judgments in the prior case make it clear that alleged failure of the trustee properly to communicate with and advise the beneficiaries was a central issue in that litigation, and the Court of Appeals was in error in holding otherwise.

It is the insistence of the respondents that the principle of res judicata applies only to issues actually raised and finally adjudicated in prior litigation. Their complaint refers to and repeats a number of allegations and claims allegedly raised in the former suit but asserts that these are not foreclosed here because they were not finally determined therein.

This, in our opinion, is too narrow a view of the principle involved. It has long been the rule in this state that not only issues which were actually determined, but all claims and issues which were relevant and which could reasonably have been litigated in a prior action, are foreclosed by the judgment therein. See Jordan v. Johns, 168 Tenn. 525, 79 S.W.2d 798 (1935).

This principle was illustrated in the case of Henegar v. International Minerals & Chemical Corp., 209 Tenn. 355, 354 S.W.2d 69 (1962), in which a plaintiff undertook to “split” his cause of action and litigate only a portion thereof. The suit involved an alleged recurring nuisance. In the first action the plaintiff tried and pursued to judgment claims for property damage for a specified period of time. In a second suit the same plaintiff sought to recover for a later period of time, but one which still preceded the date of the filing of the previous action. A plea of res judicata was sustained by the trial court. This Court affirmed, stating:

“The doctrine of res judicata operates to bar all claims that were actually litigated or could have been litigated in the first suit between the same parties. Graybar Electric Co. v. New Amsterdam Casualty Co., 186 Tenn. 446, 211 S.W.2d 903.
“The applicable rule is stated by Judge Robert Taylor of the Eastern District of Tennessee, in the case of Phillips v. U. S., D.C., 102 F.Supp. 943, 948 as follows:
‘Splitting of a cause of action does not operate prospectively. It operates as an estoppel after judgment. Where a plaintiff, having a cause of action, elects to recover on only a part of it, a judgment thereon is res judicata against a second suit to recover on another part (provided the right to recover on all had accrued at the time of the first suit). Splitting of a cause of action is not fatal to the first action, but only to the second. In modern times the defense is in the nature of the plea of res judicata.’ ” 209 Tenn. at 358-59, 354 S.W.2d at 70-71.
See also National Cordova Corp. v. Memphis, 214 Tenn. 371, 380 S.W.2d 793 (1964).

All of the claims and theories now being asserted by respondents in their suit instituted in 1977 had accrued and were available for litigation in the action filed in 1964. As stated, that suit was protracted. Final judgment in the trial court was not rendered therein until 1973. The pleadings in that case were amended by both parties from time to time. The breach of trust asserted in the present case, and the facts underlying it, are alleged in the present complaint to have been known to the respondents no later than 1964, shortly prior to the time they filed their first action. This claim either was or clearly could have been included in that suit.

Respondents insist, and the Court of Appeals in both the present and the prior suit held, that petitioner, as trustee of the 1949 trust (No. 1661), was not, in legal theory, a successor trustee to the two earlier trusts which terminated in 1956, but was an entirely separate and “different entity.” Even so, it is clear from the reported opinion of the Court of Appeals in 1974 that claims for damages were asserted in that case against petitioner in its capacity as trustee of the 1949 trust. In particular, it was urged that that trustee had breached its fiduciary duty to respondents in not suing itself as trustee of the earlier trusts. See 531 S.W.2d at 573. Certainly when the respondents filed and when they litigated the earlier case, they also knew of their claim that the trustee of the 1949 trust had not properly advised them of the stock transactions, and they clearly knew of the losses which they claimed. We are unable to accept their contention that they could fragment their accrued claims against petitioner as trustee of the 1949 trust, litigate part of them to final judgment, and then recommence the litigation upon alternate claims or theories against the same defendant in its same capacity. We are not persuaded by their analogy to a suit against an attorney for malpractice, where the right to sue perhaps may not accrue until the cause in which he represented the plaintiff is irretrievably lost. Here the trustee, in its present capacity, was a direct defendant in the first suit; claims were made against it in that action; and the facts upon which the present claim is based had occurred and were then known to the claimants.

We are of the opinion that the Chancellor correctly concluded that principles of res judicata and collateral estoppel, applicable to issues which were either determined or should properly have been litigated and determined in the prior suit, bar the present action.

The judgment of the Court of Appeals is reversed and the suit is dismissed at the cost of respondents.

HENRY, COOPER and FONES, JJ., and BYERS, Special Justice, concur.

      . Respondents go so far as to urge that this issue was determined conclusively in their favor in the earlier case, so as to be binding here under principles of collateral estoppel. They insist, however, that until they lost the first case on the statute of limitations issue, their right to pursue their present remedy did not accrue.

      . But see Commercial Truck & Trailer Sales, Inc. v. McCampbell, 580 S.W.2d 765, 770-71 (Tenn.1979).

      . For the distinction between these two principles, see King v. Brooks, 562 S.W.2d 422, 423-24 (Tenn.1978); Booth v. Kirk, 53 Tenn.App. 139, 143-44, 381 S.W.2d 312 (1963).


author: FONES, Justice. HENRY, Justice,

text:
    Jesse F. RAY, Appellant, v. Jerry WEAVER and Carter County, Tennessee, Appellees.
    Supreme Court of Tennessee.
    Sept. 17, 1979.
    Lodge Evans, Elizabethton, for appellant.
    Rondal B. Cole, George F. Dugger, Jr., Dugger & Cole, Elizabethton, for appellees.
   OPINION

FONES, Justice.

Plaintiff, Jesse F. Ray, was a candidate, along with six others, for the office of judge of the General Sessions Court of Carter County in the August 1978 general election. Defendant, Jerry Weaver, was the candidate who won the election by a plurality of the votes cast. Plaintiff contests the eligibility of Weaver to assume his office because he is not a licensed attorney. We hold that the complaint states insufficient grounds to contest the election of Weaver as general sessions judge, and affirm the judgment of the trial court.

The facts of this case are undisputed and can be briefly summarized. Following the election, plaintiff filed a complaint within ten days of the election, as required by T.C.A. § 2-1705 in an election contest, that alleged that Weaver was “not qualified or eligible as a matter of law” to hold the office to which he was elected and asked that the court declare the election void on account of the winning candidate’s ineligibility to hold the office of general sessions judge. In a supplemental complaint plaintiff raised various state and federal constitutional violations if Weaver were allowed to continue as a general sessions judge. Additionally, plaintiff sought to join Carter County as a defendant in order to enjoin it from paying a salary to Weaver. The trial court dismissed the complaint and ruled that Jerry Weaver is entitled to hold the contested office. Appeal was duly taken to this Court pursuant to T.C.A. § 2-1716.

The grounds for this election contest is the ineligibility of Weaver to hold office because he is a person not licensed to practice law in the courts of Tennessee. In Hatcher v. Bell, 521 S.W.2d 709 (Tenn.1974), we held that an election contest is not limited to an attack on the integrity of the election process and thus includes a challenge to the legal or constitutional qualifications of the successful candidate to hold office. See also Zirkle v. Stegall, 163 Tenn. 323, 43 S.W.2d 192 (1930); Lewis v. Watkins, 71 Tenn. 174 (1879). The narrow question presented, therefore, is whether the successful candidate, Jerry Weaver, is legally eligible to hold the office of general sessions judge under the statutory qualifications prescribed by the Legislature.

In 1943 the Legislature enacted chapter 333 of the Private Acts, which established a general sessions court for Carter County. Section 2 of the Act vested the court “with all the jurisdiction and . . . the authority conferred by the Legislature upon Justices of the Peace in civil and criminal cases, suits and actions; and the Justices of the Peace of Carter County are hereby divested of all such jurisdiction and authority.” Hence the Act provided the general sessions court with the jurisdiction that previously had been exercised by the justices of the peace.

Section 9 of the Act provided, “there shall be one Judge of Said Court, who shall be a resident and citizen of Carter County, Tennessee, and learned in the law . . .” Plaintiff contends that the phrase “learned in the law” as used in this Act is synonymous with “licensed to practice law.”

In Heard v. Moore, 154 Tenn. 566, 290 S.W. 15 (1926), this Court held that the words “learned in the law” as used in an act that created the office of county judge in Sequatchie County was not a requirement that the office be held by a licensed attorney, but that it was intended as a direction to the voters. Following a similar Texas decision, the Court reasoned that “learned in the law” was a vague, indefinite and uncertain phrase and that the Legislature could have used the words “licensed attorney” if it intended to prohibit a layman from holding such an office. See also Kivett v. Mason, 185 Tenn. 558, 206 S.W.2d 789 (1947).

We believe that the phrase “learned in the law” as used in the private act that created the general sessions court in Carter County must be construed in light of this Court’s decision in Heard v. Moore, supra. We also note that when the Legislature created the general sessions court for Carter County, it also provided for general sessions courts in Lawrence and Giles Counties. Those two acts specifically provided that the judge shall be a person licensed to practice law in Tennessee. See 1943 Tenn. Priv.Acts, ch. 55, § 12; ch. 186, § 13.

There is no merit to the contention of plaintiff that the General Sessions Judge of Carter County is subject to the provisions of T.C.A. § 17-119, which expressly includes the qualification that judges embraced therein be authorized to practice law in the Court of Tennessee.

In State v. Freshour, 219 Tenn. 482, 410 S.W.2d 885 (1967) the Court held that T.C.A. § 17-119 applied only to those general sessions courts upon which the Legislature has conferred jurisdiction over and beyond that which is generally conferred on general sessions courts. In this case, the private act that created the General Sessions Court of Carter County did not purport to impose any jurisdiction other than that generally exercised in general sessions courts throughout this State, and before their existence, by justices of the peace. See 1943 Tenn.Priv.Acts, ch. 333, § 2.

Finally, plaintiff raises various alleged violations based on due process of law and equal protection of the laws under the state and federal constitutions, if Weaver continues to serve as general sessions judge in Carter County. We find that plaintiff has not shown that he has the requisite standing to challenge the constitutionality of these statutes.

It is fundamental that plaintiff as a private citizen must show that he is adversely affected in some manner that is not common to all citizens to invoke the jurisdiction of this Court. Bennett v. Stutts, 521 S.W.2d 575 (Tenn.1975); Skelton v. Barnett, 190 Tenn. 70, 227 S.W.2d 774 (1950). Plaintiff has failed to demonstrate any personal deprivation of constitutional rights.

The judgment below is affirmed. Costs are adjudged against appellant.

BROCK, C. J., and COOPER and HARBI-SON, JJ., concur.

HENRY, J., concurs with opinion.

HENRY, Justice,

concurring.

I concur generally in the opinion prepared for the Court by Mr. Justice Fones.

I agree that the General Sessions Judge of Carter County is not required to be a licensed attorney, under Chapter 333, Private Acts of 1943, and, therefore, may not be deprived of the right to assume and hold that office. By concurring in this opinion, I do not depart from my consistent opinion that “for a non-attorney judge to preside over any criminal trial, juvenile investigation, or hearing under the laws relating to the mentally ill or any other proceeding wherein a citizen may be deprived of his liberty, is violative of the Fourteenth Amendment to the Constitution of the United States and Article I, Sec. 8 of the Constitution of Tennessee.” Perry v. Banks, 521 S.W.2d 549 (Tenn.1975) (Henry, J., concurring).


author: LEWIS, Judge. LEWIS, Judge.

text:
    George W. COOPER, III, Administrator of the Estate of Barry Wesley Cooper, Plaintiff-Appellant, v. W. R. QUEEN, Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    March 30, 1979.
    Rehearing Denied June 29, 1979.
    Certiorari Denied by Supreme Court Aug. 27, 1979.

      Jordan Stokes, III, Nashville, for plaintiff-appellant.
    Don R. Binkley, Gracey, Maddin, Cowan & Bird, Nashville, for defendant-appellee.
   OPINION

LEWIS, Judge.

This appeal arises from the dismissal of plaintiff’s suit against W. R. Queen. Defendant moved for a dismissal of the complaint against him on the ground that under the provisions of T.C.A. § 50-908, the rights and remedies granted by the Tennessee Workmen’s Compensation Law on account of personal injuries or death by accident are exclusive of all other remedies, including suits at common law.

In his Complaint, plaintiff alleges:

1. Twenty-one year old Barry Wesley Cooper died while employed and on the job for Queen’s Tree Surgery, Inc.;
2. W. R. Queen is the chief stockholder and President of Queen’s Tree Surgery, Inc.;
3. Queen’s Tree Surgery, Inc. had a contract with Nashville Electric Service to trim trees and brush from around electric poles and lines;
4. Trimming was done by a workman in a fiberglass bucket controlled by steel cables running from the bucket down to the truck;
5. The steel cables are manufactured with fiberglass insulators inserted in the cable to prevent the flow of electricity to the truck body should there be any contact with an electric wire;
6. Queen’s Tree Surgery, Inc. had removed the fiberglass insulators resulting in an unimpeded path through which electricity could pass down to the truck body;
7. The assembly came in contact with a live wire and at least 4000 volts passed down the cable to the truck body and plaintiff’s decedent was electrocuted when he came in contact with the truck; and,
8. W. R. Queen as chief officer and major stockholder of Queen’s Tree Surgery, Inc. was grossly, even criminally, negligent in furnishing that piece of equipment to the work crew.

Defendant’s motion for dismissal of the suit against him was granted.

The sole assignment of error alleges the Trial Court erred in holding W. R. Queen could not be sued at common law for his gross or criminal negligence and that plaintiff’s only available remedy was the Tennessee Workmen’s Compensation Law.

The sole issue then is whether W. R. Queen is shielded from common law liability by T.C.A. § 50-908.

Stated in its narrowest terms and in comport with plaintiff’s general line of argument, the issue is whether gross or criminal negligence is of such a character that it should be equivalent to intentional tortuous conduct and thus fall outside the scope of T.C.A. § 50-908.

50-908. Right to compensation exclusive. The rights and remedies herein granted to an employee subject to the Workmen’s Compensation Law on account of personal injury or death by accident, including a minor whether lawfully or unlawfully employed, shall exclude all other rights and remedies of such employee, his personal representative, dependents, or next of kin, at common law or otherwise, on account of such injury or death. [Acts 1919, ch. 123, § 8; Shan.Supp., § 3608al57; Code 1932, § 6859; Acts 1961, ch. 184, § 2.]

Plaintiff cites Williams v. Smith, 222 Tenn. 284, 435 S.W.2d 808 (1968), and Reed v. State, 172 Tenn. 73, 110 S.W.2d 308 (1937), in support of his proposition that gross or criminal negligence is equivalent to an intentional tort.

In Williams, plaintiff, an employee saleslady for the defendant company was fired by a fellow employee, the store manager, who subsequently allegedly intentionally committed an assault and battery upon her. Two issues were raised on appeal:

(1) whether or not the Workmen’s Compensation Act bars a common law action where an employer corporation acting through its employee alter ego intentionally commits an assault and battery upon an employee so as to restrict the assaulted employee’s remedy exclusively to the Workmen’s Compensation Act, and
(2) whether or not the Workmen’s Compensation Act provides immunity to an employee who commits an intentional and malicious assault and battery upon a co-employee.

Our Supreme Court held that the Workmen’s Compensation Act barred a common law action against the employer for injuries sustained as a result of an intentional tort committed by a co-employee but did not bar an action against the co-employee.

As the co-employee in Williams had committed an intentional tort by definition, the case is not authority for the proposition that gross negligence should be considered the equivalent of intentional tortuous conduct for purposes of liability outside the Workmen’s Compensation Act.

In Reed v. State, supra, appellant had been convicted of voluntary manslaughter arising from an automobile accident. The appellant’s negligence was deemed by the jury to constitute criminal negligence. The issue on appeal was whether appellant’s acts were such as to be regarded as malum in se. In finding that appellant’s acts were malum in se, the Court used the following language, which plaintiff at bar asserts is determinative of the issue he raises:

It was an act on a par with firing a gun into a crowded street, or dropping a heavy object into such a street from a tall building. Id. at 76, 110 S.W.2d at 309.

Reed v. State concerned the issue of the nature of the negligence that would support a conviction for voluntary manslaughter. That gross or criminal negligence may or may not be sufficient to substantiate a conviction of voluntary manslaughter in criminal law is not authority for plaintiff’s proposition here.

The policy decisions of the criminal are distinctive from those of the civil law. In particular, this is true in light of the Legislature’s intent to alter remedies under the civil law, as evidenced by the enactment of the Workmen’s Compensation Act.

In Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65 (1961), the term “accident” as used in the Workmen’s Compensation Act was defined:

An accident is generally an unlooked for mishap, an untoward event, which is not expected or designed. Generally in most, such cases this Court has repeatedly said that a compensable injury should be the result of something happening by accidental means though the act involving the accident was intentional. Accidental means ordinarily mean an effect which was not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing. It is produced by means which were neither designed nor calculated to cause it. It cannot be reasonably anticipated, it is unexpected, it is produced by unusual combinations of fortuitous circumstances and such an injury is an injury by accidental means. Id. at 114-15, 350 S.W.2d at 69.

We are cited to none nor can we find any Tennessee authority on the issue of whether an allegation of an employer’s conduct of gross or criminal negligence is equal to an allegation of intentional tortuous conduct for the purpose of avoiding the exclusive remedy of the Workmen’s Compensation Act. However, in concert with authorities from other jurisdictions, we hold that it is not.

It is evident that an intentional tort by the employer in person upon the employee will afford a ground for common law action for damages. See e. g. Boek v. Wong Hing, 180 Minn. 470, 231 N.W. 233 (1930).

The theoretical basis for that result is that the employer cannot allege an accident when he has intentionally committed the act. See e. g. Le Pochat v. Pendleton, 271 App.Div. 964, 68 N.Y.S.2d 594 (1946).

The employer in such a situation would have to affirmatively plead the exclusiveness of the act as a defense and cannot do so when he has deliberately produced the result. Thus, the person who must allege the accidental character of the injury, as a matter of pleading, cannot do so because of the intentional character of the act.

As is said in Larson, Workmen’s Compensation (desk ed.), § 68.10,

Since the legal justification for the common law action is the non-accidental character of the injury from the defendant employer’s standpoint, the common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, wreckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury. Id. (citing Wilkinson v. Archber, 101 N.H. 7, 131 A.2d 51 (1957)).

As in Duncan v. Perry Packing Co., 162 Kan. 79, 174 P.2d 78 (1946), plaintiff here is seeking to avoid the exclusiveness of the Workmen’s Compensation Act by alleging facts in a negligence action against the employer. As in Duncan, even if we accept the allegations of gross or criminal negligence as true, it falls short of alleging actual intent to injure. There is a distinct difference in fact and law between gross or criminal negligence and actual intent to injure.

Our holding comports with analogous situations within the Workmen’s Compensation Act’s scope as litigated in foreign jurisdictions. See e. g. Provo v. Bunker Hill Co., 393 F.Supp. 778 (D.C.Idaho 1975) (even knowingly permitting a hazardous work condition to exist was not an intentional act sufficient to give the employee a common law remedy against his employer.); Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266 (1973) (no allegation that the employer intentionally caused the automobile hoist to fall upon the plaintiff. Plaintiff merely alleged an employer directed the employee to use the hoist at a time when he knew the hoist and safety device were defective. An allegation of wanton or willful negligence did not suffice.)

Further, the dual capacity doctrine does not afford the plaintiff a common law remedy. Under this doctrine, an employer normally shielded by the exclusive remedy principle may become liable if he occupies an additional capacity, other than mere employer, that confers upon him obligations independent of those imposed as an employer.

Here, under the allegations as asserted by plaintiff, defendant employer only stood in relationship of employer to employee. There were no independent grounds of a sufficient second relationship alleged.

It results that the plaintiff’s assignment of error is without merit. This cause is affirmed with costs to be paid by the plaintiff.

TODD and DROWOTA, JJ., concur.

ORDER ON PETITION TO REHEAR

LEWIS, Judge.

The plaintiff’s able and forceful Petition to Rehear points out no new matters of fact or law overlooked by us in reaching our conclusion. The Petition only reargues matters which were fully considered by us.

The plaintiff also asked that he be allowed to amend his complaint in this Court or, in the alternative, this Court remand the cause to the Circuit Court so that he would have an opportunity to amend there.

This Court considers only such matters as were brought to the attention of the Trial Court and acted upon or permitted by the Trial Court. Clement v. Nichols, 186 Tenn. 235, 209 S.W.2d 23 (1948). Only in rare cases will an amendment be allowed in the appellate court. Tennessee Cent. R. Co. v. Brown, 125 Tenn. 351, 143 S.W. 1129 (1911). This case in not one of those.

Further, even if the amendment were allowed, it does not add anything new to the complaint.

The Petition to Rehear is therefore respectfully denied at plaintiff’s cost.

TODD and DROWOTA, JJ., concur.


author: MATHERNE, Judge.

text:
    Wendell PATE and wife, Mary Betty Pate, Plaintiffs-Appellants, v. CITY OF MARTIN, a municipal corporation, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section.
    April 30, 1979.
    Certiorari Denied by Supreme Court Sept. 17, 1979.

      William A. Largen, Dresden, C. W. Miles, III, Union City, for plaintiffs-appellants.
    William M. Maloan, Brundige & Maloan, Martin, for defendant-appellee.
   MATHERNE, Judge.

The plaintiffs allege that the defendant city has created and maintains a nuisance in the form of a sewage lagoon and sue to abate the nuisance and to recover property damages suffered because of the nuisance.

By motion to dismiss the city alleges that the Chancery Court sitting in Weakley County, Tennessee, is without jurisdiction of the subject matter of this litigation. The city argues that the plaintiffs’ claim is governed by the Tennessee Governmental Tort Liability Act which places exclusive jurisdiction in the circuit court. The chancellor sustained the motion to dismiss and ordered the lawsuit transferred to the Circuit Court sitting in Weakley County, Tennessee. The chancellor granted a discretionary appeal and properly certified the following controlling questions of law:

a) Whether the chancery court has jurisdiction to try a nuisance case against a municipality, or
b) Whether the exclusive jurisdiction of a case against a governmental entity such as a municipal corporation lies in the Circuit Court and,
c) Whether a nuisance action against a municipality falls within and is governed by the governmental tort liability act of Tennessee as embodied in Tennessee Code Annotated Section 23— 3301, et seq.

The Tennessee Governmental Tort Liability Act at T.C.A. § 23-3307 provides:

Immunity from suit. — Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of said governmental entities wherein said governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary. When immunity is removed by this chapter any claim for damages must be brought in strict compliance with the terms of this chapter. [Acts 1973, ch. 345, § 3.]

The Act then proceeds to remove immunity in the following situations:

1) for injury from negligent operation of motor vehicles with certain exceptions (T.C.A. § 23-3308),
2) for injury from unsafe streets and highways with certain exceptions (T.C.A. § 23-3309),
3) for injury from dangerous structures with certain exceptions (T.C.A. § 23-3310),
4) for injury caused by negligent acts or omissions of employees with certain exceptions (T.C.A. § 23-3311).

Section 23-3319 of the Act gives the circuit courts exclusive original jurisdiction over any action brought under the Act. The word “injury” is defined at section 23— 3302(4) of the Act to include “damage to or loss of property.”

Prior to the enactment of the statute, it was settled law in Tennessee that if a municipality creates and maintains a nuisance, it is liable for the resulting damages. City of Nashville v. Mason (1916) 137 Tenn. 169, 192 S.W. 915; City of Knoxville v. Lively (1918) 141 Tenn. 22, 206 S.W. 180.

In Dean v. Bays Mountain Park Ass’n (Tenn.App.1977) 551 S.W.2d 702, the minor plaintiff brought a personal injury suit for damages resulting from his riding a bicycle into a chain blocking an access road to bicycle trails in a city park. The plaintiff alleged that the chain constituted a nuisance for which the city was liable as an exception to the Tennessee Governmental Tort Liability Act. The defendant city argued that the condition of the chain, how it was placed, and its lack of bright paint for visibility constituted negligence only and did not establish a nuisance. In reversing a judgment for the plaintiff, the Court held that the condition complained of did not constitute a nuisance and dismissed the lawsuit. It could be argued that the Court in Dean did treat the lawsuit against the municipality as being outside the Tennessee Governmental Tort Liability Act. The Court did not, however, directly address the issue. We fail to find a reported Tennessee opinion on the subject.

Looking to the Act we must conclude that the legislature intended to remove governmental immunity only in the situations noted. However, the legislature did not deprive a court of equity of its inherent jurisdiction to abate a nuisance created and .maintained by a municipality. This lawsuit is an action in equity to abate an alleged continuing nuisance and for damages due to the existence of the nuisance. A chancery court has inherent jurisdiction to abate a nuisance, and in the same suit award damages for the injuries caused by the nuisance. 2 Gibson’s Suits in Chancery, § 872, footnote 136 (5th Edition).

We, therefore, hold that the Chan.cery Court sitting in Weakley County, Tennessee, has subject matter jurisdiction over this lawsuit and that this lawsuit is not governed by the provisions of the Tennessee Governmental Tort Liability Act, T.C.A. § 23-3301, et seq.

The decree of the chancellor is reversed and this lawsuit is remanded to the Chancery Court sitting in Weakley County, Tennessee, for such further proceedings as the law directs. The cost in this Court is adjudged against the defendant-appellee.

NEARN and LEWIS, JJ., concur.


author: DUNCAN, Judge.

text:
    Larry GRIGSBY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 20, 1978.
    Certiorari Denied by Supreme Court Jan. 2, 1979.

      Charles W. Boyle, Jr., Robert Eugene Smith, Atlanta, Ga., for appellant.
    William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Carl K. Kirkpatrick, Dist. Atty. Gen., Blountville, R. Jerry Beck and Steven H. Jones, Asst. Dist. Attys. Gen., Blountville, for appellee.
   OPINION

DUNCAN, Judge.

The appellant, Larry Grigsby, was convicted in the Sullivan County Criminal Court of distributing obscene material, and received a jail sentence of six months and a fine of $2500.

The appellant argues that the magazines which were the subject matter of this prosecution are not obscene, and that the trial judge erred in instructing the jury that the requisite scienter could be established by proof of “constructive knowledge.” We affirm the judgment.

On May 18, 1977, Officer Walter K. Mus-grove of the Bristol Police Department went to “Larry’s News” in Bristol. A sign on the door of this establishment read, For Adults Only.” Officer Musgrove entered the newsstand and observed a glass display counter containing for sale several sex oriented items, including “vibrators and aphrodisiacs.” He also observed a magazine rack containing magazines for sale which depicted acts of “sex, homosexuality, sadomasochism and heterosexual activities.” Officer Musgrove purchased four magazines which had the following titles: “Freaky Lovers,” “Bondage Methods,” “Hot Action” and “Lesbian Lovers.” The evidence showed that this business establishment was owned by the appellant, and that he personally sold the magazines to Officer Musgrove.

First, the appellant argues that the magazines are not obscene. We have inspected these magazines and find that they clearly come within the definition of obscene materials set out in T.C.A. § 39-3010 (1975). We hold (1) that the average person, applying contemporary community standards, would find that each of these magazines, taken as a whole, appeals to the prurient interest; (2) that each magazine depicts or describes, in a patently offensive way, sexual conduct; and (3) that each magazine, taken as a whole, lacks serious literary, artistic, political or scientific value. As such, these magazines are not protected by the first amendment. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Roth v. U. S., 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Taylor v. State ex rel. Kirkpatrick, 529 S.W.2d 692 (Tenn.1975).

We agree with the jury that these magazines are obscene. This assignment is not meritorious.

Next, the appellant contends that the trial judge gave an erroneous instruction on the issue of scienter.

In the trial judge’s instructions to the jury, he charged, among other things, the statutory definition of “knowingly” — T.C.A. § 39-3010(F) (1975) — as follows:

“Knowingly” . . . means having actual or constructive knowledge of the subject matter. A person shall be deemed to have constructive knowledge of the contents if he has knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material.

Later in his charge, the trial judge stated:

As indicated, you must find beyond a reasonable doubt that the defendant knowingly distributed obscene material, that is that he was aware of the character, nature and contents of the material in question. You are reminded that you must consider all the direct and circumstantial evidence as [to] this issue and all issues.

In Hamling v. U. S., 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the district court judge instructed the jury, inter alia, “that in order to prove specific intent on the part of these petitioners, the Government had to demonstrate that petitioners ‘knew the envelopes and packages containing the subject materials were mailed or placed ... in Interstate Commerce, and . . . that they had knowledge of the character of the materials.’ ” 94 S.Ct. at 2909. The district court further instructed the jury that the [petitioner’s] belief as to the obscenity or non-obscenity of the material was irrelevant. The Supreme Court held these instructions to be proper and explained:

It is constitutionally sufficient that the prosecution shows that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials. To require proof of a defendant’s knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law. Such a formulation of the scienter requirements is required neither by the language of 18 U.S.C. § 1461 nor by the Constitution. 94 S.Ct. at 2910-2911.

Our Supreme Court in Taylor v. State ex rel. Kirkpatrick, supra, held, among other things, that the 1974 Obscenity Act — T.C.A. §§ 39-3010, et seq. (1975) — was not unconstitutional on the ground that it lacked a requirement of scienter. In stating that the act clearly required scienter, the Court said:

To render constitutional a statute which prohibits the exhibition or distribution of obscene material, it is not necessary to require that a defendant know or believe that the material in question is legally obscene; it is sufficient to require that the defendant have knowledge of the contents or character of the obscene material. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). (other citations omitted). 529 S.W.2d at 695.
Obviously, the statute before us complies with the scienter requirement of the First Amendment as construed in the foregoing cases. Section 3(A) requires that the prohibited act of exhibition, distribution, etc., be knowingly done; and, “knowingly” is defined in Section 2(F) as meaning actual knowledge of the subject matter or actual knowledge of facts which would put a reasonable and prudent man on notice of the suspect nature of the material in question. 529 S.W.2d at 695.

In the present case, the trial judge clearly told the jury that before the appellant could be found guilty, they had to find that he knowingly distributed the obscene material, and further explained to them that the appellant had to be aware of the character, nature and contents of the material in question. We hold that the trial judge’s instructions were proper and were in compliance with the constitutional standards stated in the Hamling and Taylor cases.

From the direct and circumstantial evidence in this case, the jury was well warranted in finding, in accordance with the instructions given, that the appellant knowingly distributed the obscene magazines and did it with knowledge of facts sufficient to put him on notice of the obscene nature of them.

We overrule the appellant’s assignments of error, and the judgment of the trial court is affirmed.

RUSSELL, P. J., and JOHN D. TEM-PLETON, Special Judge, concur.


author: DUNCAN, Judge,

text:
    Harvey K. MURRAY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    April 26, 1979.
    Certiorari Denied by Supreme Court Aug. 27, 1979.
    Carl E. Anderson, Chattanooga, for appellant.
    William M. Leech, Jr., Atty. Gen., Charles L. Lewis, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., Chattanooga, John W. Goza, Jr. and Jon Seaborg, Asst. Dist. Attys. Gen., Chattanooga, for appellee.
   OPINION

DUNCAN, Judge,

The appellant, Harvey K. Murray, was convicted in the Hamilton County Criminal Court of obtaining property over the value of $100.00 by false pretense and received a penitentiary sentence of not less than 3 years nor more than 5 years.

In this appeal, the appellant assigns errors contesting the evidence, the trial court’s rulings on his petition for writ of certiorari for pre-trial diversion, and the denial of a motion for continuance. We find no merit to his complaints.

The State’s evidence which the jury accredited showed that the appellant and Jackie Johnson were partners in a business concern known as the M & J Electronics. On September 7, 1977, the appellant agreed to purchase from Johnson a motorcycle for the price of $500. The appellant represented to Johnson that he would pay for the motorcycle by going to the local hospital and paying the sum of $500.00 on Johnson’s mother’s hospital bill. Subsequently, Johnson called the hospital, was informed that the money had been paid on the bill, and thereafter, Johnson signed the title to his motorcycle over to the appellant. Shortly thereafter, it was determined that the appellant had paid the hospital bill with a bad check, had closed the office bank account, and had left town. Johnson found the business office closed and all of the office equipment was missing. After the appellant’s check to the hospital had bounced, Johnson was held liable for the hospital bill, and commenced making payments on the obligation.

We find it unnecessary to further detail the evidence. The appellant does not seriously contest the evidence, as he does not submit in his brief , any argument or offer any citations of authority on his evidence complaint. Suffice it to say that the evidence is more than ample to show that the appellant falsely represented to Johnson that he had paid the hospital bill; that Johnson relied upon the false representation; that Johnson was deceived; and that by reason of this deception, the appellant obtained Johnson’s motorcycle. The proof well establishes the elements of this offense. See T.C.A. § 39-1901; Mullican v. State, 210 Tenn. 505, 360 S.W.2d 35 (1962). The evidence does not preponderate against the verdict of the jury. State v. Grace, 493 S.W.2d 474 (Tenn.1973).

Next, we hold that the trial judge acted correctly in dismissing the appellant’s petition for writ of certiorari wherein the appellant sought to have him review the district attorney general’s action in refusing the appellant’s pre-trial diversion request.

The appellant was indicted on July 12, 1978. Subsequently, the district attorney general refused to agree to a pre-trial diversion program for the appellant. On September 12, 1978, one week before the appellant’s trial, he petitioned the trial court requesting a review of the district attorney general’s action.

On September 19, 1978, before the commencement of the appellant’s trial, the trial judge considered the appellant’s petition, and the district attorney general explained to the court his reasons for not entering into the “Memorandum of Understanding” as contemplated by the statutory scheme of T.C.A. § 40-2105, et seq. He stated that the appellant was then under indictment in Hamilton County in at least 9 other cases; that there were other charges which could be brought against him in Hamilton County; and that multiple charges were pending in other Tennessee counties and in 6 or 7 other states.

Obviously, with this information in the possession of the district attorney general, it cannot be said that he acted arbitrarily and capriciously in his refusal to participate in a diversion program for the appellant. There was no abuse of discretion on the district attorney general’s part. See Pace v. State, 566 S.W.2d 861 (Tenn.1978). Likewise, when the trial judge was apprised of the appellant’s status, he was correct in dismissing the appellant’s petition for writ of certiorari.

Finally, we hold that the trial court did not err in refusing a continuance in this case.

The appellant was indicted for this offense on July 12, 1978. Counsel was appointed to represent him on July 17, 1978, over two months before his trial. Even though the appellant was charged in several other indictments, this period of time was more than adequate for trial preparations incident to all of his charges. This record fails to show any adequate reason or necessity that would have warranted any continuance. The appellant has failed to show that he was prejudiced by the denial of a continuance. The appellant had a fair trial, and the result in this case would have been the same had his continuance motion been granted. Maxwell v. State, 501 S.W.2d 577 (Tenn.Cr.App.1973). We find no abuse of discretion on the part of the trial court in refusing the appellant’s motion for a continuance. State v. Cupp, 215 Tenn. 165, 384 S.W.2d 34 (1964).

We overrule the appellant’s assignments of error. The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    BRAZOS GRAPHICS, INC. et al., Petitioners, v. ARVIN INDUSTRIES, INC., Respondent.
    No. B-8166.
    Supreme Court of Texas.
    April 18, 1979.
    Steven E. Halpin, Houston, for petitioners.
    Fulbright & Jaworski, Osborne J. Dykes, III, Houston, Lawrence, Thornton, Payne & Watson, Billy M. Payne, Bryan, for respondent.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

This is a products liability action wherein the plaintiff, Brazos Graphics, Inc., presented expert testimony that the product in question possessed a design defect. In order to rebut this expert testimony, the defendant, Arvin Industries, Inc., offered a report prepared by Underwriters’ Laboratories, Inc., a non-profit independent testing laboratory. The court of civil appeals held that the test report was generally admissible as a business record of Underwriters’ Laboratories within the purview of Tex. Rev.Civ.Stat.Ann. art. 3737e. 574 S.W.2d 240, 243.

We express no opinion whether the report prepared by the independent testing laboratory falls within the scope of article 3737e, because we think the present report is merely cumulative of other testimony directed to the same point. This court will not ordinarily reverse a trial court ruling on the admissibility of evidence when the evidence complained of is merely cumulative. Whitener v. Traders & General Ins. Co., 155 Tex. 461, 289 S.W.2d 233 (1956).

The application for writ of error is refused, no reversible error.


text:
    L. Alvis VANDERGRIFF, Savings and Loan Commissioner of Texas et al., Petitioners, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF BRECKENRIDGE, TEXAS, Respondent.
    No. B-8338.
    Supreme Court of Texas.
    June 13, 1979.

      Mark White, Atty. Gen., Yolanda Martin, Asst. Atty. Gen., Larry Temple, Austin, for petitioners.
    Robert B. Burns, Jr., and John J. McKay, Austin, for respondent.
   PER CURIAM.

Respondent First Federal Savings and Loan Association of Breckenridge, Texas filed this suit in district court seeking to set aside an order of the petitioner Savings and Loan Commission of Texas which approved the application of Graham Savings and Loan Association to open a branch office in Breckenridge. In its first amended original petition, First Federal alleged two basic causes of action: one being an administrative appeal of the order as contemplated by statute; and the other being an equitable action to set aside the Commission’s order on the grounds that it was obtained by the extrinsic fraud of Graham Savings and Loan Association. The trial court dismissed the ease for want of jurisdiction because First Federal had not filed a motion for rehearing before the Commission, which was a jurisdictional prerequisite to filing suit in district court. Tex.Rev.Civ.Stat. Ann. art. 6252-13a §§ 16(c), 16(e). The court of civil appeals reversed and remanded the case to the trial court. 576 S.W.2d 904. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

The court of civil appeals correctly held: (1) First Federal’s amended petition alleged two separate causes of action, one in the nature of an administrative appeal and the other in the nature of an equitable action. (2) The trial court properly dismissed the administrative appeal cause of action because no motion for rehearing was filed before the Commission and such motion is by statute a jurisdictional prerequisite for an administrative appeal. (3) The facts alleged in support of the equitable action did not constitute extrinsic fraud as that term is defined in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950).

. The court of civil appeals committed error in remanding the cause to the trial court to allow First Federal an opportunity to replead extrinsic fraud. Rule 434 sets forth the provisions governing what disposition the court of civil appeals may make of a case in which it has reversed the judgment of the trial court. The court may remand the cause for a new trial rather than render a final judgment only if there is error in the trial court judgment. Barman v. Lopez, 471 S.W.2d 567 (Tex.1971); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 385 (Tex.1963). Since First Federal’s petition failed to allege facts suf-. ficient to raise extrinsic fraud, the trial court properly dismissed the suit, even if not for the same reasons stated in the court of civil appeals opinion. There was no error in the judgment.

Having determined that First Federal’s petition was properly dismissed, we have no need to consider the merits of the court of civil appeals holding that the equitable action to vacate the administrative order for extrinsic fraud was indeed a valid cause of action. Even assuming arguendo that it was a valid cause of action, First Federal did not plead adequate facts to support it. The petition therefore should have been dismissed in any event. Consequently, we expressly reserve for future consideration whether an equitable action to vacate an administrative order for extrinsic fraud may be brought, irrespective of any statutory authority to do so. This opinion should not be read as commenting one way or the other on this point.

Having found conflict between the court of civil appeals decision and Rule 434 of the Texas Rules of Civil Procedure, as well as previous opinions of this court, the application for writ of error is granted and, without hearing argument, the judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed. Tex.R.Civ.P. 483.