author: SNYDER, Judge. SMITH, Judge,

text:
    STATE of Missouri, ex rel. KIRKWOOD EXCAVATING, INC. and C.L.M. Contracting, Inc., Relators, v. Hon. Harry J. STUSSIE, Circuit Judge of St. Louis County, Missouri, Respondent.
    No. 49605.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 9, 1985.
    David M. Korum, Kirkwood, for relators.
    Morton R. Newman, Mayer S. Klein, Clayton, for respondent.
   SNYDER, Judge.

Relators filed their petition for a writ of prohibition or in the alternative a writ of mandamus, seeking to prohibit the respondent judge from dismissing their contract petition (Kirkwood Excavating, Inc. and C.L.M. Contracting, Inc., joint venturers, vs. Carafiol’s Properties Company, Cause No. 477108) and from denying their motion to consolidate their contract action into a pending mechanic’s lien action (Krupp Construction Company, Inc. vs. Carafiol’s Properties Company, et al., Cause No. 440675).

This court issued its preliminary writ of mandamus in which it ordered the respondent judge to refrain from all action on both the relators’ contract suit and the mechanic’s lien suit. The preliminary writ further ordered a stay of any orders entered by respondent on relators’ motion to consolidate and the motion to dismiss of the defendant in the underlying contract suit.

The parties briefed the issues, the court heard oral argument, and now makes its preliminary writ absolute by ordering the respondent judge to set aside his order of January 18, 1985, in which he granted the defendants’ motion to dismiss the relators' underlying contract action and dismissed the cause of action with prejudice, at the same time denying relators’ motion to consolidate their contract action with the mechanic’s lien action; respondent judge is further ordered to deny the defendants’ motion to dismiss in the underlying contract action, to grant relators’ motion to consolidate and to permit relators to prosecute their cause of action on the contract.

The genesis of this litigation was a petition filed by Krupp Construction Company, Inc., as plaintiff, to enforce a mechanic’s lien against Aaron and Joseph Carafiol, a partnership, doing business as Carafiol Properties Company. Various other defendants were joined in the action. Pen-rod, Inc. filed a separate mechanic’s lien suit against Carafiol and the Penrod suit was consolidated into the Krupp lien suit.

The Krupp suit was filed on June 30, 1980, the consolidation of the Penrod suit with the Krupp suit took place on April 24, 1981. As is usual in mechanic’s lien actions, the parties filed many pleadings and engaged in various forms of discovery. One of the defendants, Swan Construction Company, Inc., on July 9,1982 filed its first amended cross-claim in five counts against Carafiol.

There were negotiations and settlements during the course of which the relators on July 30, 1982 filed a suit for breach of contract and damages of $51,405.49, arising out of their performance of excavation work.

By September 27, 1982, cross-claimant Swan Construction Company, Inc. was the only party left with a claim against Cara-fiol in the Krupp lien suit, both Krupp and Penrod having dismissed their petitions and Swan having dismissed Counts I, II and III of its cross-claim, leaving Counts IV and V still to be litigated. Swan and Carafiol passed the cause for settlement on the remaining Counts IV and V on December 31, 1982. No further activity occurred until August 27, 1984.

Carafiol filed its motion to dismiss rela-tors’ contract suit on or about July 3, 1984 and then on August 27, 1984 relators filed their motion to consolidate their contract suit into the Krupp mechanic’s lien suit. Relators filed a duplicate of the motion to consolidate in their contract suit.

Swan and Carafiol, on December 14, 1984, filed their memorandum of dismissal with prejudice of Counts IV and V of Swan’s cross-claim in the lien suit. Their memorandum was signed by Judge Ninian M. Edwards.

The respondent judge said he would grant the motion to dismiss the contract suit, apparently because he considered the lien suit closed, and deny the motion to consolidate of relators, on January 15,1985 unless he were prohibited by a higher court order. Respondent did in fact sign an order on January 18, 1985, granting the motion to dismiss and denying the motion to consolidate, this court’s preliminary writ not having been issued until the same day, January 18, 1985.

Relators seek prohibition or mandamus. No. issue has been raised concerning the propriety of the remedy sought by relators. This court will treat the action as one for mandamus and finds that the remedy is applicable to the facts and the procedural posture of the causes of action.

This court approved mandamus in State ex. rel. Power Process v. Dalton, 681 S.W.2d 514, 516[1] (Mo.App.1984). The re-lators in Power Process sought mandamus to enforce their right to intervene rather than to enforce a motion to consolidate. The facts in Power Process are almost on all fours with the facts in the case under review, except that here the relators are attempting to enforce a motion to consolidate rather than a motion to intervene. The result of granting either motion would be the same.

There is no rule allowing consolidation as a matter of right as there is allowing intervention as a matter of right, Rule 52.12(a). Relators’ request is in fact a request to intervene in the Carafiol suit just as the relators in Power Process sought intervention, even though one of them had filed a separate suit on contract in the same circuit court.

This court is mindful of the case of State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983), in which the supreme court held that the lower court should not continue the unfettered use of the writ of prohibition to allow interlocutory review of trial court error. The holding in Morasch, however, has been modified in State ex rel. Richardson v. Randall, 660 S.W.2d 699, 701 (Mo. banc 1983). The court further limited the effect of the the Morasch ruling in State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764 (Mo. banc 1984). See Judge Blackmar’s concurrence.

Here we are concerned with mandamus, and although relators did not file a motion to intervene, the practical effect of their motion to consolidate is an intervention just as it was in Power Process. See that case for additional citations on mandamus.

In the case under review, absolute, irreparable harm may come to relators if relief by way of an extraordinary remedy is not available to them. They are entitled to intervention and mandamus will lie to provide a remedy for the wrong they may suffer.

Relators in State ex rel. Power Process were corporations which had filed suits against certain defendants, one relator in the Circuit Court of the City of St. Louis and the other in St. Charles County. Their motions to intervene in a mechanic’s lien suit which arose out of the same construction project were denied by the court.

Similarly, relators here have filed a breach of contract suit in St. Louis County which arises out of the same construction project as does the Krupp lien action against Carafiol. The cases are similar in every respect and the only reason which might be advanced, and which has been advanced, for not granting relators’ motion and for not making this court’s preliminary writ absolute is the fact that the Krupp lien suit in the case under review had been passed for settlement before relators’- motion to consolidate was filed.

A stipulation for dismissal of the last two counts of the Swan cross-claim was filed with the court but at the time it was filed the relators’ motion to consolidate had already been filed and was still open. It had not been ruled upon. The cause was still pending for purposes of the motion.

The supreme court has ruled that equitable mechanic’s lien suits once filed are the exclusive remedy in all disputes, whether based on contract only or on a lien claim, when the disputes are between parties involved in the same construction project from which the mechanic's lien suit arises. State ex rel. Clayton Green’s Nursing Center, Inc. v. Marsh, 634 S.W.2d 462, 465 (Mo. banc 1982).

A breach of contract suit arising out of a construction project cannot be maintained and the proceedings must be stayed if an equitable mechanic’s lien action has been filed relating to the same project. This holds true whether the breach of contract action was filed before or after the mechanic’s lien suit was filed. State ex rel. Clayton Green’s Nursing Center, Inc. v. Marsh.

Unless the preliminary writ of mandamus is made absolute here, relators will be left without a remedy. They would be prohibited from ever litigating their cause of action. Such a result would be inequitable and should not be permitted. In the Clayton Green’s v. Marsh case the supreme court has interpreted the mechanics’ lien statute, § 429.300 RSMo. 1978, to mean that a contractor or supplier on a construction project cannot recover in a breach of contract suit if a mechanic’s lien suit is filed by a different entity which did work on the same job, unless the breach of contract suit is joined with the mechanic’s lien suit.

The Krupp lien suit file was still open in the court when relators’ motion was filed, even though it had been passed for settlement. This court holds that it was open for purposes of consolidation or intervention until actually dismissed by the court, an action which had not been taken at the time relators sought to join in the mechanic’s lien action.

Respondent relies on Fair Mercantile Company v. Union-May-Stern Co., 359 Mo. 385, 221 S.W.2d 751 (1949), but that case is distinguishable. In Fair Mercantile the cause was passed for settlement after the plaintiffs had testified in open court that they had reached an agreement in which “defendant would pay plaintiff $2,500.00 in full settlement and pay all costs and that plaintiff would execute a release to defendant its officers and directors.” Fair Mercantile 221 S.W.2d at page 753.

Plaintiff then refused to execute a release when the defendant tendered its check for $2,500. The trial court ruled that the cause of action should be dismissed and ordered the plaintiff to comply with the terms of the compromise which had been made in open court.

Fair Mercantile concerns the enforcement of a settlement agreement made in open court between the two parties to the lawsuit. The court’s ruling was not the same as saying that a case is closed to third parties who are entitled to join in the action after it has been passed for settlement, but not finally dismissed.

The preliminary writ is made absolute. Respondent is ordered to set aside his orders of January 18, 1985 granting Cara-fiols’ motion to dismiss and denying rela-tors’ motion to consolidate; respondent is further ordered to grant relators’ motion to consolidate and to allow them to prosecute their contract action in the Krupp lien suit.

GAERTNER, P.J., concurs.

SMITH, J., concurs in separate concurring opinion.

SMITH, Judge,

concurring.

I concur in the majority opinion upholding the right of relators to consolidate their contract action into the settled but as yet non-dismissed equitable mechanic’s lien action.

This concurring opinion is filed to point out that our intervention by mandamus is necessary because of a disturbing trend in the Missouri case law which appears to allow the destruction of a legitimate contract claim without notice or due process.

This trend apparently started with Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274 (1935). In that case an equitable mechanic’s lien proceeding had been filed pursuant to the predecessor of See. 429.270, RSMo 1978, by Boeckler Lumber Company. Richards Brick Co. was a named party to that suit. Following filing of the Boeckler suit, but prior to service of Richards, that company filed a mechanic’s lien suit involving the same property as the Boeckler suit. The appellate court held that pursuant to now Sec. 429.300 the institution of the Boeckler suit precluded the filing thereafter of Richards’ suit. The court pointed out that the legislature made provision for the equitable proceeding to allow adjudication in one suit of two or more mechanic’s liens sought to be enforced against the same property. The main issue decided in the case was whether the Boeckler’ suit was commenced prior to the Richards’ suit in view of the failure of process to issue before the Richards’ suit was filed. In holding that filing of the Boeekler’s suit “commenced” the action the court makes the interesting comment that if summons was not issued to Richards it was Richards’ duty as a named party to enter its appearance and plead within the statutory ninety day period. This comment was obviously limited to Richards as a lien claimant and was in recognition of constructive knowledge requirements imposed on parties whose claims arise from recorded notices.

In State ex rel. Great Lakes Steel Corp. v. Sartorius, 249 S.W.2d 853 (Mo. banc 1952) the exclusivity of the equitable mechanic’s lien proceeding was extended to a party named in the equitable suit who thereafter filed a non-lien contract action arising from the same transactions. The court, relying upon Richards Brick Co. v. Wright, supra, and Imse-Schilling Sash & Door Co. v. Kellems, 237 Mo.App. 960, 179 S.W.2d 910 (1944), imposed upon potential lien claimants the obligation to learn of the equitable suit and enter an appearance even if not served with process. This obligation was further extended to a non-party to the equitable suit, but that party was an officer of a lien claimant and apparently was viewed as having constructive knowledge of the equitable action.

In the Imse-Schilling case, relied upon in Great Lakes Steel, the court, in dealing with due process requirements upheld constructive notice to lien claimants because they could utilize the equitable remedy in the enforcement of their own liens. Great Lakes Steel did not limit its holding of constructive notice to those parties who had filed liens against the property.

In State ex rel. Clayton Greens Nursing Center, Inc. v. Marsh, 634 S.W.2d 462 (Mo. banc 1982) the court held that a contract action filed prior to the equitable lien action must be stayed pursuant to Sec. 429.300. There the plaintiff in the contract action was a named defendant in the equitable lien action. The dissent therein questioned the basic concept that the exclusivity of the equitable lien action applied at all to a claimant who sought only damages at law for breach of contract. Such a question is supported by the original analysis found in Richards Brick Co. v. Wright, supra, which impliedly at least recognized that imposition of liens against real estate involves questions of priority and possibilities of total liens exceeding the value of the real estate. There is a basis for assuring that interests against the same real estate be adjudicated in one action thereby avoiding inconsistent judgments or promoting a race to foreclose. It is difficult for me to see a comparable value in forcing claimants who assert no claim to an interest in the real estate into the law suit.

That aside, the cases heretofore discussed all involved claimants who had filed notices of lien prior to the institution of the equitable lien suit and who were named parties in that suit. The broad language used, however, did not limit the applicability of the exclusivity statute to those situations. As a result in State ex rel. Power Process Piping, Inc. v. Dalton, 681 S.W.2d 514 (Mo.App.1984) we applied the exclusivity doctrine to a contract claim by a non-lien claimant who was not a named party in the equitable proceeding. In upholding the right of that claimant to intervene we stated “The Kolb lien suit is the only forum in which they are entitled to litigate their claims. Absent express statutory language abrogating the contractual claims of relators against the property owners, rela-tors as separate prime contractors are entitled to intervene and litigate their claims in this case, the only available forum under the circumstances of this case.” (Emphasis supplied) By footnote we did state we were not deciding whether a separate contract suit was barred where the claimant was not informed of the lien suit or where it had been terminated before the contract suit was filed or where the property owner does not seek dismissal of the contract suit.

It is by no means clear to me that in the present posture of the Missouri law a claimant in a contract action or with a non-filed contract claim is protected from the bar of an equitable lien judgment because of lack of notice. The language of the cases seems to imply an affirmative duty of such claimant to determine the existence of such actions. Great Lakes Steel, supra. Although Sec. 429.190 would appear to limit the effect of a judgment in the equitable action to those who have been made parties, the cases do not appear to so limit the impact. Great Lakes Steel, supra; Power Process Piping, Inc., supra. Once it is decided that the equitable lien statute applies equally to lien and non-lien claimants it becomes unclear whether the affirmative duty requirements of Great Lakes Steel and Imse-Schilling apply equally to both types of claimants.

Minimal due process should require that before the equitable lien suit can serve as a bar to a non-lien claimant, he should be joined as a party and notified of the existence of the suit and its impact on him. Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635 (1946); Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The burden of such join-der should be upon the property owner or other party which reaps the benefit of the bar from the equitable lien judgment. It is one thing to place upon a claimant who seeks to impress a lien upon real estate, and who must record such intention as a public record, the affirmative duty to consult the public records to implement his lien lest he lose it. It is quite another to place such a duty upon a claimant who seeks only a common law damage award against the other party to his contract, who may in fact have no interest in the real estate. In the lien action the time constraints and precise venue of the lien action do not make such duty unduly burdensome. But the common law contract action is not burdened by such limited time constraints or venue. And in fact the common law claimant, including a geographically removed supplier, may not even be aware that the material or labor he supplied was utilized in the project which is subject to the equitable lien proceeding. It is not difficult to construct a chamber of horrors under a constructive notice format.

Here Carafiol did not, as far as the record reflects, make any attempt to notify relators of the pending equitable action until that suit had reached a point where Carafiol believed it was no longer pending and constituted a bar. That it was mistaken, as this court now holds, has saved the relators. Whether dismissal of the equitable lien suit prior to relators’ attempt to consolidate or intervene would have invoked the exclusivity bar is not clear under the law. In that posture our writ becomes a necessity to protect the relators’ rights. I therefore concur.


source: Caselaw Access Project

author: GREENE, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard F. AUSTIN, Defendant-Appellant.
    No. 13545.
    Missouri Court of Appeals, Southern District, Division One.
    April 9, 1985.

      John D. Ashcroft, Atty. Gen., Michael Finkelstein, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Frederick W. Martin, III, West Plains, for defendant-appellant.
   GREENE, Judge.

Defendant, Richard F. Austin, was jury-convicted of first degree robbery, § 569.-020, for which he received a sentence of 15 years’ imprisonment.

Evidence sufficient to sustain the conviction proved that on September 23, 1982, Austin and another man entered the Hillbilly Package Store in Willow Springs, Missouri, and took $350 at gunpoint from a clerk in the liquor store.

Austin’s first point relied on in his appeal of the conviction is a claim that the trial court erred in overruling his motion to dismiss the robbery charge because the state violated the provisions of § 217.490 by not bringing him to trial within 180 days from the time he first requested a speedy trial.

Austin was arrested in Kansas six days after the Willow Springs robbery, and was sentenced to the Kansas penitentiary for criminal violations there. On April 13, 1983, Austin notified the Howell County, Missouri prosecuting attorney that he requested a speedy trial, as required by the provisions of the Agreement on Detainers, to which both Missouri and Kansas are parties. Austin was returned to Howell County on September 1, 1983. He was brought before the court on the felony complaint the next day. Counsel was appointed, and a preliminary hearing was held on September 12, 1983, which resulted in Austin being bound over for trial. The information charging him with robbery was filed on September 13, and the cause set for trial on September 20, 1983.

On September 20, Austin then requested a change of venue and a change of judge. These requests were granted. The case was transferred to Wright County, where the case was reset for trial on October 7, 1983. Austin filed a motion to dismiss the information on the grounds that he was not ready for trial because of lack of time to prepare his defense. He claimed he could not get ready for trial within the 180 day period which is prescribed by § 217.490, after indication by defendant of his desire for speedy trial disposition. The motion was overruled, and the case was tried on October 7, resulting in the conviction in question.

Austin acknowledges that he was tried within the 180 day time limit, but premises his entire argument on the fact that he was not returned to Missouri until approximately 40 days before the 180 day time limit would expire. Austin did not request a continuance so that he could prepare more adequately. There is nothing in the record to show one would have been denied if requested. Austin was not denied adequate time to prepare his case by the trial court.

There is no showing in the record that the delay in returning Austin to Missouri from Kansas was through connivance of Missouri authorities. In fact, the record indicates otherwise, as Kansas, because of their law, would not release Austin until 120 days had passed from the date of his Kansas sentence, which was February 28, and did not release him to Missouri authorities until September 1. In addition, the record does not show that Austin was prejudiced in any way by being put to trial within the 180 day period. Austin made no offer of proof as to what any witness might have testified to if he had had more time to prepare, and offered no evidence at trial.

The evidence of guilt introduced by the state, consisting of an eyewitness identification and oral and written admissions of Austin to participation in a robbery which circumstantially could reasonably have been inferred to be the robbery in question, was conclusive. The point has no merit.

In his remaining argument, Austin claims the trial court erred in overruling his motion to quash the jury panel because the panel’s selection was violative of the requirements of Chapter 494, RSMo 1978. He states that the names of the 48 persons to form the jury panel were not pulled from the jury wheel by the clerk of the court, as required by law, because the sheriff, being ordered by the court to select bystanders to fill the jury panel after it was discovered that only 24 prospective jurors showed up in answer to summonses, selected his friends to fill the vacancies.

Section 494.250.1 requires the clerk to draw the names in the presence of the board of jury commissioners. Section 494.-260 provides that if it is necessary to fill vacancies in the jury panel for trial of any one case, the court may order the sheriff to fill the vacancies with qualified bystanders, who “shall be summoned from the various townships in the same proportion as the original panel was selected.”

In absence of a showing of prejudice to defendant, substantial compliance with the provisions of the two statutes in question is enough, State v. McCaw, 668 S.W.2d 603, 604 (Mo.App.1984), and unless defendant affirmatively demonstrates that his interests have been adversely affected by the court’s failure to exactly follow the statutory provisions, he is not entitled to relief on appeal. State v. Friend, 607 S.W.2d 902, 903 (Mo.App.1980).

The evidence here shows that the board of jury commissioners, rather than the clerk, pulled the names of the prospective jurors from the jury wheel, but they did so in the presence of the clerk, who took the cards bearing the jurors’ names and wrote them on the jury list. This was substantial compliance with the statute which is all that is required.

In regard to the allegation of misconduct by the sheriff in selecting alternate jurors, the evidence is that the sheriff, upon being ordered to do so by the trial court, selected 10 persons, some of whom he knew by name, and “went down to different townships and picked out one or two.” His only criteria in selecting the 10 persons were that he thought they would be honest, and do what was right. There is no allegation by Austin of any prejudice flowing from the procedure used in selecting the alternate jurors, and none was shown by the evidence. Also important is the fact that the Wright County sheriff who selected the alternate jurors was not an investigative officer in this case, since the investigation was handled by law enforcement officers in Howell County where the robbery occurred. The procedure used to select the alternate jurors was in substantial compliance with the statute. The point has no merit.

Judgment and sentence affirmed.

TITUS, P.J., and FLANIGAN, J., concur.

      . Unless otherwise indicated, all references to statutes are to RSMo 1978, V.A.M.S.


text:
    Richard Dewey BEAVER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 13693.
    Missouri Court of Appeals, Southern District, Division One.
    April 9, 1985.
    Larry Maples, Asst. Public Defender, Joplin, for movant-appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   GREENE, Judge.

Richard Dewey Beaver entered pleas of guilty to criminal charges of escape from confinement, § 575.210, first degree robbery, § 569.020, and kidnapping, § 565.110, and was sentenced respectively to terms of five years, fifteen years, and five years, with the sentences to run concurrently.

While in custody and serving those sentences, Beaver filed a motion to vacate his convictions and set aside his guilty pleas pursuant to Rule 27.26. His motion, as later amended, alleged five grounds in its support, which were 1) lack of effective assistance of counsel, 2) the pleas were the result of duress and undue influence, 3) the trial court lacked jurisdiction to accept the guilty pleas since the robbery and kidnapping charges were pending in McDonald County, and the pleas to those charges were taken in Newton County, where the escape charge was pending, 4) the court failed to follow procedures of Rule 24.02 in accepting the guilty pleas, and 5) the court improperly assessed judgment of $26 against Beaver for the Crime Victim’s Compensation Fund.

The motion court held an evidentiary hearing, after which it filed findings of fact, conclusions of law, and a judgment denying all relief requested except the assessment of the $26 judgment.

On appeal, Beaver asserts the motion court erred in denying relief because 1) the trial court did not comply with Rule 24.02 before accepting the guilty pleas because it did not a) advise Beaver of the nature of the charges against him, b) did not advise him of the minimum and maximum punishments for the crimes in question, and c) did not determine if there was a factual basis for the pleas, and 2) Beaver was denied effective assistance of trial counsel because a) his attorney represented conflicting interests, and b) did not advise Beaver of the existence of a deposition of a potential witness which, if Beaver had known of it, might have resulted in his going to trial, rather than pleading guilty.

In its findings of fact, conclusions of law and judgment, the motion court ably addressed the effective assistance of counsel issue. However, the motion court did not discuss, and did not rule on the issue of, whether the trial court followed procedures mandated by Rule 24.02 before accepting Beaver’s guilty pleas. This being so, there is no final judgment in this case from which appeal will lie, as an important issue properly raised by Beaver was not ruled on by the motion court.

The cause is remanded to the circuit court of Newton County for entry of an amended judgment addressing all of the questions Beaver raised in his amended 27.26 motion, including, but not limited to, the question of whether the trial court, before accepting the guilty pleas, complied with the procedures set out in Rule 24.02. The amended judgment shall be fully supported by findings of fact and conclusions of law.

TITUS, P.J., and FLANIGAN, J., concur.

      . Unless otherwise indicated, all references to statutes are to RSMo 1978, V.A.M.S., and all references to rules are to Missouri Rules of Court, V.A.M.R.

      . The record indicates the robbery and kidnapping occurred in Newton County. Charges against Beaver for those two charges were filed in Newton County, but were transferred to McDonald County on change of venue. The escape was from the Newton County jail, and the escape charge was filed there. McDonald County and Newton County are in the same judicial circuit, and the trial judge who accepted the pleas was the circuit judge of that circuit.


author: DIXON, Judge.

text:
    Dale T. MERSMAN, Respondent, v. Howard E. O’NEIL, Cox Standard Service, Inc., Appellant, and Officer Stephen P. Hawkins and the Kansas City, Missouri, Board of Police Commissioners, Defendants.
    No. WD35925.
    Missouri Court of Appeals, Western District.
    April 9, 1985.

      Robert Ernest Gould, Gould & Moore, P.C., Kansas City, for appellant.
    David P. Hargrave, Hoffman, Hill & Hargrave, Kansas City, for respondent.
    Before PRITCHARD, J„ P„ and-SHAN-GLER and DIXON, JJ.
   DIXON, Judge.

Plaintiff recovered a jury verdict for $15,000 in damages in a malicious prosecution action against the defendants, Howard O’Neil, and Cox Standard Service, Inc. The award was for $5,000 actual damages and an additional $5,000 in punitive damages against each defendant. Defendants appeal, contending plaintiff did not make a submissible case against defendants on the issue of defendants having caused the plaintiffs arrest and prosecution. Defendants also complain the bracketed portion of the phrase, “occurrence [of the judicial proceedings] mentioned in evidence,” constituted an improper modification of MAI 4.01.

The lawsuit arose from an incident occurring at Cox Standard Service, Inc. Plaintiff Mersman had taken a car to the station for repair. Plaintiff and his wife went to the station in a pickup truck, and immediately upon their arrival, plaintiff’s wife drove the car away from the station, leaving plaintiff and the pickup truck at the station. A dispute arose concerning the amount of the bill and the nature of the repairs, and plaintiff refused to pay the bill. During the conversation that ensued between the manager of the station, Howard O’Neil, and plaintiff, O’Neil told plaintiff he was going to pay the bill or he would not get his car. O’Neil then realized that the car had been already removed. Plaintiff told O’Neil that if he wanted his money, to sue him. Plaintiff got in his pickup truck and started to drive away. O’Neil shouted after him, “You won’t get 4 or 5 blocks. I’ll have you arrested for stealing the car.” O’Neil then went to the city prosecutor for Kansas City, Missouri, and was directed to make a report at the police station. He went to the police station and made what was termed a walk-in report. A civilian employee of the police department took down the report on a form utilized by the police department for that purpose. In the course of so doing, she asked Mr. O’Neil who the suspect was and O’Neil described the plaintiff and gave his address. He identified the vehicle and gave its license number. O’Neil was then asked what had occurred and the recital appearing upon the report indicates that, after the dispute, plaintiff left the station with the car. O’Neil also stated the parts installed on the suspect’s car were worth $119.40. After consulting her form book, the police department employee described the crime on the report as “depriving victim of property by unlawfully removing it without the victim’s consent.” Directed by his sergeant to “work the report,” an officer of the Kansas City, Missouri, Police Department, accompanied by another officer, went to plaintiff’s home in Gladstone, Missouri, and advised plaintiff that they had a warrant for his arrest. They indicated to him that the arrest was for stealing parts, and that he had the alternative of going downtown and being booked and posting bond or being fingerprinted. The plaintiff chose to be fingerprinted and signed the general ordinance summons forms presented to him. The case was eventually dismissed by the Kansas City, Missouri, prosecutor.

Defendants initially raise the sub-missibility of plaintiff’s cause of action, asserting plaintiffs evidence does not support a finding by the jury that the defendants caused the arrest of the plaintiff. The issue is controlled by Lipari v. Volume Shoe Company, 664 S.W.2d 953 (Mo.App.1983). In Volume Shoe, a very comparable set of facts existed. In that case, Mrs. Lipari was in the Volume Shoe Store and tried on a pair of shoes of a certain size. After some discussion with a clerk, she left the store and the clerk determined that a pair of shoes of that size were missing and, after checking the cash register for a sale, assumed that they had been stolen. The clerk went to the parking lot, took Mrs. Lipari’s license number, and called the police. The police arrived and a report was made, indicating a pair of shoes had been stolen, directing the police’s attention to Mrs. Lipari as the suspect, and giving her license number and description. Neither the clerk nor the manager of the store directed that Mrs. Lipari be prosecuted, but a general ordinance summons was issued, charging her with larceny. On those facts, Volume Shoe holds that the evidence is sufficient to support a finding of the defendant’s causing the arrest and prosecution of the plaintiff Lipari. The court in Volume Shoe relied upon the designation by the manager and the clerk of Mrs. Li-pari as a person in the store trying on the particular size shoes and leaving the store shortly before the loss was discovered. The court notes that the defendants specifically directed police attention to Mrs. Lipari and gave her description and license number. Upon that basis, the court determined the issue of defendants’ causation of the arrest was submissible.

Plaintiff notes that the same incidents of identification of the suspect and statement of the supposed crime by the defendants as in Volume Shoe occurred in the instant case. The cases are comparable, in that no request for prosecution was made by the defendants here, nor those in Volume Shoe. Plaintiff further notes that the report given by the defendant O’Neil was erroneous in at least two respects, one of them of considerable significance. The report O’Neil gave to the police indicated that plaintiff Mersman removed the vehicle from the station. Actually, the vehicle had been taken by Mersman’s wife before the dispute arose. Additionally, the report to the police misstated the value of the parts. Subsequent proceedings disclosed that the parts portion of the bill was substantially less than that reported by O’Neil. Upon the authority of Volume Shoe, plaintiff’s cause of action was submissible upon the single claim of error levelled at the submission by the defendants.

The second claim of error by defendants is that MAI 4.01 was improperly modified by inserting after the word, “occurrence,” the phrase, “of the judicial proceedings against the plaintiff.” Defendant contends the instruction is clearly and presumptively erroneous, relying upon Missouri Approved Jury Instruction, 1981 Ed., page CXXVII, Gormly v. Johnson, 451 S.W.2d 45 (Mo.1970); Haymes v. Swan, 413 S.W.2d 319 (Mo.App.1967); Peak v. W.T. Grant Co., 409 S.W.2d 58 (Mo.1966); Clark v. McCloskey, 531 S.W.2d 36 (Mo.App.1975). The claim of error is predicated upon the evidence in the trial of plaintiff’s cause of action of the small claims court proceedings instituted by defendant, Howard O’Neil. The small claims court proceedings were extensively and fully developed in the evidence. This concurrent proceeding for recovery of the value of the bill was not simply referred to casually, but was belabored at length. The proceedings shown to the jury included continuances, the evidence presented, the participation of the lawyers, the amount of the bill, and the amount of the judgment. Given these circumstances, the jury might well have been led to believe that the instruction permitted them to give the plaintiff damages for the judicial proceedings in the small claims court, as well as the judicial proceedings in the municipal court. Under the circumstances, it is impossible to find that the error was nonprejudicial. Because of error in the giving of that instruction, the cause must be reversed and remanded for a new trial.

During the argument of this cause, the court expressed a concern that the recent case of Sanders v. Daniel International Corporation, 682 S.W.2d 803 (Mo. banc 1984), might have a bearing upon the issues in the case. The parties were granted leave to file supplemental briefs concerning the applicability of Sanders to the instant case. The parties have diligently briefed the issue — and particularly the retroactive aspect of Sanders — but because of the nature of the error claimed by the defendants, Sanders is not controlling in the instant case. As the parties concede in their briefs filed here, Sanders would be given retroactive effect, a conclusion supported by Weniger v. Famous-Barr Company, 686 S.W.2d 563 (Mo.App.E.D.1985), and Carlton B. Shaffer v. Sears, Roebuck and Company, et al., 689 S.W.2d 683 (Mo.App.E.D. 1985), as well as the recent opinion of this court, Simpson v. Revco Drug Centers of Missouri, Inc., No. WD34983 (Mo.App. W.D. March 12, 1985). The parties are advised by the briefing with respect to the applicability of Sanders upon the retrial of this case. The issue of whether the plaintiff made a submissible case under the ruling of Sanders is not before us on this appeal. Thus, a review of plaintiffs evidence to determine submissi-bility under Sanders is not required. The cause is reversed and remanded for a new trial.

All concur.


author: PER CURIAM:

text:
    Jimmy Ray OWENS, Appellant, v. Paul S. McNEILL, Jr., Substituting for Richard C. King, Director of Revenue State of Missouri, Respondent.
    No. WD 36328.
    Missouri Court of Appeals, Western District.
    April 9, 1985.
    J.D. Baker, Osceola, for appellant.
    William Webster, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, C.J., and SOMER-VILLE, and MANFORD, JJ.
   ORDER

PER CURIAM:

Appeal from judgment affirming revocation of motorist’s driver’s license under Section 577.041.1, RSMo Supp.1984, for refusal to submit to a breathalyzer test.

Affirmed. Rule 84.16(b).


author: PREWITT, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerry Ray MITCHELL, Defendant-Appellant.
    No. 13797.
    Missouri Court of Appeals, Southern District, Division Three.
    April 11, 1985.

      John D. Ashcroft, Atty. Gen., Mark A. Richardson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Beth L. Moutrie, Sp. Asst. Public Defender, Doniphan, for defendant-appellant.
   PREWITT, Chief Judge.

Defendant was convicted of burglary in the first degree and sentenced as a persistent offender to twenty-five years’ imprisonment. He presents four points relied on which we consider in the order stated.

Defendant contends in his first point that the trial court erred in failing to quash the amended information on which he was tried. It charged that defendant entered the premises “for the purpose of committing sexual abuse in the third degree therein” and did not further describe that intended act. The information followed MACH-CR 23.50 and § 569.160, RSMo 1978. Defendant claims it should have been quashed as it failed to apprise him of the intent element of burglary because it did not set forth the facts constituting the crime of sexual abuse in the third degree. Defendant states in his brief, “Unlike the crime of stealing, for example, the crime of sexual abuse in the third degree is not one easily recognizable or understandable upon sight when read from an information.”

Specific factual allegations are required when the statute in which the charge is based uses generic terms to describe a variety of factual formulations by which the offense may be committed. State v. Mondaine, 646 S.W.2d 372, 374 (Mo.App.1982). See also State v. Eckard, 655 S.W.2d 596 (Mo.App.1983).

Sexual abuse in the third degree is subjecting “another person to whom he is not married to sexual contact without that person’s consent.” § 566.120.1, RSMo 1978. Sexual contact is “any touching of the genitals or anus of any person, or the breast of any female person, or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.” § 566.010.1(3), RSMo 1978. Although the manner of touching may vary, the crime can only be committed one way. Thus, it is not subject to the “generic” rule on which defendant relies.

Intent is rarely shown by direct evidence and usually is inferred from the circumstances. Generally, absent an admission, there would be no direct evidence of intent and it would be impossible to specifically know how a burglar planned to commit the intended crime. Often the offender would not know the specifics as to how it would be carried out before entering.

Rule 23.01(b) states what an indictment or information shall contain. As the information here followed the approved charge it complies with the requirements of Rule 23.01(b). Rule 23.01(e). Cf. also State v. Reese, 687 S.W.2d 635 (Mo.App.1985); State v. Gilmore, 617 S.W.2d 581, 584 (Mo.App.1981); State v. Glover, 554 S.W.2d 457, 458 (Mo.App.1977). Defendant was sufficiently apprised of what he was charged with that he could have defended against it. Point one is denied.

Defendant contends in his second point that the trial court erred by denying defendant’s challenges for cause of three veniremen who answered affirmatively to “Are there any of you that believe that a man’s girl friend would probably tell a lie for him under most circumstances?” Defendant contends that these persons did not enter upon jury service with an open mind, free from bias and prejudice.

Of course, a defendant’s girl friend would be more likely to tell a lie to benefit him than she would for a stranger, but perhaps not if she believed he committed a crime intending to have sexual contact with someone else. Also, the question asked the jurors did not cover the situation where a girl friend would be under oath and subject to the penalties of perjury. Whether those jurors would have thought that she “would probably tell a lie” under those circumstances is not shown in the record. By these comments we are not suggesting that the initial question asked of the jurors on this subject was proper, or that by narrowing the question to a trial setting it would have been made proper. The jurors responded negatively when asked if they would “have trouble believing the testimony of a man’s girl friend if it conflicted with other testimony, if you thought she was telling the truth?”

The trial court has wide discretion in determining the qualifications of a prospective juror, and its ruling will not be disturbed on appeal unless it constitutes a clear abuse of discretion. All doubt shall be resolved in favor of the trial court because it is in a better position to determine a challenge for cause than an appellate court. State v. Hemphill, 669 S.W.2d 633 (Mo.App.1984).

The question asked of the jurors did not establish that they could not give due consideration to defendant’s girl friend’s testimony. The trial judge was in a better position than we are to determine if they could fairly determine the facts, and we cannot say that he clearly abused his discretion. This point is denied.

Defendant contends in his third point that there was insufficient evidence to prove the crime as no evidence was presented showing defendant’s purpose in entering the residence. Defendant asserts that as there was no evidence showing that defendant intended to commit sexual abuse in the third degree, his motion for judgment of acquittal should have been sustained.

The intent element of burglary is generally not susceptible to direct proof. State v. Simpson, 670 S.W.2d 577, 579 (Mo.App.1984). In reviewing to determine if the evidence was sufficient to support the charge, we accept as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregard all evidence and inferences to the contrary. State v. Morrison, 659 S.W.2d 346, 347 (Mo.App.1983). On this standard the evidence was sufficient.

On August 1,1983, at approximately 2:00 a.m., Cecelia West was asleep in bed alone, in a mobile home. Also in the mobile home were her mother, father, and her son. At that time she was awakened by defendant touching her “between the legs”. He was naked, sitting on the floor. She knew defendant and asked him how he got in. He told her to forget about that, and then she told him to get out. Defendant had not been given permission to enter the mobile home, or to touch her as he did. He kept sitting there, so West left. She went down the hallway and woke up her mother, and then went back to her room as defendant was putting on his pants. Defendant then came out of the room and left the mobile home through one of its doors. The screen had been pushed off and locks on that door broken. West knew defendant because her brother lives with defendant’s girl friend’s family about two miles away. Defendant was living there also. About two weeks previously he had come by her mobile home and asked her to go out with him and his girl friend. She declined.

Defendant may have had a purpose beyond the touching, but the jury could have reasonably found he entered with at least that in mind. There was no indication of any purpose other than sexual. How he awoke Mrs. West indicates that defendant intended to, and perhaps did, commit sexual abuse in the third degree. We conclude that the evidence was sufficient to show defendant’s intent. Point three is denied.

For his fourth point defendant asserts that the trial court erred in allowing a rebuttal witness to testify because he had not been disclosed to defendant. Defendant claims that a proper motion for discovery had been made by him requesting the names of all persons who respondent intended to call as a witness, and this witness was not disclosed in its response.

At trial the objection to this witness was because he was not endorsed on the information. The relevant proceedings from the transcript are set forth below. Both in her first statement and last one on this question the attorney for defendant objects because the witness was not endorsed. Mention is also made that he was not mentioned in discovery, but that appears to be informational or to show prejudice. It was not part of the objection. Except for plain error, we only consider matters presented to the trial court. State v. Fields, 668 S.W.2d 257, 258 (Mo.App.1984).

There is no merit to the contention that the witness had to be endorsed. Whether a person may be a proper rebuttal witness is determined by the trial court without regard to the witness endorsement requirement. State v. Mitchell, 622 S.W.2d 791, 797 (Mo.App.1981). However, the rules of discovery prescribe that an undisclosed prosecution witness may not be called to rebut defendant’s alibi. State v. Lutjen, 661 S.W.2d 845, 849 (Mo.App.1983). See also State v. Sanner, 655 S.W.2d 868, 878 (Mo.App.1983).

Other than defendant’s attorney’s statement in the discussion of the rebuttal witness set out marginally, the record does not indicate what discovery was undertaken or how respondent responded to it. Respondent has not admitted that it violated the discovery rules. As there is nothing in the record showing that it did, even if the failure to disclose the witness was properly raised or is plain error, a violation of the discovery rules is not established.

Further, assuming that the state did not properly disclose the witness, no prejudicial error or plain error was shown. When proper disclosure is not made, the trial court can grant a continuance, exclude the evidence, or enter such other orders as it deems just under the circumstances; the action taken being within the discretion of the trial court. State v. Mansfield, 668 S.W.2d 271, 273 (Mo.App.1984). It is an abuse of discretion to fail to impose a sanction only where the admittance of the evidence results in fundamental unfairness to defendant; the notion of fundamental unfairness is to be measured by whether the evidence or the discovery thereof would have affected the result of the trial. Id. A defendant must show that the failure to disclose the evidence resulted in fundamental unfairness or prejudice to his substantial rights. Id. No such showing and no abuse of discretion is established here. The point is denied.

The judgment is affirmed.

CROW, P.J., and TITUS, FLANIGAN and MAUS, JJ., concur.

       MR. SCHULLER: Your Honor, the State calls as a rebuttal witness at this time, Gary Miller.
      MISS MOUTRIE: Judge, I object to calling Mr. Miller as a rebuttal witness as Mr. Miller was never endorsed as a witness. I never received any notice that Mr. Miller would testify here today. No formal notice whatsoever in discovery or later endorsement as a witness.
      MR. SCHULLER: Your Honor, I believe by definition a rebuttal witness is somebody you don’t know if you’re going to call until after the evidence in the case is presented. I believe the law is that rebuttal witnesses don’t need to be endorsed on the Information.
      MISS MOUTRIE: Judge, you can endorse witnesses and have no intention of calling them but there should be some notice whether or not this witness is available or whether this witness may be called. You certainly don’t have to say I’m going to call this witness and have to call them but I believe all possible witnesses should be endorsed or should be disclosed prior to trial.
      MR. SCHULLER: There’s no way to know who all could possibly testify. I thought she would testify in regard to her prior testimony, she didn’t, and I'm going to have to call him as a rebuttal witness.
      MISS MOUTRIE: There’s always that possibility that a rebuttal witness is going to have to be called and you know ahead of time who could be a rebuttal witness. It is simple to have a witness endorsed ahead of time.
      MR. SCHULLER: I stand on my statement.
      THE COURT: The objection is overruled.


author: PER CURIAM.

text:
    Mary L. JENNEMANN, Plaintiff-Appellant, v. David F. JENNEMANN, Defendant-Respondent.
    Nos. 48198, 47755 and 47756.
    Missouri Court of Appeals, Eastern District, Division One.
    April 16, 1985.

      Susan M. Hais, Clayton, for David Jenne-mann.
    George D. Johnson, Clayton, for Mary Jennemann.
   ORDER

PER CURIAM.

The three appeals from the judgment on motions to modify a decree of dissolution have been consolidated. All issues asserted on these appeals involve matters solely within the discretion of the trial court whose findings are supported by substantial evidence and are not against the weight of the evidence. No precedential purpose would be served by written opinion. The judgment of the trial court is affirmed pursuant to Rule 84.16(b).

Appeal No. 48198 is dismissed pursuant to Rule 81.06.

Wife’s motion to strike is overruled.

Wife’s motion to dismiss is overruled.

Husband’s motion to dismiss is overruled.

Husband’s motion to make more definite and certain is overruled.


author: DROWOTA, Justice.

text:
    BROWN OIL CO., INC., Plaintiff-Appellee, v. Lavern JOHNSON, et ux., Defendants-Appellees, and Commissioner of Revenue, State of Tennessee, Defendant-Appellant.
    Supreme Court of Tennessee.
    April 29, 1985.
    J. Robert Walker, Asst. Atty. Gen., Nashville, (WJ. Michael Cody Atty. Gen. and Reporter, Nashville, of counsel), for defendant-appellant.
    Edwin Z. Kelly, Jr., Jasper, for plaintiff-appellee.
   OPINION

DROWOTA, Justice.

This is a suit by Brown Oil Company to enforce a judgment lien against Lavern Johnson and his wife, Janie Johnson. The Johnsons are also substantially indebted to the Department of Revenue for unpaid sales taxes. At issue is the priority between Brown Oil and the Department of Revenue regarding the wife’s share of the proceeds from an insurance settlement. The chancellor held that the duly perfected judgment lien of Brown Oil Company had priority and the Commissioner of Revenue has appealed.

Lavern Johnson is registered with the Department of Revenue for the State of Tennessee in connection with the operation of grocery stores in Sequatchie County and Marion County, known as Big J Supermarket and Little J No. 3. The Department of Revenue filed notices of state tax liens against Lavern Johnson with the Registers of Sequatchie County and Marion County, Tennessee, respectively, in March of 1979. Mr. Johnson’s tax liability for both stores was in excess of $100,000.

In September of 1982 Mr. Johnson and the Department of Revenue entered into agreements which allowed Mr. Johnson to pay the delinquent taxes in installments. For the Big J Supermarket, $500 was to be paid immediately, $500 was to be paid monthly for the next eleven months, with a final payment of $50,186.61. A similar agreement was executed regarding the other store: $4,000 was to be paid immediately, $500 was to be paid monthly for the next eleven months, with a final payment of $12,899.91. At the bottom of each agreement was the following assumption of liability provision, signed by Mr. Johnson’s wife, Janie Johnson, who had no ownership interest in either business location:

I, TJanie Johnson] , hereby assume, in consideration for the above stated agreement of the Tennessee Department of Revenue to forego any rights it has to immediate collection by levy of the indebtedness of the owner as shown above, the debt of T$59,186.61 & $22,399.91, respectively!, the above stated owner, and I further agree that I shall be subject to all terms and conditions set out in the above stated agreement and that I shall be jointly and severally liable for such debt.
/s/ Janie Johnson

At the time these agreements were entered into, no tax assessment had been made by the Department of Revenue against Mrs. Johnson.

A payment schedule introduced at trial indicated that subsequent to September, 1982, only one $500 payment had been received to liquidate the debt of Big J Supermarket and that only three $500 payments had been received on the amount owed from Little J No. 3. The Department of Revenue filed a notice of state tax lien against both Lavem Johnson and Janie Johnson on September 21, 1982, in Marion County. A similar notice was filed in Se-quatchie County the following day.

Brown Oil Company, Plaintiff herein, obtained a judgment on July 29, 1983, in the Circuit Court of Marion County against Lavem and Janie Johnson in the amount of $11,057.58. Certified copies of this judgment were filed in Marion County on July 29, 1983, and in Sequatchie County on August 3, 1983. As of the date of trial in the present lawsuit, the amount due Brown Oil Company on the judgment, including interest, was $12,048.55.

This lawsuit was filed by Brown Oil Company to determine the respective priorities with respect to an $82,000 insurance settlement paid the Johnsons as the result of a fire loss. The South Carolina Insurance Company paid the proceeds into court and requested the court to determine the rights of the parties. In addition to the Johnsons, several other defendants were parties to the suit. Most of these other defendants possessed liens on real estate owned by the Johnsons. These liens were admittedly superior to the claims of Brown Oil and the Department of Revenue and were satisfied out of the insurance proceeds by agreed order. At issue before the trial court was the disposition of $52,592.00, the balance of the insurance proceeds which were owned by Lavern and Janie Johnson as tenants by the entirety. After payment of court costs and attorney’s fees associated with the insurance settlement, the chancellor divided the remaining funds into two equal shares, one to be designated the Lavern Johnson share and the other the Janie Johnson share. The chancellor awarded the entire Lavem Johnson share to the Department of Revenue. The judgment lien of Brown Oil Company was satisfied out of the Janie Johnson share, with the remainder to be held for the protection of the Department of Revenue. The Department of Revenue appeals that portion of the judgment that awarded $12,048.55 of the Janie Johnson share to Brown Oil Company.

The dispositive issue is whether the Department of Revenue has a valid tax lien against Janie Johnson by virtue of the assumption of liability agreement' that she signed in 1982. The Defendant contends that Janie Johnson, by assuming the tax liability of her husband (the taxpayer), became a “person liable to pay any state tax” within the meaning of the Tax Enforcement Procedures Act, T.C.A. § 67-1-1403(a). Pursuant to this statutory scheme, the State has a lien on property then owned or subsequently acquired by any person liable for any state taxes. The lien continues until the taxes are fully paid. A notice of tax lien is required to be filed in the county where the property is located. The lien created by the statute is superior to all other liens except those specifically noted in T.C.A. § 67-l-1403(c). None of the exceptions, which are mostly for security interests and other tax liens, are relevant to the present priority dispute. See generally T.C.A. § 67-1-1401 et seq. The notice of state tax lien was filed almost a year before the judgment of Brown Oil Company was recorded.

The Plaintiff argues that Mr. Johnson’s tax liability arose from the Retailers’ Sales Tax Act, T.C.A. §§ 67-6-101 et seq. It is Plaintiff’s position that only Mr. Johnson, and not Mrs. Johnson, falls within the definition of “dealer” contained in T.C.A. § 67-6-102(4), and that only a person engaged as a dealer is liable to pay state sales tax. Since Janie Johnson was not a dealer and not considered to be a taxpayer by the Department of Revenue, Plaintiff reasons that there was never any lien for taxes created against her.

In deciding whether the State had a valid lien for taxes against Janie Johnson, we must determine the legal effect of the “assumption of liability” agreement signed by Mrs. Johnson. The chancellor held that Mrs. Johnson’s assumption of liability was a contractual obligation only and did not encumber her property interests to the extent of authorizing a tax lien under the Tax Enforcement Procedures Act. He therefore concluded that the notices of tax liens filed by the Department of Revenue following her execution of the assumption of liability agreement in 1982 did not affect her property interests.

Section 3 of the Tax Enforcement Procedures Act provides as follows:

If any person liable to pay any state tax or fee administered by the Commissioner of Revenue neglects or refuses to pay the same, the amount (including additionally incurred taxes, fees, penalties, interest, and costs) shall be a lien in favor of the state.

T.C.A. § 67-l-1403(a) (emphasis added).

In the agreement between Janie Johnson and the Department of Revenue, Mrs. Johnson agreed to be “jointly and severally liable” for the tax debt of her husband. The Plaintiff’s contention that this agreement was lacking in consideration is without merit. In the agreement the State agreed to forego its right to immediate collection by levy on Mr. Johnson’s property. It is well-settled that consideration exists when the promisee does something that it is under no legal obligation to do or refrains from doing something which it has a legal right to do. By foregoing its legal right to collection by levy, the Department of Revenue refrained from doing something it had a legal right to do and therefore the assumption of liability agreement was supported by consideration.

By agreeing to be “jointly and severally liable” for the tax liability of her husband, Mrs. Johnson became a “person liable to pay any state tax” within the meaning of T.C.A. § 67-l-1403(a). Therefore, a valid lien on Mrs. Johnson’s property interests was created when the assumption of liability agreement was entered into by Mrs. Johnson and the Department of Revenue. When this lien against both Mr. and Mrs. Johnson was filed in the appropriate places, the Department of Revenue received priority as to all other liens except as provided by T.C.A. § 67-l-1403(c), which is not relevant here. When Brown Oil Company recorded its judgment lien almost a year later, it had notice of the State’s superior lien. To hold as did the chancellor, that no lien was created against Mrs. Johnson, is to deny the assumption of liability agreement of any legal effect whatsoever. By reading the Tax Enforcement Procedures Act in conjunction with the assumption of liability agreement, the only conclusion to be reached is that the State’s lien was superior as of the date of perfection, the date of filing in Marion and Sequatchie Counties, respectively. The judgment lien of Brown Oil Company was junior to the lien of the Department of Revenue and therefore the tax lien must be satisfied before Brown Oil Company is entitled to any of the insurance proceeds. To the extent that the chancellor held otherwise, he was in error. We are unable to understand how the chancellor could give Plaintiff lien priority over the Department of Revenue. The chancellor satisfied Plaintiff’s judgment lien out of the wife’s share of the proceeds and then retained the remainder of the wife’s share for the protection of the State. This suggests to us that the chancellor believed the State had a lien but that Plaintiff’s lien had priority. This result is not consistent with T.C.A. § 67-1-1403. Since the tax lien was perfected first, it was entitled to priority. We find unpersuasive Plaintiff’s argument that the Department of Revenue had no lien against Mrs. Johnson because she was not a “dealer” within the meaning of the Retailers’ Sales Tax Act, T.C.A. § 67-6-102(4). While she was not a “dealer” for purposes of the original tax assessment, she agreed to be jointly and severally liable for the tax delinquency when she signed the assumption of liability agreement. While the specific language of the agreement did not indicate a suretyship agreement, the effect is similar to that of suretyship. She agreed to combine her assets with those of her husband for the purpose of discharging her husband’s tax liability. Although we do not rely on Exchange Mutual Ins. Co. v. Olsen, 667 S.W.2d 62 (Tenn.1984), and In Re Estate of Darwin, 503 S.W.2d 511 (Tenn.1973), cited by the Commissioner of Revenue, those cases are certainly consistent with the result reached in the case at bar.

The judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion. Costs on appeal are assessed against Brown Oil Company.

COOPER, C.J., and FONES, BROCK and HARBISON, JJ., concur.


author: MATHERNE, Special Judge.

text:
    Peggy Joyce HARDIN, Plaintiff-Appellee, v. Kenneth Everett HARDIN, Defendant-Appellant.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Aug. 5, 1983.
    Permission to Appeal Denied by Supreme Court Dec. 19, 1983.

      Robert L. Ogle, Donna J. Orr, Sevierville, for defendant-appellant.
    James D. Banks of Banks & Campbell, Knoxville, for plaintiff-appellee.
   MATHERNE, Special Judge.

This is a divorce action in which the plaintiff wife was granted a divorce on grounds of cruel and inhuman treatment. Defendant husband has appealed, asserting error in the trial court’s division of property and award of attorney’s fees. We find no substantial error in the proceedings below and affirm.

The parties, Peggy Joyce Key Hardin and Kenneth Everett Hardin, were married for the first time in 1971. This marriage ended in divorce on February 9, 1979. The parties remarried on August 15, 1979. They separated early in 1981 and Mrs. Hardin filed for divorce on September 8, 1981. Mr. Hardin answered and counterclaimed for divorce. The countercomplaint was voluntarily dismissed at trial and, after hearing the testimony of the parties and their witnesses, the trial court awarded Mrs. Hardin a divorce on grounds of cruel and inhuman treatment. Mrs. Hardin was also awarded custody of the parties’ two minor children, $400 per month child support, various personal property, and a home. Mr. Hardin was given two automobiles, various personal property, and $5,000 in cash, to be paid upon the youngest child reaching majority, for his interest in the house.

The primary issue both at trial and on appeal is the proper division of the parties’ interest in a home. Plaintiff owned a home when the parties were married in 1971. She had just recently purchased the home when she and defendant were married and they made payments on this home out of their joint funds. In 1972, this house was exchanged for a second house. This second home was in the names of both parties. The second home was later sold and the proceeds were used to buy a lot on Union Valley Road in Sevier County. A construction loan was obtained to build a house. The foundation for this house had been dug when defendant left home. This first marriage ended in divorce on February 9, 1979. Plaintiff was awarded a divorce by default and full title to the Union Valley Road property was vested in her by the decree. Plaintiff and the parties’ three children moved into the new home in late May of 1979. Defendant moved back in around June 15 and the parties were remarried on August 15, 1979. When the construction loan was converted to a permanent mortgage, defendant signed the note and deed of trust. Payments on this mortgage were made out of defendant’s individual account until shortly before the parties separated for a second time early in 1981. As noted above, the trial court awarded the house to Mrs. Hardin. Mr. Hardin was awarded $5,000 for his interest in the house to be paid upon the youngest child, now age six, reaching majority.

The first issue raised on appeal is whether the trial court erred in excluding defendant’s testimony as to the value of the house. Assuming arguendo that defendant had a sufficient equitable interest in the house to qualify his testimony, see Wall v. Thalco, Inc., 614 S.W.2d 803 (Tenn.App.1981); Hayes v. Cumberland Builders, Inc., 546 S.W.2d 228 (Tenn.App.1976), the total value of the home had little relevance to the issue of defendant’s interest in it. As will be discussed below, there was no error in the trial court’s division of the property and, under the circumstances, any error with regard to defendant’s testimony was harmless. Tenn.R.App.P. 36(b).

The second issue raised by defendant is that the trial court erred in awarding him $5,000 rather than a half interest in the house. Defendant’s theory is that we should ignore the first divorce decree and treat the parties as if they had been continually married since 1971. This we cannot do. In addressing a similar argument in the unreported case of Viar v. Viar (Tennessee Court of Appeals, Western Section, December 9, 1981, no application for permission to appeal filed), the Western Section of this court said:

[W]e deem it proper to treat the second marriage of the same parties as we would treat any other marriage. The parties entered the second marriage with full knowledge of who was the legal owner of the various parcels of land. This court is without authority to review the distribution of the property of the first decree.... We accept that division and treat each party coming into the second marriage as the owner of the property as allowed in the first decree.

We agree that this is the proper approach. Thus, plaintiff entered the second marriage as full owner of the Union Valley Road house.

Tennessee Code Annotated § 36-825 (1977) authorizes a court having jurisdiction of a divorce action to, “in its discretion, adjust and adjudicate the respective rights and interests of the parties in all jointly owned property, so as to preserve for each or either party, that portion of such jointly owned property as may be just and reasonable under the facts and circumstances of the case.” Id. “Jointly owned” property within the meaning of this section includes “every legal or equitable interest recognized at law or by equity in any kind of property in the name of either party, or both parties, which either party is able to establish by competent evidence.” Jones v. Jones, 597 S.W.2d 886, 887 (Tenn.1979). “Circumstances of acquisition, maintenance, or improvement may ... create equities which the Court is authorized to adjust as an incident to the divorce decree.” Rains v. Rains, 58 Tenn.App. 214, 428 S.W.2d 650, 657 (1968). The determination of what property is jointly owned and the value of a party’s interest is a question of fact. See Langford v. Langford, 220 Tenn. 600, 421 S.W.2d 632 (1967). As such, the trial court’s findings are entitled to a presumption of correctness on appeal. Tenn.R.App.P. 13(d). In the present case, the trial court valued defendant’s interest at $5,000, the approximate reduction in the principal indebtedness on the house during the parties’ second marriage. The evidence supports this determination. The manner of compensation for that interest depends on several factors, see Fisher v. Fisher, 648 S.W.2d 244 (Tenn.1983), and rests within the sound discretion of the trial court. Tenn.Code Ann. § 36-825 (1977). We find no abuse of that discretion in this case.

The final issue raised on appeal is the trial court’s awarding of attorney’s fees to plaintiff. The trial court ordered defendant to pay one-half of plaintiff’s attorney’s fees. The trial court has wide discretion in this matter. Connors v. Connors, 594 S.W.2d 672 (Tenn.1980); Hensley v. Hensley, 631 S.W.2d 131 (Tenn.App.1981); Ligon v. Ligon, 556 S.W.2d 763 (Tenn.App.1977); Crouch v. Crouch, 53 Tenn.App. 594, 385 S.W.2d 288 (1964); Raskind v. Raskind, 45 Tenn.App. 583, 325 S.W.2d 617 (1959); Marmino v. Marmino, 34 Tenn.App. 352, 238 S.W.2d 105 (1950). There was no abuse of discretion in this case.

The judgment of the court below is affirmed, and this cause is remanded to the trial court for the enforcement thereof. The cost in this court is adjudged against the appellant for which execution may issue, if necessary.

PARROTT, P.J., and FRANKS, J., concur.