source: Caselaw Access Project

author: BURDOCK, Justice.

license: Public Domain

text:
    A. COPELAND ENTERPRISES, INC. & Popeyes Famous Fried Chicken, Inc., Appellants, v. Charles W. TINDALL, James E. Bradshaw & Tri-Chick, Inc., Appellees.
    No. 2-84-132-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 24, 1985.
    Thompson & Knight, Timothy R. McCormick, Dallas, for appellants.
    Watson, Ice, McGee, Morgan, Hughes & Liles, J. Michael Liles and James M. Whit-ton, Fort Worth, for appellees.
    Before ASHWORTH, BURDOCK and HILL, JJ.
   OPINION

BURDOCK, Justice.

Appellants, plaintiffs below, appeal the trial court’s dismissal of their suit against appellees for want of prosecution.

We affirm.

Appellants, A. Copeland Enterprises, Inc. and Popeyes Famous Fried Chicken, Inc., filed suit against appellees, Charles W. Tin-dall, James E. Bradshaw, and Tri-Chick, Inc., on May 1, 1979, seeking recovery under a sworn account and damages for breach of a franchise agreement. In accordance with a long-standing local custom, the district clerk mails a court docket to all interested attorneys and law firms setting forth the cases set to be tried the following month. This court docket also contains a list of eases that are set to be dismissed and cases that have been dismissed. The cases on the court’s docket are listed by name, number, and name of attorney or law firm representing the respective parties. The evidence revealed that the secretary from the law firm representing appellants, who was responsible for the firm’s docket, received the court docket for February, 1984, on January 10, 1984. The court docket listed this case, which was circled by the secretary, as being set for dismissal on February 3, 1984, unless removed from the list by the trial judge. The March court docket was initialed by the same secretary as received on February 14, 1984, and it showed the order of dismissal for this case. This reference to the case was also circled by the secretary. The secretary testified that she never notified any of the attorneys in the firm about the court’s intention to dismiss and the order of dismissal for want of prosecution because she assumed the matter had been settled since she could not match the case with a specific attorney in the firm.

Unaware of the dismissal, appellant’s attorney sent a letter to the court clerk on March 30,1984, requesting that the case be set for trial during the week of July 16, 1984. On April 5, 1984, the court clerk responded to appellant’s request in a handwritten note which stated that the case had been dismissed for want of prosecution on February 3, 1984.

Appellants then filed a motion for reinstatement or, alternatively, a new trial on April 9, 1984. The trial court denied the motion on May 4,1984, based on its conclusion that it lacked jurisdiction to reinstate the case since sixty-five days had passed between the date of the order of dismissal and the motion to reinstate. In its findings of fact, the trial court also determined that appellants’ failure to appear was not intentional but was due to accident or mistake.

On appeal appellants urge three points of error contending that: (1) the trial court erred in refusing to reinstate the case because neither appellants nor their attorney received notice or had actual knowledge of the dismissal; (2) the notice of dismissal in the court docket received by the law firm was not sufficient to satisfy constitutional due process requirements; and (3) the trial court erred in refusing to reinstate the case because the court found the failure to appear was not intentional or the result of conscious indifference but was due to accident or mistake.

Our initial inquiry is whether appellants’ counsel received adequate notice of the trial court’s intention to dismiss the case for want of prosecution and/or the order of dismissal. In connection with that question we must also examine the meaning of the phrase “attorney of record” in terms of notice in this situation.

This case is governed by TEX.R.CIV.P. 165a which sets forth the circumstances under which a case may be dismissed for want of prosecution. A case that has been dismissed for want of prosecution may be reinstated by the trial court, under rule 165a(2), any time within thirty days from the date the order of dismissal was signed if there was notice of the dismissal, or if there was no notice within twenty days after the order was signed, the trial court has thirty days from the date of actual knowledge of the dismissal to reinstate the case. Harris County v. Miller, 576 S.W.2d 808, 810 (Tex.1979); TEX.R.CIV.P. 306a(3) and (4). If we find that appellants received notice of the order, then the time periods set forth in TEX.R.CIV.P. 306a(3) will be applicable. If we determine that appellants did not receive adequate notice of the dismissal, then rule 306a(4) must be applied.

We will address appellants’ first two points of error together since they both involve the issue of notice. Appellants contend that actual notice or knowledge of dismissal must be furnished to the litigants and their attorney of record pursuant to rules 165a and 306a.

We fail to see that either rule 165a or 306a requires actual notice or knowledge of dismissal. Appellants rely on Harris County, 576 S.W.2d at 808, in support of their position that actual notice is required. The issue examined by the court in Harris County was whether the notice received must be notice of the court’s intention to dismiss or notice of the actual order of dismissal. Id. at 810. Although the court speaks of actual dismissal, at no time does it state that actual knowledge is required. The court merely held that either notice of the intention to dismiss or notice of the order of dismissal within the twenty day time period is sufficient. Id. at 810.

We have not found any authority, either in case law or the rules of civil procedure, to support appellants’ contention that actual knowledge of dismissal is required. Since we have concluded that actual knowledge of dismissal is not required, we must next determine whether the information received by the law firm’s secretary was sufficient to apprise appellants of the court’s intention to dismiss and the order of dismissal so as to constitute notice.

In support of their contention that they did not receive adequate notice, appellants rely on Davis v. Laredo Diesel, Inc., 611 S.W.2d 943 (Tex.Civ.App.—Waco 1981, writ ref’d n.r.e.). In Davis, a notice of docket call, in the form of a letter, was mailed, generally addressed, to the attorneys in the area informing them that all cases filed prior to a specific date were set to be dismissed for want of prosecution. The court held that this docket call did not provide fair notice to the attorneys because it contained no reference to the case numbers or case styles of the cases set for dismissal. Davis, 611 S.W.2d at 947.

We can easily distinguish Davis on the facts. In the instant case, both the February and March court dockets received by the law firm’s secretary specifically listed the case number, case style, and the name of the firm representing appellants. In addition, the secretary, who had worked at the firm for ten years, was aware of and had circled this information. She admitted that the court docket was her responsibility and that when she had been unable to identify the attorney handling the case she just assumed it had been settled and never notified any attorney in the firm. It is also important to note that this form of notice (i.e. docket sheets) is the usual method employed by the district clerk and was not new or unfamiliar to the secretary or the law firm. Further, the secretary received two notices, a notice of intention to dismiss and notice of the order for dismissal, and so had ample opportunity to notify someone in the firm of the action being taken on this case.

We find that the docket sheets were sufficiently specific to satisfy constitutional due process requirements since it is undisputed that the notices specifically listed the case number, style, firm name, and were received by the secretary in charge of the docket. See State v. Rotello, 671 S.W.2d 507, 508 (Tex.1984) (plaintiffs charged with notice of court’s intention to dismiss where attorney had knowledge of local rule providing for dismissal of cases over two years old). This notice was not unfair and was received within the time period for reinstatement set forth in rule 165a(2).

Although the notices were sufficient, the question of whether appellants’ attorney of record received notice depends on our construction of the term “attorney

of record”. TEX.R.CIV.P. 10 defines “attorney of record” as “one who has appeared in the case, as evidenced by his name subscribed to the pleadings or to some agreement of the parties filed in the case.”

Appellants argue that this term should be strictly construed to mean the named attorney on the pleadings, rather than the law firm. The record reflects only two pleadings which were signed by appellants’ counsel. The motion to reinstate listed the firm name beneath which it was signed “By (attorney’s name)”. The other instrument was a request to enter findings of fact which was signed by the attorney first and contained the name of the firm below his signature.

The facts in this case are analogous to the facts in Bentley v. Rio Grande Development Group, 607 S.W.2d 319 (Tex.Civ.App.—Fort Worth 1980, no writ). In Bentley, the certified mail receipt for a plea of privilege was signed by a law librarian who was employed by eight firms sharing the same library. This court held in Bentley that:

Receipt of the plea of privilege occurs when the agent of the attorney of record actually receives the copy.... To hold the opposing party accountable for the office procedures and practices of the party seeking to controvert the plea of privilege would be unreasonable and illogical. The copy of the plea of privilege was received by the attorney of record when it was signed for by his agent, the law librarian ... The mail was correctly directed to the firm listed as the attorney of record. [Emphasis added.] Id. at 321.

Logic dictates that an attorney who enters an appearance in a lawsuit does so on behalf of his firm as well as himself. When appellants retained counsel it is reasonable to assume they retained the firm as a whole to represent their interests, not one particular attorney. Based upon the holding in Bentley, we find that when the secretary received and initialed the court dockets she was acting as an agent of the law firm, which was properly listed as the attorney of record. The term “attorney of record” may include the law firm as a whole as well as individual attorneys in the firm to satisfy the requirement of “notice to the attorney of record” pursuant to rules 165a and 306a.

We find that there was adequate notice to the attorney of record so as to satisfy the provisions of rule 165a and 306a(3). Therefore, the time periods set forth in rule 306a(4) are not applicable in this situation. Appellant’s counsel received notice of the court’s intention to dismiss and the order of dismissal for want of prosecution within the time period set forth in rule 165a(2). Since the motion to reinstate was not filed within thirty days after the order of dismissal was signed, the trial court lacked jurisdiction to reinstate the case because sixty-five days had passed between the order of dismissal and the motion to reinstate. Appellant’s first and second points of error are overruled. Based on our decision on their first two points of error, we need not discuss appellants’ third point of error.

The judgment is affirmed.

      . All references to rules are to the Texas Rules of Civil Procedure.


author: PER CURIAM.

text:
    INTERTEX, INC., Appellant, v. Richard WALTON, et al., Appellees.
    No. A14-84-882-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 24, 1985.
    William Satterwhite, Houston, for appellant.
    Jerry L. Schutza, Houston, for appellees.

      Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.
   OPINION

PER CURIAM.

Appellant filed a motion to extend time to file the statement of facts. We find appellant failed to make a timely request for the statement of facts and, therefore, deny the motion. TEX.R.CIV.P. 377.

In order to present a statement of facts on appeal, appellant must make a written request to the official reporter at or before the time prescribed for perfecting the appeal. TEX.R.CIV.P. 377. The time for perfecting the appeal was November 30, 1984.

The motion to extend time to file the statement of facts was filed December 28, 1984. In the affidavit accompanying that motion, the court reporter avers appellant’s written request was made December 31, 1984, the day the statement of facts was due.

Accordingly, the motion is denied.


text:
    Banctexas Allen PARKWAY, et al., Appellants, v. ALLIED AMERICAN BANK, Appellee.
    No. A14-85-016-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 24, 1985.
    Murray Fogler, Jacalyn D. Scott, Houston, for appellants.
    Michael B. Lee, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and SEARS and ELLIS.
   OPINION

PER CURIAM.

Appellant filed a motion to extend time to file the statement of facts. We find appellant made a timely request for the statement of facts and timely filed a motion. We, therefore, grant the motion. TEX.R.CIV.P. 377, 386.

In order to present a statement of facts on appeal, appellant must make a written request to the official reporter at or before the time prescribed for perfecting the appeal. TEX.R.CIV.P. 377. The time for perfecting the appeal was December 10,

1984.

The motion to extend time to file statement of facts was timely filed January 8, 1985, two days before the record was due. See TEX.R.CIV.P. 386. In the affidavit accompanying that motion, the court reporter avers appellant’s request for the statement of facts was not written and was not made until January 2, 1985. Appellant insists a written request was made November 14, 1984. Attached, in support of its verified motion, is a written request to the court reporter, file stamped by the district clerk’s office November 14, 1984.

We find the request was timely made. Accordingly, the motion is granted. The statement of facts is due in this court before noon January 28, 1985.


author: WILHOIT, Judge.

text:
    Charles E. PEARCE, M.D., Appellant, v. COURIER-JOURNAL & Louisville Times Company; Mike Huber; and Sharon LaFraniere, Appellees.
    Court of Appeals of Kentucky.
    Jan. 11, 1985.
    As Modified Feb. 8, 1985.

      Frank E. Haddad, Jr., Louisville, for appellant.
    Jon L. Fleischaker, Sheryl G. Snyder, Kimberly K. Greene, Virginia H. Snell, Wyatt, Tarrant & Combs, Louisville, for appellees.
    Before CLAYTON, LESTER and WIL-HOIT, JJ.
   WILHOIT, Judge.

Dr. Charles E. Pearce appeals from a judgment on the pleadings dismissing his complaint against the Courier-Journal and Louisville Times Company, which publishes the newspapers of the same names, and two of its reporters, Mike Huber and Sharon LaFraniere, for damages arising out of libel, invasion of privacy, and intentional infliction of emotional distress. The complaint was based upon six newspaper articles published a total of nine times.

The appellant’s complaint was filed March 10, 1983. On April 1, 1983, the appellees, without answering, filed a motion “pursuant to CR 12 to dismiss the Complaint against them for its failure to state a claim upon which relief may be granted by this Court.” On May 27, 1983, the trial court entered a final judgment pursuant to CR 12 dismissing the complaint “with prejudice, for its failure to state a claim upon which relief may be granted.” Prior to entry of the judgment, the appellant had filed an amended complaint, and the parties had filed memoranda in support of and in opposition to the motion to dismiss. Following entry of the judgment on June 1, 1983, the appellant filed a “supplemental memorandum” in opposition to the motion to dismiss, which was answered by a memorandum filed by the appellees. On June 13, 1983, after considering the appellant’s supplemental memorandum, the court entered a “supplemental final judgment” reaffirming its judgment of May 27, 1983.

We begin our discussion of the merits of the trial court’s action by noting that exhibits and affidavits were filed by the parties and were apparently considered by the court in reaching its conclusion. Although there is nothing in the record to indicate that the court formally converted the motion to dismiss into one for summary judgment, that is the procedural effect of what it did. See CR 12.02; Whisler v. Allen, Ky., 380 S.W.2d 70 (1964). We shall consequently look to see if there is any issue of material fact in this case and if none, whether the appellees were entitled to a judgment as a matter of law. See CR 56.03.

The facts are undisputed that the articles appearing in the Louisville Times and the Courier-Journal concerning seizure of some of the appellant’s records by drug-enforcement officers contain an untrue statement. The articles incorrectly state that an affidavit sworn to by a drug-enforcement officer for a search warrant stated that the appellant had “issued prescriptions for Demerol without trying to find out whether patients needed it.” In fact, the affidavit accused the appellant of issuing prescriptions for “controlled substances” without determining the need for them. The return on the search warrant stated that the appellant’s “Demerol dispensing Records from 8-24-79 to 1-18-82” had been seized as a result of the search.

The common law in this state has long been that a newspaper is privileged to print fair and accurate accounts of judicial proceedings, including those for a search warrant. See Beiser v. Scripps-McCrae Publishing Co., 113 Ky. 383, 68 S.W. 457 (1902). The privilege is not lost if the newspaper fails to print the exact facts so long as what it does print is substantially true. See Bell v. Courier-Journal & Louisville Times Co., Ky., 402 S.W.2d 84 (1966). The articles appear to have been substantially true in that while the affidavit did not mention “Demerol,” it is obvious from the judicial records that the authorities were seeking evidence of illegal Demerol prescriptions. In any event, we see no difference in the defamatory effect of a statement which imputes to a physician the illegal prescription of “Demerol” and one which imputes the illegal prescription of “controlled substances,” which by statute include such substances as opium and ly-sergic acid diethylamide. See KRS 218A.050 et seq. The inaccuracy in these articles could not have appreciably affected their defamatory result; thus the court did not err in dismissing the libel claim based upon them, see Plummer v. Commercial Tribune Publishing Co., 208 Ky. 210, 270 S.W. 793 (1925), unless they were “maliciously made” as that term is used in KRS 411.060.

To the extent that the Louisville Times article subtitled “Once sued in death, now target of a state probe” is alleged by the appellant to defame him by implying that he prescribed excessive or needless drugs, the record before us indicates without factual dispute that this article was an accurate account of proceedings before the Kentucky Board of Medical Licensure and of court proceedings in a civil action against the appellant, with one exception. That one exception is the following statement appearing in the article:

Another patient, a 76-year-old widow, has told the Times that in 1979 she became addicted while under Pearce’s care. [See accompanying story.]

The accompanying story to which readers were directed is one subtitled “An elderly woman’s story of the living hell of drugs.” This story recounts the statements of Mrs. Hattie Rose Ludwig and of two physicians, other than the appellant, who had treated her.

Insofar as this article is an accurate account of judicial and administrative proceedings, then regardless of the falsity or defamatory character of its contents, it is absolutely privileged unless its publication “was maliciously made.” KRS 411.060. Unfortunately, we find nothing in the statute explaining what is meant by “maliciously made,” and the few cases considering this statute offer little or no guidance. See, e.g., Helton v. Joplin, Ky., 281 S.W.2d 917 (1955). Although Begley v. Louisville Times, 272 Ky. 805, 115 S.W.2d 345 (1938), was concerned with a publication which would seem to have fallen within the purview of KRS 411.060, that opinion does not consider the statute. That opinion does, however, discuss the public policy consideration which had led to a judicially-created privilege with respect to accurate accounts of public proceedings and the scope of the privilege which affords protection even though the defamatory statement is known by its publisher to be false. It points out, however, that the privilege is lost if the sole purpose of the publication was to cause harm to the person defamed. We conclude that by the enactment of KRS 411.060 in 1936, the General Assembly intended to establish by legislation a rule which was apparently then judicially recognized, at least elsewhere. See Restatement of Torts § 611 (1938).

The policy consideration giving rise to the rule is that the public should be informed of public proceedings. See Begley v. Louisville Times Co., supra; Greenfield v. Courier Journal & Louisville Times Co., Ky., 283 S.W.2d 839 (1955). Inasmuch as the falsity of the publication or the publisher’s knowledge of the falsity does not erase the privilege, we cannot accept the appellant’s argument that the statutory words “maliciously made” mean “publication with knowledge of falsity or reckless disregard of falsity.” Rather, we think that in the light of then-current legal thought the General Assembly intended that these words be understood as “made solely for the purpose of causing harm to the person defamed.” See Begley, 115 S.W.2d at 349. We find nothing in the record which can fairly be said to have raised an issue that the publication of this account of the court and administrative proceedings or the previously discussed seizure stories were made solely for the purpose of causing harm to the appellant.

The appellees present a question as to the constitutionality of the “maliciously made” limitation on the privilege contained in KRS 411.060. Because of the result we have reached, we need not consider this. Furthermore, the Attorney General does not appear to have been notified that the constitutionality of this statute was being questioned. See Blake v. Woodford Bank & Trust Co., Ky.App., 555 S.W.2d 589 (1977).

With respect to the statement set out above and the accompanying story to which it referred, they do not, of course, fall within the privilege just discussed, and the Supreme Court of Kentucky has rejected the doctrine of “neutral reportage.” See McCall v. Courier Journal & Louisville Times Co., Ky., 623 S.W.2d 882 (1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2239, 72 L.Ed.2d 849 (1982). The gist of the story concerning Mrs. Ludwig is that the appellant caused this elderly lady to become an impoverished drug addict by injecting her with drugs over a period of time for no valid medical purpose, but for the purpose of taking her money. The natural and probable effect of this story on the mind of the average lay reader would be to cause him to hold the appellant up to hatred, contempt, or disgrace, especially when this story is considered in the context of the article about the public proceedings appearing beside it and under the overall headline, “St. Matthews doctor at center of drug controversy,” See Digest Publishing Co. v. Perry Publishing Co., Ky., 284 S.W.2d 832 (1955). The statement and accompanying story imputed to the appellant not only additional medical malpractice, but also additional criminal activity. They were clearly defamatory. See Register Newspaper Co. v. Stone, Ky., 102 S.W. 800 (1907).

The appellees contend that no allegation was made by the appellant that anything contained in the story about Mrs. Ludwig was false. In this they are mistaken. See Paragraph 17 of the Complaint, Record at 7-8. Insofar as the record before us shows, an issue of material fact exists as to the truth of the defamatory aspects of this story.

The stories about the judicial and administrative proceedings against the appellant insofar as they deal with matters of public concern and are accurate reports of judicial and administrative proceedings do not seem to us to be proper subjects of the tort of invasion of the right of privacy. See Bell v. Courier-Journal & Louisville Times Co., Ky., 402 S.W.2d 84 (1966); Restatement (Second) of Torts § 652D(b) (1977); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). If the story concerning Mrs. Ludwig should be shown by the evidence to have been untrue, then under the principles outlined in Section 652E of the Restatement (Second) of Torts (1977), which were apparently approved by the Supreme Court in McCall v. Courier-Journal & Louisville Times Co., supra, the appellant’s claim for invasion of privacy by placing him in a false light would be maintainable, though he cannot recover for both the defamation and the invasion of privacy. Id. at 888-89.

Concerning the statement that the appellant’s license “will be suspended indefinitely,” which was contained in an October 7, 1982 Louisville Times article and attributed there to the assistant secretary of the State Board of Medical Licensure, it is undisputed that the statement is factually inaccurate, while it is disputed as to whether the assistant secretary even made such a statement. The appellees successfully argued to the trial court that this statement was also privileged. Based upon the record as it exists at this point, we cannot agree. The statement is apparently not a substantially accurate account of any proceedings before the board, and it is certainly not a substantially accurate account of the judicial proceedings which were the main topic of the article. Instead, it appears to have been an inaccurate reportorial addition to a story recounting those proceedings. See Restatement (Second) of Torts § 611 comment f (1977). The statement, even if made, has not yet been shown to have been made by the secretary in the performance of a duty imposed upon him by law, which was the situation in McAlister & Co. v. Jenkins, 214 Ky. 802, 284 S.W. 88 (1926), cited by the appellees. See also Lanier & Higgins, Ky.App., 623 S.W.2d 914 (1981).

In spite of the appellees’ argument to the contrary, we are convinced that this statement did add to the “gist or sting” of the story as a whole. Admittedly, without the statement the rest of the story stung the appellant’s reputation badly. Nevertheless, the statement inserted what was capable of interpretation by the average lay reader as yet another stinger into the appellant’s already wounded reputation, viz, that the Board of Medical Licensure believed the charges against him to be true.

Based upon the principles that we have already discussed, upon remand the trial court should also consider whether a claim for invasion of privacy by placing in a false light would lie as to this statement.

At the time that this case was disposed of by the trial court, the opinion of the Kentucky Supreme Court in Craft v. Rice, Ky., 671 S.W.2d 247 (1984), had not been rendered. The appellees had successfully argued to the trial court that Kentucky did not recognize as a tort the intentional infliction of emotional distress by extreme and outrageous conduct, and especially so in the absence of physical contact. Upon remand, the trial court should consider the appellant’s claim on this ground in the light of that case.

Because of the result reached by the trial court, it was not necessary for it to consider the question raised by the parties concerning punitive damages. We shall not consider that question for the first time on appeal.

The judgment of the trial court is reversed insofar as it granted summary judgment against the appellant’s claims based upon Hattie Rose Ludwig’s story and the reference to it in the accompanying story, and the appellant’s claims based upon the statement attributed to the secretary of the licensure board. The judgment is affirmed as to the claims based upon the other stories cited in the complaint. This matter is remanded for further proceedings consistent with this opinion.

All concur.


author: COMBS, Judge.

text:
    John Calhoun WELLS, Secretary of Labor Cabinet (Special Fund), Appellant, v. James H. CRADDOCK; Bel Cheese, Inc.; and Workers’ Compensation Board, Appellees. and BEL CHEESE, INC., Appellant, v. James H. CRADDOCK; John Calhoun Wells, Secretary of Labor (Special Fund); and Workers’ Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Jan. 25, 1985.
    Timothy O’Mara, Middleton & Reutlinger, Louisville, for appellant, Bel Cheese, Inc.
    Gemma M. Harding, Labor Cabinet, Louisville, for appellant, Special Fund. John W. Bland, Jr., Elizabethtown, for appellee, James H. Craddock.
    Before COMBS, MILLER and WHITE, JJ.
   COMBS, Judge.

These two appeals are from an order of the Grayson Circuit Court remanding the worker’s claim for benefits to the Workers’ Compensation Board for further findings of fact. The sole issue on appeal is whether the circuit court erred in taking such action.

The worker, James H. Craddock, suffered a work-related injury on June 21, 1979, when a piece of machinery he was attempting to repair fell and struck his ankle. Subsequently, while still recuperating from this injury, Mr. Craddock experienced a heart attack on September 10, 1979. He filed a claim for workers’ compensation benefits based upon both the injury to his ankle and the heart attack against his employer, Bel Cheese, Inc., and named the Special Fund as a potential source of liability.

The Workers’ Compensation Board found that Mr. Craddock had "... sustained an occupational disability of 30% ...” and it apportioned the liability equally between the employer-appellant and the Special Fund.

Mr. Craddock sought judicial review of his limited award in the Grayson Circuit Court. Rather than addressing the merits of the case, the trial court remanded the claim to the Workers’ Compensation Board for additional findings of fact. Both .the employer, Bel Cheese, Inc., and the Special Fund have appealed that order to this court.

The basis for the trial court’s order remanding the claim to the Board was due to its inability to determine whether the Board had relied upon the applicable law in formulating its original award. It is well established that a claim for benefits is controlled by the Workers’ Compensation Act, KRS Chapter 342, as written at the time of the occurrence of the work-related injury. See Maggard v. International Harvester Co., Ky., 508 S.W.2d 777 (1974). This rule is particularly important in the instant appeal because the worker was injured in 1979, and the Board’s opinion and order was not rendered until June 6, 1983, nearly four years later. During that time period, KRS 342.730, the statute which sets forth the formula for the computation of disability benefits, underwent significant revision by our legislature. 1980 Ky.Acts, Ch. 104, § 15; 1982 Ky.Acts, Ch. 278, § 23. Most importantly, KRS 342.730 as amended, now recognizes the American Medical Association’s “Guide to the Evaluation of Permanent Impairment” as a primary standard for establishing the level of a worker’s disability.

In his appeal to the Grayson Circuit Court, the worker maintained that the Board had improperly utilized this amended version of KRS 342.730 to establish the extent of his disability. The circuit court, while not directly concluding that such was indeed the case, felt that the opinion and order of the Board was sufficiently vague on this question as to justify its remand for findings more clearly in conformity with KRS 342.730 as written in 1979.

The standard of our review of such an action by the circuit court is found in KRS 342.285(4), which states:

... the court shall enter judgment affirming, modifying or setting aside the order, decision or award, or in its discretion remanding the cause to the board for further proceedings in conformity with the direction of the court. (Emphasis added.)

The decision to remand lies within the sound discretion of the trial court, and this court may reverse the trial court’s decision to remand only upon a finding that such action constituted an abuse of discretion. We find no such abuse in the instant appeal. We have reviewed the Board’s opinion and order, and the relevant portions of the record, and find ample grounds to support the order of the trial court. In particular, we note that in summarizing the testimony of the numerous medical experts, the Board repeatedly couched its comments in terms of “impairment,” a terminology that could reasonably infer an improper reliance on the post-1979 versions of KRS 342.730. While this factor does not demonstrate beyond a shadow of a doubt that the Board incorrectly applied KRS 342.730 as amended, it does provide the support necessary for the trial court's order remanding the claim for findings specifically based upon the statute as it was written in 1979. This case is similar to the case of Shields v. Pittsburgh and Midway, Etc., Ky.App., 634 S.W.2d 440 (1982).

The order of the Grayson Circuit Court is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    ARMCO, INC., Appellant, v. Chester FELTY and Workers’ Compensation Board, Appellees. and John Calhoun WELLS, Secretary of Labor Cabinet (Special Fund), Appellant, v. Chester FELTY and Workers’ Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Jan. 25, 1985.
    William H. Jones, Jr., Ashland, Gemma H. Harding, Labor Cabinet, Louisville, for appellants.
    Alvin B. Trigg, Lexington, for appellee.
    Before CLAYTON, COOPER and HOW-ERTON, JJ.
   HOWERTON, Judge.

Armco and the Special Fund appeal from a judgment of the Greenup Circuit Court affirming an order of the Workers’ Compensation Board awarding Chester Felty 100 percent occupational disability and requiring Armco and the Special Fund to be liable for 25 percent and 75 percent, respectively. The main argument on appeal is that the board erred by failing to dismiss Felty’s claim for compensation as untimely, pursuant to KRS 342.316(3). We agree and reverse. The other issues are moot.

Felty filed a claim for adjustment with the Workers’ Compensation Board in October of 1981, alleging that he became disabled in June of 1981 with the occupational disease of silicosis. This disease allegedly was caused by Felty’s exposure to dust particles while working for Armco in its open hearth blast furnace. Felty was transferred from the furnace area to a nondusty type job in the pump or power house in 1974.

In its opinion and award, the board rejected the appellant’s arguments that Felty’s claim was barred by KRS 342.316(3), which requires Felty to file his application for adjustment of a claim within five years from the last injurious exposure. The board found that Armco failed to comply with the notice requirements of KRS 342.-186, and that a claim for occupational disease need not be filed until actual disability has been manifested. Based on this decision, the board awarded Felty 100 percent disability.

While the board’s ruling may seem reasonable, we must nevertheless conclude that the notice statute is inapplicable in this situation and that the legislature has provided a clear bar to claims and disabilities from silicosis which are not presented or manifested within five years of the last injurious exposure. According to KRS 342.316(3):

The right to compensation under this chapter for disability resulting from an occupational disease shall be forever barred unless a claim is filed with the workers’ compensation board within three (3) years after the last injurious exposure to the occupational hazard or after the employe first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted the disease, whichever shall last occur; and if death results from the occupational disease within said period, unless a claim therefor be filed with the workers’ compensation board within three (3) years after such death; provided, however, that notice of such claim shall be deemed waived in case of disability or death where the employer, or his insurance carrier, voluntarily makes payment therefor, or, if the incurrence of the disease or the death of the employe, and its cause was known to the employer. Provided, however, that the right to compensation for any occupational disease shall be forever barred unless a claim is filed with the workers’ compensation board within five (5) years from the last injurious exposure to the occupational hazard, except that, in cases of radiation disease, a claim must be filed within twenty (20) years from the last injurious exposure to the occupational hazard. (Emphasis added.)

The statute allows a claim to be made for three years after a disease becomes known and disabling, but it also puts a maximum five-year-limit from the time of the last exposure. Also, the question of notice is not involved, and as a practical matter, it could not be. An employer need not give notice that the time to make a claim will expire within 30 days, if even the claimant is unaware of an injury, a disease, or a disability until after his claim is barred. It may be that a claimant should be compensated, if he can prove that the work caused his disability, but KRS 342.316(3) does not deal with a five-year presumption of causation. It simply says that, if you do not recognize your occupational disease and make your claim within five years of your last exposure to its cause, you cannot collect.

In this case, the only evidence presented was that Felty’s last injurious exposure to the dust was prior to 1974. Since his claim was not filed with the board until October of 1981, he did not file within the five-year requirement of KRS 342.316(3), and therefore his claim is barred. A similar situation occurred in Crawford v. V & C Coal Co., Ky., 432 S.W.2d 403 (1968), where the court held that a worker’s claim was barred by the five-year limitation provision of KRS 342.316(3), when he ceased working in 1957 and did not file a claim for pneumoconiosis benefits until October of 1966.

The judgment of the Greenup Circuit Court is reversed.

All concur.


author: PUDLOWSKI, Judge.

text:
    L.J. ROSS, CO., a corporation, Plaintiff-Respondent, v. Michael VAUGHN and Warren Suche, d/b/a V & S Construction Co., Defendants-Appellants.
    No. 47782.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 26, 1984.

      Joseph B. Dickerson, St. Louis, for defendants-appellants.
    Charles M.M. Shepherd, Clayton, for plaintiff-respondent.
   PUDLOWSKI, Judge.

This is an appeal from a default judgment on a petition to enforce a mechanics’ lien. Plaintiff prayed for judgment against defendants Michael Vaughn and Warren Suche, doing business as V & S Construction Co. for money damages, ($4,249.42) plus interest and costs of suit. Plaintiff also prayed for a valid mechanics’ lien on the interests of defendants Gerald N. Quinn and his wife Anna M. Quinn in their residential property located in St. Louis County. Plaintiff further prayed that the mechanics’ lien be deemed prior and superi- or to a deed of trust held by defendant Commerce Bank of Kirkwood, that the property subject to the lien be sold to pay the amount claimed plus interest and expenses of sale, and that the various rights and interests of the lien claimants be determined. If the court determined that no valid mechanics’ lien existed, plaintiff prayed for a personal judgment against defendants Vaughn and Suche, doing business as V & S Construction Company, and defendants Quinn, in the amount of $4,249.42 plus interest and costs of suit.

All defendants received summons by personal service. A default judgment was entered against all defendants but was subsequently set aside as to defendants Quinn, who filed an answer the same day. At a subsequent default hearing, judgment for plaintiff and against all defendants was entered as follows:

Now on this 17th day of August, 1983, this cause being called and Plaintiff being present in person and by counsel and Defendants Quinn being present by counsel and Defendants Vaughn and Suche and Commerce Bank of Kirkwood remaining in default now, on the evidence produced, the court herein grants judgment in favor of Plaintiff and against Defendants Quinn, Vaughn and Suche d/b/a V & S Construction Company and Commerce Bank of Kirkwood in the principal sum of $4,249.42 plus interest in the sum of $789.95, together totaling $5,039.37. Judgment of mechanics lien granted as prayed. Costs herein assessed against Defendants Vaughn and Suche. (Underscored portions were hand-written into the judgment).

On September 16, 1983, Vaughn and Suche, appellants, filed a motion to set aside the default judgment and a notice of appeal. On October 3, 1983, they filed a motion to set aside the default judgment for irregularity on its face in accordance with Supreme Court Rule 74.32. On October 5, 1983, the two motions were respectively denied and overruled.

Our Supreme Court recently held that a default judgment is not appealable in the absence of a motion to set aside or vacate the judgment. Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984), on transfer, 666 S.W.2d 426 (Mo.App.1984). In the case at bar, appellants filed a motion to set aside or vacate on the thirtieth day. While a motion made more than fifteen days but less than thirty days after judgment will not extend the time during which the court may act from thirty to ninety days, it does meet the requirements of Vonsmith and confer jurisdiction to this court to entertain the appeal. Chatman v. Civic Center Corporation, 682 S.W.2d 31 (1984).

In addressing appellant’s argument that the trial court erred in denying the motion to set aside the default judgment, we note that the trial court lacked jurisdiction to make the ruling. The trial court entered its default judgment on August 17, 1983. Thirty days after entry of the judgment, appellants filed their motion to set aside the judgment. A hearing was held and the motion was denied on October 5, 1983; 49 days after the judgment of default was entered.

To extend the time during which the trial court may act from thirty to ninety days, a motion to set aside judgment must be entered within fifteen days from the entry of judgment. State ex rel. Stoffer v. Moore, 628 S.W.2d 637 (Mo. banc 1982). The fifteen day requirement was not met in this case by appellant, meaning the time in which the trial court could act was not extended as it would have been under Rule 81.05 if the motion had been timely filed. Since the trial court did not act within the time restraints of Rule 75.01, the judgment became final for the purposes of appeal on the thirtieth day after its entry, September 16, 1983. As a result of the trial court not ruling on appellants’ motion during the thirty days granted pursuant to Rule 75.01, the motion was effectively denied by operation of law on September 16, 1983. Thus, the issue of whether or not the trial court erred in failing to set aside the default judgment is properly before us.

In order to justify a trial court in setting aside a default judgment, the defendant must establish a meritorious defense and a good reason for the default. The general rule is that where the application, motion to set aside, or hearing thereon discloses a meritorious defense and also shows reasonable diligence or excuse for default or non-appearance and no substantial injury to plaintiff from a delay, the trial court should exercise its discretion in favor of trial on the merits. Schoenhoff v. Owens, 564 S.W.2d 273, 275 (Mo.App.1978).

The basis for appellant’s contention is that this dispute had been referred to another attorney and they assumed that he had entered his appearance on their behalf. While the negligence of counsel is generally imputable to the client, there are circumstances in which a default may be set aside because the client is free of any lack of diligence. Such a situation occurs when counsel abandons the defense of a case without notice to the client, Schoenhoff v. Owens, supra, or when counsel withdraws from a case without informing his client of an imminent trial date. Murray v. Sanders, 667 S.W.2d 426, 429 (Mo. App.1984). The record on this appeal is devoid of any facts which support appellants’ assertion and thus there is no basis for us to apply the rule. Accordingly, their counsel’s negligence must be imputed to appellants, and we find that they have not shown reasonable excuse for default. There being no other facts raised in their claim to show whether appellants have a meritorious defense or whether plaintiff would be prejudiced by setting aside the default judgment, we find no merit to their claim.

Vaughn and Suche’s motion to set aside the default judgment also alleges that the damages awarded exceed the amount of relief prayed for and therefore violates Rule 74.11. Plaintiff only sought a money judgment against appellants, not a joint judgment against all of the defendants. While the judgment does grant more relief than that prayed for, appellants have no standing to raise this argument. The judgment does not exceed the relief prayed for as to them. It is only excessive as to the other defendants, who are not parties to this appeal.

Appellants further argue that the damages awarded exceed the relief prayed for in that the interest on $4,249.42 was improperly calculated. Although the $789.95 awarded by the circuit court does exceed the correct amount of interest, this is not the type of excessive judgment contemplated by Rule 74.11. Rook v. Oliver Trucking Co., 505 S.W.2d 157 (Mo.App. 1973). The correct amount of interest is $705.93. Accordingly, we remand this portion of the judgment to the circuit court for modification pursuant to this opinion.

Appellants also contend that the trial court erred in overruling their motion to set aside the default judgment for irregularity on its face in accordance with Supreme Court Rule 74.32. We have no jurisdiction to address this issue.

Appellants filed their Notice of Appeal on September 16, 1983, the thirtieth day after the judgment. This notice was premature and became effective on September 17, 1983, the first day after the thirty day period following rendition of the judgment. Only those issues raised prior to September 17, 1983 would be subject of appeal.

Accordingly, the filing on October 3, 1983 of the motion to set aside judgment for irregularity on its face did not present any issues available for consideration in this appeal from the judgment of August 17, 1983. Appellants, if aggrieved by the action of the trial court on its motion to set aside for irregularity, then and thereafter had the right of appeal from that action. Appellants have not availed themselves of that right of appeal from the October 5, 1983 ruling, but rather have attempted to engraft that matter on the herein appeal without having complied with all of the procedural requirements. As a result, all of the points relied on by appellants herein which have their source in the motion to set aside judgment for irregularity on its face are not eligible for consideration by this Court in this appeal.

Judgment affirmed in part, and remanded to the circuit court for modification in conformity with this opinion.

SIMON, J., concurs.

CRIST, P.J., concurs in result.


author: GAERTNER, Judge.

text:
    In re The Marriage of Elizabeth SHELOR, Respondent, v. Thomas Ryland SHELOR, Appellant.
    No. 48094.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 26, 1984.

      Richard A. Gartner, St. Ann, for appellant.
    Keith W. Hazelwood, St. Charles, for respondent.
   GAERTNER, Judge.

Husband appeals from that portion of a decree of dissolution distributing marital assets. He contends the trial court erred in awarding a disproportionate share of these assets to wife and by failing to distribute all the marital and non-marital property as required by § 452.330, RSMo.Supp. 1984. We affirm.

The principles of appellate review of dissolution cases are firmly established. The division of marital property lies within the sound discretion of the trial court. The appellate court will disturb the trial court’s judgment only where it is “improper under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), or an abuse of discretion is shown. Colabianchi v. Colabianchi, 646 S.W.2d 61, 64 (Mo. banc 1983).” Dardick v. Dardick, 670 S.W.2d 865, 868 (Mo. banc 1984).

On appeal, the appellant has the burden of proving the trial court’s order was incorrect. Mills v. Mills, 663 S.W.2d 369, 372 (Mo.App.1983). Under § 452.330, Supp.1984, the trial court is required to divide the marital property in a just, fair and equitable manner. However, this division does not have to be equal. Ware v. Ware, 647 S.W.2d 582, 584 (Mo.App.1983). Thus, the appellate court will only interfere if the division is so heavily weighted against one party so as to equal an abuse of discretion. Metts v. Metts, 625 S.W.2d 896, 899 (Mo.App.1981).

We find no abuse of discretion. Most of the marital assets were acquired by commingling property owned by the parties prior to the marriage. The evidence shows the wife’s contribution to this commingling of assets to be considerably greater than that of husband. One factor for the consideration of the trial court in apportioning marital assets is the contribution of each spouse. § 452.330.1(1), Supp. 1984. Therefore, the mere fact that wife received a larger share of the marital assets does not warrant a finding that the trial court abused its broad discretion.

However, husband points to two incidents which he characterizes as wife’s misconduct which, he contends, the trial court erroneously failed to consider. Each incident involved withdrawal by wife of funds from joint accounts. She testified, and husband did not refute, that the first withdrawal had been repaid. Funds obtained from the second withdrawal, made shortly before her petition for dissolution was filed, were accounted for and charged against her share of marital assets. She made no attempt to conceal the withdrawal. The trial court could reasonably find that these incidents did not constitute marital misconduct. McCall v. McCall, 574 S.W.2d 496, 498 (Mo.App.1978). In any event, the weight to be placed upon the wife’s actions was squarely within the domain of the trial court. Fields v. Fields, 643 S.W.2d 611, 617 (Mo.App.1982). No abuse of discretion appears here.

After the separation of the parties their Missouri residence was sold and wife moved to Virginia. As a fringe benefit of her employment by the federal government, she received reimbursement for the expenses of this transfer of employment, including moving expenses and the real estate commission paid in connection with the sale of the residence. Husband charges trial court error in failing to designate this reimbursement as marital property. It is undisputed that wife alone was paid this reimbursement based upon her employment after the commencement of the dissolution action. The decree, without characterizing the reimbursement expressly, recited that no allowance therefrom was made to the husband. In effect, this amounted to a designation of the fund as wife’s separate property. Such a determination is in accord with the 1981 amendment to § 452.330.3. The prior statute designated as marital property all assets acquired prior to the entry of the decree of dissolution. The 1981 amendment establishes a cut-off date for common ownership as of the time of the commencement of the dissolution action.

Finally, husband argues that the failure to make any allowance of a portion of this reimbursement, as expressly set forth in the decree, is contrary to the oral pronouncement of the trial judge that “the court is not making any award or any allowance for the commissions on that property.” If there is any inconsistency here, and we have difficulty in ascertaining any, it is of no import. Missouri courts have long held that the decretal portion of an order and not mere recitals, findings, memoranda or opinions is controlling. If there is any inconsistency between the recital and the decree, the latter controls. Casper v. Lee, 245 S.W.2d 132, 141 (Mo. banc 1952); Page v. Page, 516 S.W.2d 537, 539-40 (Mo.App.1974).

The judgment is affirmed.

PUDLOWSKI, P.J., and KAROHL, J., concur.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Walter Daniel DIXON, Appellant.
    No. 48483.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 26, 1984.
    Frank A. Anzalone, Clayton, for appellant.
    James E. Baker, Clayton, for respondent.
   ORDER

PER CURIAM:

Appeal from conviction of burglary in the second degree, and stealing over $150.00, § 570.030, RSMo 1978, and respective sentences of three years of imprisonment, to be served consecutively.

Affirmed. Rule 30.25(b).


author: CLEMENS, Senior Judge.

text:
    Mary Elizabeth SHANNON, Appellant, v. STATE of Missouri, Respondent.
    No. 48635.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 26, 1984.

      Kenneth A. Seufert, Contract Atty. for the Public Defender Commission, Farming-ton, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

Movant Mary E. Shannon (hereafter “defendant”) appeals the denial of her Rule 27.26 motion to set aside a twelve-year prison sentence. The trial court had imposed that sentence when defendant pled guilty to a felonious gunshot assault upon her pregnant daughter.

Defendant now contends her trial counsel had fraudulently advised her that by pleading guilty she would be paroled. The state contends the record does not so show by a preponderance of the evidence.

We recite in order the movant’s and the state’s evidence, and then the motion court’s memorandum in denying relief.

Defendant testified under oath: She was a trained nurse somewhat addicted to alcohol; her two psychiatrists had examined her and found she was not psychotic. Defendant admitted shooting her daughter and recently had paid her daughter $30,000 in response to a threatened damage suit; that her counsel Ronald E. Pedigo had fraudulently advised her that if she paid that sum she would get a suspended five year sentence, and ordered her to lie under oath when pleading guilty. On cross-examination defendant testified she had previously been charged with feloniously shooting her former husband, but had forgotten to tell this to her counsel until the day of her guilty plea.

Two others testified for defendant. Her consort confirmed her testimony about being told she would not go to prison if she pled guilty; but Mr. Pedigo had not told her to lie. Defendant’s bail bondsman testified Mr. Pedigo told him the daughter’s counsel had signed a “hold harmless” agreement, and Mr. Pedigo had — and had not — told defendant the criminal charges would be dropped.

Defense counsel Pedigo testified he had discussed defendant’s legal problems with her countless times. Just before the guilty plea he had reviewed with her the host of questions the court would ask. He then told her she must answer honestly, and also told her the financial settlement of her daughter’s damage claim would not affect the court’s sentence; that the state’s evidence was overwhelming; that if she pled not guilty she would likely receive a longer sentence.

The hearing court then questioned defendant about the host of factors in pleading guilty. Defendant specifically had denied any threats had induced her guilty plea; that no one had lied to her; and denied anyone had made any promises about what sentence she would receive.

Thereupon the hearing court filed its findings of fact and conclusions of law. The court then ruled: Defendant’s guilty plea had not been induced by her counsel’s assurance of probation or other promises; that defendant had fully understood the felonious assault charge, her right to jury trial, and the range of punishment. The court specifically found defendant’s guilty plea was not induced by any promise of probation or parole and that her attorney had not advised her to lie when she pled guilty. That concluded the evidence.

Our review of a post-conviction ruling is limited to determining whether the motion court’s ruling is clearly erroneous. V.A. M.R. 27.260).

We conclude the state’s evidence was credible and the movant’s evidence was unreliable, self-serving and utterly refuted her claim to relief. The motion court did not err.

DOWD, P.J., and CRIST, J., concur.


author: NUGENT, Judge.

text:
    Robert M. SMITH, Appellant, v. Judy K. SMITH, Respondent.
    No. WD 35304.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    James J. Wheeler, R. Steven Gaw, Keytesville, for appellant.

      Robert G. Smith, Brookfield, for respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   NUGENT, Judge.

Robert Smith appeals from the trial court’s grant to his wife, Judy Smith, of maintenance in gross and attorney’s fees in this dissolution action. He alleges that he was denied due process of law when the court entered judgment for maintenance and attorney’s fees without notice and hearing after taking the matters under advisement and that there was a lack of evidence to support the award. We affirm.

In 1980, Mrs. Smith filed a petition for dissolution of her marriage with Mr. Smith. A trial was conducted before the court. Mr. Smith testified that he was employed as a railroad foreman and that when he is working his take home pay is between eight hundred and one thousand dollars per month. He further testified that he was not working at the time of trial and that he was unsure when he would return to work. Nothing in the record indicates that he was denied the opportunity to call any witness or to cross-examine any witnesses.

At the conclusion of the trial, the court ordered that the marriage be dissolved, the marital property be divided, custody of the couple’s two children be given to Mrs. Smith, and that Mr. Smith pay $305.00 per month child support. The court took under advisement Mrs. Smith’s request for maintenance in gross and for reasonable attorney’s fees. Subsequently, the court awarded Mrs. Smith $2,400 maintenance in gross and $300 attorney’s fees.

Thereafter, Mrs. Smith sought to execute on the judgment; Mr. Smith filed a motion to quash the execution, but the court denied the motion. In addition, he filed a motion for new trial or in the alternative to modify the decree. After conducting a hearing, the court denied the motion for new trial but sustained the motion to modify and in doing so specified Mr. Smith’s visitation rights.

Mr. Smith appeals the awards of maintenance and attorney’s fees. He raises two points: first, that he was denied due process of law when the court entered judgment for maintenance and attorneys fees without according him prior notice and a hearing; second, that no evidence was presented at trial showing that he had the financial resources to pay the awarded maintenance and fees.

In reviewing a court tried dissolution case, the appellate court must sustain the decree unless it is not supported by substantial evidence or it is against the weight of the evidence, or it erroneously declares or applies the law. B.S.H. v. J.J.H., 613 S.W.2d 453, 455 (Mo.App.1981). We find here that the trial court’s awards were supported by substantial evidence and that the court committed no error in declaring or applying the law.

Appellant first argues that he was denied due process because he was not given prior notice or a hearing before the trial judge entered judgment for maintenance and attorney’s fees. We cannot agree. The court after a full bench trial took the matters of maintenance and attorney’s fees under advisement and later entered judgment when Mr. Smith had returned to work. The record reveals that Mr. Smith was not denied an opportunity at trial to call witnesses or cross-examine any witnesses. Mr. Smith at trial testified concerning his occupation, his then existing temporary disability, and his take-home pay of $800 to $1,000 per month when he was working.

Generally, once a case has been finally submitted and taken under advisement, the court need not give notice to the parties prior to entry of its judgment. In Re Marriage of Eden, 621 S.W.2d 331, 332 (Mo.App.1981); Nordquist v. Armourdale State Bank, 225 Mo.App. 186, 19 S.W.2d 553, 556 (1929). In addition, due process does not require an evidentiary hearing when no factual issues remain to be resolved. Swift v. Ciccone, 472 F.2d 577, 578 (8th Cir.1972).

Here no factual matters remained to be resolved after the trial was concluded. Mr. Smith does not contend that he did not return to work, and the fact that Mrs. Smith attempted to have his wages garnished shows that in fact he was again working. Nor does he contend that his wages are less than what he said they were at trial, or that any other change in circumstances has occurred since trial. The only change was his return to work. Finally, Mr. Smith was afforded a hearing on his new trial motion. A transcript of that hearing is not included in the record, but in his motion for new trial he alleged the same due process issue he raises here. We assume that he aired those complaints with the trial court at that hearing.

Appellant’s second point is that no evidence was presented at trial showing that he has the financial ability to pay the awards. As we have already noted, Mr. Smith himself testified as to his occupation and take home pay, thereby furnishing substantial evidence at trial of his ability to pay the maintenance in gross and the attorney’s fees. The court did not make its award until Mr. Smith had once again resumed his employment.

For the foregoing reasons, we affirm the judgment of the trial court.

All concur.

      . The financial resources of the spouse who is to pay maintenance is one factor, but it is not the only factor, to be considered by the court in awarding maintenance. § 452.335 R.S.Mo.


text:
    STATE of Missouri, Respondent, v. Guy Milton GERBER, Appellant.
    No. WD35562.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    George M. Ely, Hamilton, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   ORDER

PER CURIAM:

Direct appeal from conviction of assault in the second degree, Section 565.060 RSMo 1978 and armed criminal action, section 571.015 RSMo 1978.

Judgment and conviction affirmed. Rule 30.25(b).


author: BERREY, Judge.

text:
    Wayne M. GOODLOE, et al., Plaintiff/Respondent, v. John R. PINK, Defendant Ad Litem For Robert Elsworth Bowlin, Deceased, Defendant/Appellant.
    No. WD 35741.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.

      G. Spencer Miller, Kansas City, George A. Tyree, Blue Springs, for defendant/appellant.
    Thaine O. Blumer, Kansas City, for plaintiff/respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   BERREY, Judge.

Defendant appeals from order granting new trial to plaintiff.

Plaintiff was driving south on Route BB approaching Pink Hill Road. Defendant was northbound on Route BB turning left onto Pink Hill Road in front of the plaintiff. Before defendant could clear the intersection, plaintiff and defendant collided. As a result of the collision plaintiff sustained multiple injuries, the loss of his left arm and was unconscious at the scene.

During the pendency of this appeal Robert Ellsworth Bowlin, appellant, passed away and John R. Pink was substituted as defendant ad litem.

Defendant’s first point is that the trial judge erred in failing to direct a verdict for defendant at the close of all the evidence. Defendant argues that there was no evidence that he either failed to keep a careful lookout or failed to yield the right of way.

In ruling upon a motion by a defendant for directed verdict, the evidence must be viewed in the light most favorable to the plaintiff. If there is substantial evidence to support the plaintiffs cause of action, the motion must be overruled. McNamee v. Ehrhardt, 433 S.W.2d 318, 320 (Mo.1968).

Plaintiffs cause of action was based on defendant’s failure to keep a careful lookout, or, in the alternative, defendant’s failure to yield the right of way to oncoming traffic while attempting to make a left turn. All drivers have a “duty to keep a vigilant lookout both ahead and laterally.” Trimble v. Sipes, 506 S.W.2d 353, 355 (Mo. 1974). Further, “[t]he driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.” Section 304.351.3, RSMo 1978; George v. Wheeler, 404 S.W.2d 426, 430 (Mo.App.1966). The factual dispute was whether defendant was able to see that plaintiff’s approaching car constituted an immediate hazard in time to take effective precautionary action.

Plaintiff had no recollection of the accident due to the severe injuries he sustained. His two passengers were asleep at the time of the collision and had no recollection of the accident. The only direct testimony about the accident was from defendant who testified that he saw no oncoming traffic, commenced his turn, and was struck by plaintiff’s vehicle. The highway patrolman who investigated the scene testified that the driver of a northbound vehicle (such as defendant) at that intersection would have a “[fjull view of the southbound traffic [such as plaintiff] ... for at least 80 feet south of the intersection.”

Defendant argues that plaintiff’s car was passing through a “dip” on Route BB, just north of Pink Hill Road, as defendant began his left turn. While in the dip, defendant argues, plaintiff’s car was not visible and defendant did not violate his duty to keep a careful lookout and to yield to oncoming traffic.

Defendant testified, “I was just fixing to turn. Just as I started to turn I saw him. He was right on me. I didn’t see him before that.” We view the evidence in the light most favorable to plaintiff. MRAD v. Missouri Edison Co., 649 S.W.2d 936, 937 (Mo.App.1983). The highway patrolman testified that northbound traffic could have seen a vehicle approaching from at least 80 feet south of the intersection and he further estimated the speed of plaintiff’s car at 55 miles per hour. The vision of neither driver was obscured. Plaintiff’s car left 114 feet of skid marks, commencing 24 feet north of Pink Hill Road’s center line through the point of impact then south approximately 90 feet. The collision of the two cars coupled with the physical facts shows that plaintiff’s car was so close to the intersection as to constitute an immediate hazard. A driver, “must be held to have seen what looking would reveal.” Witt v. Peterson, 310 S.W.2d 857, 860 (Mo.1958). These facts taken together are substantial evidence that defendant could have seen plaintiff’s car in time to take evasive action. The trial court correctly overruled the motion for directed verdict and submitted the case to the jury. McNamee, supra.

Defendant’s second point is that the trial court erred in granting plaintiff a new trial. A trial court has broad discretion to grant a new trial on the ground that the verdict is against the weight of the evidence. This discretion is not abused when there is substantial evidence to support a verdict for the party awarded a new trial. Resco Construction Co. v. Dawson Cabinet Co., 656 S.W.2d 324, 326 (Mo.App. 1983). We have already determined that plaintiff presented a submissible case. The judge acted within his discretionary authority when he ordered a new trial.

Respondent has requested that this court award damages for a frivolous appeal. Rule 84.19. “A ‘frivolous appeal’ is one which presents no justiciable question and is so readily recognizable as devoid of merit on the face of the record that there is little prospect for success.” Means v. Sears, Roebuck & Co., 550 S.W.2d 780, 789 (Mo. banc 1977). The points raised in this appeal concern a factual situation subject to such differing interpretation that the jury found in favor of defendant but the judge found the verdict to be against the weight of the evidence. The points raised in this appeal do not meet the definition of frivolous appeal. In addition, there is no showing of bad faith by appellant. Burks v. Beebe, 578 S.W.2d 298 (Mo.App.1979). Respondent’s request is denied.

Judgment affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Respondent, v. Yvette QUILLAR, Appellant.
    No. WD 36160.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.

      Joseph H. Locascio, Sp. Public Defender, Kansas City, Stephanie Warmund, Certified Law Intern, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, P. Ann Dirks, Asst. Atty. Gen., Kansas City, for respondent.
    Before KENNEDY, J., Presiding, and DIXON and CLARK, JJ.
   DIXON, Judge.

Quillar appeals from the denial, after an evidentiary hearing, of her application for conditional release, Section 552.040 RSMo (Supp.1984), from the St. Joseph State Hospital. Appellant was committed to the custody of the director of the Department of Mental Health of the State of Missouri following the state’s acceptance of the defense of mental disease or defect excluding criminal responsibility pursuant to Section 552.030.2 RSMo (Supp.1984). The circuit court denied the application for conditional release. The judgment is affirmed.

Quillar was charged with first degree murder and pled not guilty by reason of mental disease or defect, pursuant to Section 552.030.2 RSMo (Supp.1982) in January 1983. The state accepted the defense. The circuit court found appellant not guilty by reason of mental disease or defect excluding responsibility, and ordered her committed to the director of the Department of Mental Health on January 21, 1983. Section 552.040.1 RSMo (Supp.1984).

The chief of staff of St. Joseph State Hospital filed an application for conditional release on Quillar’s behalf on May 24,1984. The circuit court conducted a hearing at which two expert witnesses from the Missouri Department of Mental Health testified regarding Quillar’s present mental condition. Michael Crampton, the treating psychologist, testified that she did not then have, nor was likely to have in the reasonable future, a mental disease or defect rendering her dangerous to the safety of herself or others, or unable to conform her conduct to the requirements of law. Crampton testified that he had treated Quillar for a year prior to the hearing, and had administered various psychological tests, including the Minnesota Multiphasic Personality Inventory test, on three separate occasions. He opined Quillar was an “aggressively assertive” person with “high energy” and recommended a period of adjustment after her release, in a structured environment, with professional counseling, to enable her to reenter society.

Dr. Renendra Ghosh, a psychiatrist at St. Joseph State Hospital, then testified that Quillar is free from mental disease or defect, is no longer on antipsychotic medication, and is unlikely to relapse into dangerous behavior. He indicated that her problems had been'precipitated by drugs, especially PCP, which can lead to acute psychosis. Ghosh also testified that Quil-lar would need continued counseling after release to help her adapt to a new way of life and prevent further involvement with illegal drugs. Both experts stated that her mother could provide the type of structured environment that would be conducive to a successful reentry into society, but neither were acquainted with her mother. Dr. Ghosh recommended that Quillar receive outpatient care. He indicated that such care would be provided by the Community Placement organization of Western Missouri Mental Health. However, no one from Community Placement had evaluated Quillar at that time.

On appeal, Quillar argues that the trial court erred in denying her application for conditional release because the evidence demonstrated that she does not have and in the reasonable future is not likely to have mental disease or defect rendering her dangerous to the safety of herself or others or unable to conform her conduct to the requirements of law. Section 552.040 RSMo (Supp.1984). She suggests that she met all of the requirements for release with expert psychiatric testimony, and the court erred by determining that her release would not be successful.

One who has undergone a criminal commitment cannot be released unless a court finds “that he does not have and in the reasonable future is not likely to have a mental disease or defect rendering him dangerous to the safety of himself or others or unable to conform his conduct to the requirements of law.” State v. Davee, 558 S.W.2d 335, 338 (Mo.App.1977); Section 552.040.1 RSMo (Supp.1984). The burden is on the applicant for conditional or unconditional release to establish facts to support the release. State v. Johnson, 634 S.W.2d 231, 232 (Mo.App.1982); State v. Montague, 510 S.W.2d 776, 779 (Mo.App. 1974). The circuit court is not required to determine if the patient has a mental disease or defect that makes him dangerous, but need only determine if the proffered evidence clearly establishes his freedom from that condition. Johnson, 634 S.W.2d at 232. The court, not the treating physician, must be convinced that the applicant is free from dangerous mental defect. The court must ultimately decide whether the evidence presented clearly establishes that the conditions for release, prescribed by Section 552.040, have been met. Johnson, 634 S.W.2d at 232; Davee, 558 S.W.2d at 339. At the hearing, the court may properly require more evidence than a psychiatric opinion before concluding that the application for release should be granted. Davee, 558 S.W.2d 335, 338; Montague, 510 S.W.2d 776, 780.

The circuit court’s decree must be affirmed unless it (1) has no substantial evidence to support it, (2) is against the weight of the evidence, or (3) erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The court may choose to believe or disbelieve all or any part of the witness’s testimony and may find the plaintiff failed to meet the burden of proof even though his evidence was uncontradicted. State v. Pederson, 651 S.W.2d 639, 641 (Mo.App. 1983). The lower court’s holding will not be disturbed unless this court is left with the definite and firm conviction that the holding was wrong. Murphy v. Carron, 536 S.W.2d at 32.

The circuit court stated, “The question is whether or not there is any reasonable chance that she’s going to succeed,” and went on to find that Quillar had not presented evidence indicating a reasonable chance of her success in making the readjustment to society. Quillar argues that this demonstrates that the trial court decided the case on the wrong ground. The contention is that the trial court had no basis to refuse release because of such a concern but must release when the only expert evidence was that she was free from mental disease or defect.

First of all, the court was not bound to accept the expert testimony in this case since it was not directed to scientific fact. J.L.P.(H.) v. D.J.P., 643 S.W.2d 865 (Mo.App.1982). Most importantly, however, conditions of release were relevant to the issue.

Section 552.040.4 requires that the trial court grant or deny the application for a conditional release pursuant to the provisions of Section 632.385 RSMo (Supp.1980). Section 632.385.3 RSMo (Supp.1980) mandates that the agency under whose supervision the patient is placed agree in writing to assume that responsibility and submit a copy of the conditions for release to both the patient and the court. There was no evidence of an agency’s agreement to supervise Quillar’s treatment and the court specifically noted never receiving a plan of the conditions for Quillar’s release. Quillar failed to meet the Section 552.040 burden of proof because both Mr. Crampton and Dr. Ghosh recommended continued supervision and outpatient treatment of Quillar and because Quillar provided no evidence about where she would live and the treatment she would receive after release. Judgment affirmed.

All concur.


author: FLANIGAN, Judge.

text:
    Darold WIENERS, Plaintiff-Appellant, v. Joe D. MILLER, d/b/a Miller Insurance Agency, Defendant-Respondent.
    No. 13539.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 28, 1984.
    Charles M. Wesley, Waynesville, for plaintiff-appellant.
    William C. Morgan, Waynesville, P. Pierre Dominique, Jefferson City, for defendant-respondent.
   FLANIGAN, Judge.

Plaintiff Darold Wieners brought this action against defendant Joe D. Miller, d/b/a Miller Insurance Agency, seeking a judgment of $2,646.36. Defendant filed a motion to dismiss on the ground that the second amended petition failed to state a claim upon which relief can be granted. The trial court sustained the motion. Plaintiff appeals.

Plaintiff asserts that the trial court erred in dismissing the action “for the reason that the averments in the second amended petition state a cause of action for fraudulent misrepresentation.”

Rule 55.15, V.A.M.R., reads, in pertinent part: “In all averments of fraud ... the circumstances constituting fraud ... shall be stated with particularity. Malice, intent, knowledge, and any other condition of mind of a person may be averred generally.”

In an action based on fraud, all of the elements of fraud must be pleaded in the petition. Huttegger v. Davis, 599 S.W.2d 506, 511-512 (Mo. banc 1980); Weitzman v. Weitzman, 156 S.W.2d 906, 908 (Mo.1941); Heitman v. Brown Group, Inc., 638 S.W.2d 316, 319 (Mo.App.1982); Green Acres Enterprises, Inc. v. Nitsche, 636 S.W.2d 149, 153 (Mo.App.1982); Benson v. Geller, 619 S.W.2d 947, 948[2] (Mo.App.1981); Scott v. Gibbons, 611 S.W.2d 387, 388 (Mo.App.1981); Green v. Green, 606 S.W.2d 395, 397 (Mo.App.1980); Vangilder v. City of Jackson, 492 S.W.2d 15, 18[6] (Mo.App.1973).

“The elements of fraud are: 1) a representation, 2) its falsity, 3) its materiality, 4) the speaker’s knowledge of its falsity, or his ignorance of its truth, 5) the speaker’s intent that it should be acted on by the person and in the manner reasonably contemplated, 6) the hearer’s ignorance of the falsity of the representation, 7) the hearer’s reliance on the representation being true, 8) his right to rely thereon, and 9) the hearer’s consequent and proximately caused injury.” Sofka v. Thal, 662 S.W.2d 502, 506[2] (Mo. banc 1983).

Seeking to uphold the ruling of the trial court the defendant argues that the second amended petition is defective in failing to plead, or in pleading inadequately, elements 2, 4 and 8.

The second amended petition alleged the name and residence of each party. The other allegations, set forth in substance and in the order in which they appear in the pleading, are as follows:

1. Defendant is engaged in the general insurance business and does business as Miller Insurance Agency. On October 24, 1974, Central National Insurance Company, acting through defendant as its agent, issued a policy of insurance to one Hunter, insuring Hunter’s mobile home against fire. The policy was issued for a 12-month period commencing October 24, 1974. The policy [which was attached as an exhibit and incorporated in the second amended petition] named Hunter as the named insured and named a Waynesville bank as a loss payee.

2. The bank, as holder of a note in the amount of $2,646.36 dated May 13, 1975, had a security interest in the mobile home which had been mortgaged to secure the note. The signers of the note included plaintiff and one Kelley.

3. On August 4, 1975, Hunter assigned the certificate of title to the mobile home to Kelley and on August 18,1975, the Missouri Department of Revenue issued to Kelley a new certificate of title on the mobile home.

4. Plaintiff “ascertained” that Hunter “wanted to sell” the mobile home to Kelley, and plaintiff “contacted” the bank “who financed the mobile home for Kelley, giving a promissory note in the amount of $2,646.36 and a security agreement. Plaintiff co-signed the note.”

5. Plaintiff contacted Mary Rollins, an employee of defendant at defendant’s agency, and informed her that Hunter “was desirous” of selling the mobile home to Kelley, that the bank “had refinanced” the mobile home for Kelley, and that plaintiff was his co-signer on the note to the bank. “Plaintiff was told that they could not write another policy on the same mobile home, that Hunter would have to cancel the policy that was in force, and that it would be in force until the expiration date of October 24, 1975.” (Emphasis added.)

6. Plaintiff, in reliance on the false representation made by defendant’s employee Mary Rollins, “to-wit, that the insurance policy would be in force until October 24, 1975,” failed to take out other insurance on the mobile home.

7. On August 8, 1975, the mobile home was totally destroyed by fire.

8. On August 9, 1975, plaintiff reported the loss of the mobile home to defendant and was assured that the mobile home was covered by insurance. Two weeks later an adjuster from United Claims Service “prepared a proof of loss in the amount of $2,950 that was promptly mailed to United Claims Service,” and two weeks later the adjuster stated “that the insurance company was not going to pay the loss.” The following day plaintiff spoke with defendant who informed plaintiff that the insurance company “should pay the bank, the mortgagee.” Three days later defendant called plaintiff and informed plaintiff that defendant “could not get the insurance company to do anything and requested that plaintiff contact the Insurance Commissioner for the State of Missouri.” The prayer was for $2,646.36.

It is plaintiff's position, as previously stated, that the petition sets forth a cause of action for fraudulent misrepresentation. He makes no claim that the petition states some other cause of action. The language relied upon to constitute the misrepresentation is italicized in paragraph 5.

Paragraph 5 does not state the date of the conversation which plaintiff had with Mary Rollins or specifically that it occurred prior to the date of the fire. Plaintiff does not claim to have been an insured or a loss payee under the policy. It is also true that the alleged conversation dealt with the construction or effect of a legal document. It is unnecessary to consider whether any of the foregoing matters lends validity to defendant’s arguments that elements 2 and 8 were pleaded defectively.

This court holds that the second amended petition was defective in failing to plead element 4. With respect to the statement allegedly made by Mary Rollins, italicized in paragraph 5, there is no allegation that she (or, for that matter, defendant) had knowledge of its falsity or was ignorant of its truth. Although Rule 55.15 permits “knowledge” or “any other condition of mind of a person” to be “averred generally,” no such allegation, general or specific, is made.

The pleading under consideration was the second amended petition and plaintiff makes no claim that the trial court should have granted him leave to amend.

The order of the trial court, sustaining the motion to dismiss, is affirmed.

TITUS, P.J., and GREENE, J., concur.

      . See, generally, 16A Appleman, Insurance Law and Practice, § 8874.35, p. 368, et seq.


author: KAROHL, Judge.

text:
    Carolyn Sue BOLING, Plaintiff-Appellant, v. Randolph E. BOLING, Defendant-Respondent.
    No. 48347.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 31, 1984.

      John J. Schlueter, St. Louis, for plaintiff-appellant.
    Lawrence J. Permuter, Clayton, for defendant-respondent.
   KAROHL, Judge.

Wife appeals denial of maintenance, award of child support for three children, division of marital property and award of attorney’s fees in a dissolution proceeding. Wife contends that the denial of maintenance, the award of $1,000 per month for the support of three children and an award of $10,000 for attorney’s fees in addition to a previous award of $5,000 was an abuse of discretion. Wife also contends that valuing the family corporation on a net worth or net asset basis under evidence offered by husband and not on a capitalization of earnings method based on evidence offered by wife was an abuse of discretion and resulted in an unfair division of marital property.

The decree dissolved a ten-year marriage. After filing the petition for dissolution wife moved to Arkansas with the three children, ages six, seven and nine, to be near her parents. She works as a teacher’s aide in a public school for $418.56 per month. Before and during the marriage she worked in secretarial and office positions for like income. Husband’s income is from the ownership and operation of Bol-ing Concrete Construction Company, Inc. (Boling Concrete). The company was started and developed by the parties during the marriage. Husband’s income and the value of the company were disputed issues throughout the trial and are interrelated.

The court granted no maintenance, awarded $1,000 per month support for the three children. The company was awarded to the husband and the wife got an undeveloped parcel of real estate valued at $45,-000, personal property in her possession and a cash award of $2,500.

We find no error in the denial of maintenance, the award of child support or the determination and award of attorney’s fees. Although the wife testified that she did not need periodic maintenance that view was conditioned upon her receipt of one-half of the value of the company as she valued it, $250,000. However, there was evidence to support a finding that she was able to support herself. Givens v. Givens, 599 S.W.2d 204, 206 (Mo.App.1980). The award of child support was supported by the evidence and we find no abuse of discretion. Oberkrom v. Oberkrom, 608 S.W.2d 449, 450 (Mo.App.1980). Likewise, the award of $10,000 as an additional fee for wife’s attorney was within the trial court’s broad discretion. Gray v. Gray, 649 S.W.2d 908, 910 (Mo.App.1983).

The wife offered evidence that the books of account of the company were intentionally not kept in good order. Husband’s accountant agreed. Cash payments were not always reported as income. Husband spent considerable sums of company income to support a friend and her children without supporting entries in the company records. Company assets were titled in the names of others for non-business reasons. The parties signed a loan application in March 1980 which stated a monthly income of $6,666 and a value of $300,000 for the company. Husband testified that the value of the company on the application was less than its value at the time.

Wife’s expert testified the company was worth $443,808. He arrived at this value by capitalizing the income averaged over the years, factored by a percentage related to the median rate paid on corporate bonds. He rejected the net asset approach because it does not measure market value. Husband valued the company at $42,285 claiming the gross value of the vehicles and equipment is $97,785 with debts against the equipment of $55,500. His expert refused to give an opinion of the company’s net worth value but opined that if he applied a capitalization of income approach he would come up with $240,000 as the company’s value but he would not advise paying that much for the company. Husband’s expert preferred the net worth or net asset value method because the company was small, centered on one man, the husband, and the construction business was volatile. Based on the information available to him the husband’s expert could not determine whether the company records reflected all of the company assets or their values.

The trial court determined that the proper manner of appraisal or valuation was the net worth of the company’s assets as opposed to technical methods of valuation. The court noted that Boling Concrete Construction Company, Inc. has assets consisting of vehicles and equipment worth $97,-785 with debts against them in the amount of $55,500 and concluded that the corporation has a value of $42,285.

We find insufficient evidence to support the valuation of Boling Concrete. There was no error in the trial court’s decision to apply net worth or net asset valuation. Although the wife’s expert testified that that was not the appropriate method to be applied, the husband’s expert testified that it was and the court was free to make that determination from the evidence. Beckman v. Beckman, 545 S.W.2d 300, 301 (Mo.App.1976). The nature of the construction business, the husband’s key-man position in the successful operation of the company and the volatility of the two support the trial court’s judgment as to the appraisal form in the present case. However, the language of the decree and the husband’s evidence reveal that there was insufficient evidence to determine the value of the company on the net worth basis.

The decree indicates that the court considered only the vehicles and equipment and their value and the loans to the company affecting them. The wife, relying upon the alternative theory of value offered no evidence of the valuation of the equipment, the balances due on the loans, nor on any other assets or liabilities of the corporation.

The evidence indicates that Boling Concrete was a going business. Husband’s ledger sheet exhibit refers to cash, cash into cash account, checks, payroll checks, returned checks, (thus bank accounts) refunds, loans, deposits and savings. There was no balance sheet evidence, asset statements nor any other evidence from which the court could determine all of the assets and liabilities of Boling Concrete. The court dealt only with vehicles and equipment in making a finding of fact on the valuation of the corporation. This was wholly insufficient to render an accurate net worth or net asset valuation for the corporation when the evidence indicated that there were other assets.

Because the determination of the value of Boling Concrete as a marital asset is not supported by the evidence we remand for further proceedings. The value is significant because the decree indicates an intention by the trial court to divide the marital assets in more or less equal parts. We are unable to determine whether there would be the same or a different division if there had been sufficient evidence to support a finding of the net worth or net asset value of the company.

On remand either or both parties may supply the evidence necessary to properly value the company under the accounting approach accepted and adopted by the court. It will be for the trial court to make the determination of value and determine its proper division which may include a reconsideration of the division of other marital property.

We reverse and remand for further proceedings consistent with this opinion.

PUDLOWSKI, P.J., and GAERTNER, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. James FYNN, Defendant-Appellant.
    No. 48455.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 31, 1984.
    William J. Shaw, Public Defender, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   GAERTNER, Judge.

Defendant was convicted by a jury of stealing a motor vehicle and, as a persistent and prior offender, sentenced by the court to ten years’ imprisonment. We affirm.

At approximately 2:00 a.m. on October 13, 1981, a security guard at an apartment complex observed three men trying to put a 50 cc Suzuki motorbike into the back seat of an automobile. Two of the men were pushing the motorbike from its rear, while the third man in the back seat of the automobile was pulling on the handlebars. The security guard identified defendant as the man who was in the back seat pulling the motorbike. The owner of the motorbike, a resident of the apartment complex, had given no one permission to take or use the motorbike. The security guard detained the three men at the scene until the arrival of the police. Defendant contended he was asleep in the automobile and knew nothing of the theft of the motorbike.

On appeal defendant first contends he is entitled to a new trial because of the failure of the state to comply with his discovery requests for “all reports or statements of experts....” He contends the state failed to give him a copy of a fingerprint report which disclosed that a single fingerprint, that of a co-defendant, had been lifted from the motorbike by the police.

The state should have furnished the fingerprint report to the defendant pursuant to his timely request for discovery. Rule 25.03. However, under the circumstances of this case, the state’s dereliction does not warrant reversal. At the outset we note that the issue argued on appeal was not asserted in defendant’s motion for new trial. The motion charged trial court error in refusing to permit defendant’s counsel to argue to the jury the lack of fingerprint evidence, a very different contention than that made here. The matter has not been preserved for appellate review. Rule 29.11(d).

Nor do the circumstances warrant consideration of the issue as plain error. Defendant’s complaint is that he was not furnished a copy of the fingerprint report. His attorney acknowledged that he had been informed of the content of the report, that only one identifiable print had been lifted from the motorbike, that of a co-participant. The failure to detect an identifiable fingerprint of the defendant on the motorbike does not establish his lack of participation in the theft. We find no manifest injustice or miscarriage of justice from the failure to comply literally with the request for discovery. Rule 29.12(b).

Defendant’s final point on appeal is that the trial court erred in refusing to give the jury an instruction offered by defendant defining motor vehicle, motor bicycle and vehicle. Unless the Notes on Use to the applicable MAI-CR2d jury instruction expressly require or permit the definition of a term, word or phrase, it must not be defined even if requested by counsel or by the jury. MAI-CR2d 33.00, Notes on Use, Note 8; State v. Moland, 626 S.W.2d 368, 372 (Mo.1982). The applicable instruction submitted by the trial court was MAI-CR2d 24.02.1. The Notes on Use to this instruction neither require nor permit the definitions requested by defendant.

The judgment is affirmed.

PUDLOWSKI, P.J., and KAROHL, J., concur.