author: McDONALD, Judge:

text:
    Vicki C. HIBBS (now Tillman), Appellant, v. William CHANDLER and Alma Chandler, Appellees.
    Court of Appeals of Kentucky.
    Feb. 1, 1985.

      Steve P. Robey, Providence, for movant.
    J. Quentin Wesley, Wesley & Simpson, Morganfield, for respondents.
    Before COOPER, McDONALD and WHITE, JJ.
   McDONALD, Judge:

This matter has come to us by petition for discretionary review which we have granted.

Procedural Background

Movant, Vicki C. Hibbs, originally filed a complaint in the Webster District Court alleging that Joe Ed Chandler was the natural father of her son, Joseph Matthew Hibbs, born December 19, 1979. The putative father, Joe Ed Chandler, met an untimely death on March 30, 1979. He died intestate and no personal representative was ever appointed; therefore, there was never any formal administration of an estate.

The complaint named William C. Chandler, Jr., and Alma Gray Chandler as defendants therein. They are the parents of Joe Ed Chandler and his heirs at law. These putative grandparents were sued pursuant to K.R.S. 396.060, entitled LIABILITY OF HEIRS AND DEVISEES. The movant’s complaint made no demand for money support of the child but did request that paternity be declared. Proof taken by deposition showed that the sole purpose of the suit was to allow Vicki to obtain social security benefits on behalf of her child against Joe Ed Chandler’s account.

Based on the depositions, and other papers filed of record, the district court entered a summary judgment dismissing the complaint. The foremost conclusion of law made by the court stated, “that the plaintiff [Vicki C. Hibbs] has failed to persuade the court by clear and convincing evidence that Joe Ed Chandler is the father of the child, Matthew Hibbs.”

Factual Background

Movant, Vicki C. Hibbs, claims that she became pregnant by Joe Ed Chandler. The probable date of conception was March 17 or March 24, 1979, just several days before his untimely death, when she had intercourse with him in Bernie Hunt’s trailer in Marion, Kentucky. In deposition testimony Vicki stated that the affairs happened on Saturday nights: “More than likely it was after midnight because if there was a party going on it would be after midnight.” In the trailer also were Randy Guess and Randy Alcott.

Blood tests were ordered by the district court from the mother, child and putative paternal grandparents. The results con-eluded that Joe Ed Chandler fell within the 64% to 99% probability range. The expert physician recommended, however, that an HLA test be administered as it is considerably more precise in determining paternity. The district court refused to order the additional blood tests.

The proof that persuaded the district court to dismiss the complaint without empaneling a jury was: On one of the nights in question Joe Ed Chandler was arrested at about 11:00 p.m. in Uniontown which was 40 miles from Marion, and he was at work in the coal mines after midnight on the third shift; and on the other night in question Joe Ed was at work in the mines on the third shift after midnight.

The trial court reasoned that Vicki could not have had intercourse with Joe Ed in the Marion trailer when, in fact, he was elsewhere at the time.

An appeal was taken to the circuit court which affirmed the district court’s dismissal. In her petition for discretionary review the movant assigns eight points of error. We will discuss only those issues necessary to resolve this appeal.

I.

MOVANT ASKS IF THE TRIAL COURT ERRED IN RULING THAT MOVANT MUST PRESENT “CLEAR AND CONVINCING EVIDENCE” IN ORDER TO AVOID A SUMMARY JUDGMENT.

In a progressive opinion authored by Justice Aker of our Supreme Court in Fykes v. Clark, Ky., 635 S.W.2d 316 (1982), Kentucky broke with tradition by overturning the then existing law to the effect that an illegitimate child could not inherit from his putative father. Fykes provided that if the putative father died intestate and the paternity of the child was established by clear and convincing evidence, the illegitimate child could inherit from the father as well as the mother.

The question now presented is whether a trial court may apply the “clear and convincing evidence” standard to a summary judgment proceeding. Ordinarily, the “clear and convincing evidence” standard is reserved for trial-type settings. It is the evidential standard to be applied by the trier of the case to the facts presented. The trier must be persuaded by more than a simple preponderance. On the other hand, in a summary judgment proceeding under CR 56.03, the movant’s proof must persuade the court “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The standard under CR 56.03 is more exact. Case law under CR 56.03 tells us that if any material fact is in dispute a summary judgment should not be granted. The court should ascertain if the nonmov-ing party could strengthen his case at the trial giving him all benefit of any real doubt. If it appears impossible for the nonmoving party to produce evidence at the trial warranting judgment in his favor, only then should the motion be granted. See Robert Simmons Constr. Co. v. Powers Regulator Co., Ky., 390 S.W.2d 901 (1965); Roberson v. Lampton, Ky., 516 S.W.2d 838 (1974); and Harker v. Federal Land Bank of Louisville, Ky., 679 S.W.2d 226 (1984).

Under the circumstances here, the proper testing of the evidence was not applied to the summary judgment. Vicki’s proof, standing alone, was sufficient to support a judgment. That’s the test and, if applied, it would overcome any motion for summary judgment regardless of how strong the evidence to the contrary might seem. This result must be so because a jury may not believe any of the defense witnesses or proof. Therefore, “clear and convincing” evidence is a standard of persuasion to be applied by the trier of the fact in a trial setting. If applied to a summary judgment proceeding, “clear and convincing” evidence must demonstrate an impossibility under CR 56.03.

Did the making of findings of fact and conclusions of law in support of the summary judgment add significance to the evidence that Joe Ed Chandler was not Joseph Matthew Hibbs’ father? No. That the district court entered the tendered findings of fact and conclusions of law submitted by the winning party did not add any dignity or legal significance to the summary judgment. This is because the “clearly erroneous” rule under CR 52 applies solely to “actions tried upon the facts” and not to summary proceedings.

Whenever a trial court makes findings to explain the action it has taken or the court’s thought process, it is most helpful from the standpoint of appellate review. However, here, the district court judge merely signed what was put in front of him which had been prepared, at his direction, by the winning party. We note that counsel for the respondents properly advised the district court about the propriety of delegating its fact finding function, but to no avail. This shows the dilemma the lawyer is placed in. Doing what the trial court directs, which is contrary to the Civil Rules and case law, will, however, be a short-lived victory. Pence Mortg. Co. v. Stokes, Ky.App., 559 S.W.2d 500 (1977), states that findings of fact are not necessary under CR 56.03. Because the findings here were gratuitous on behalf of the district court, the sanctions for reversal under Callahan v. Callahan, Ky.App., 579 S.W.2d 385 (1979), are not applicable.

II.

DID THE TRIAL COURT ERR IN RULING THAT THE WEBSTER DISTRICT COURT HAD NO JURISDICTION OYER THIS MATTER?

The district court, by signing respondents’ prepared conclusions of law, concluded that because the primary purpose of the suit was to establish paternity for social security benefits, the proper forum was the Social Security Administration. This conclusion of law is contrary to K.R.S. 406.051, which states, “A district court has jurisdiction of any action brought under this chapter and all remedies for the enforcement of judgment ... for children born out of wedlock.” It was error for the district court to conclude otherwise.

III.

DID THE TRIAL COURT ERR IN RULING THAT AN INDISPENSABLE PARTY HAD NOT BEEN JOINED?

For the case to proceed safely to judgment under the direction in Fykes v. Clark, supra, a personal representative would have to be appointed, if necessary, by the movant’s request. Here, the mov-ant proceeded under K.R.S. 396.060 against the parents of the putative father. Section (1) of this statute says:

Heirs and devisees shall be liable for all debts and liabilities of the decedent to the extent of assets received from the decedent in the same manner as the heir would have been liable if the property devised had descended to the heir.

Clearly, it was not the intent of the legislature to have K.R.S. 396.060 used as a vehicle to establish paternity. It is a debt collection statute. Nevertheless, one would have to conclude that the responsibilities inherent to paternity are “liabilities” as contemplated by the statute. Therefore, the respondents, the heirs, may be named as parties although they may be dismissed upon a showing that no assets were obtained by them or that any assets of the decedent had been exhausted for payment of funeral, expenses. The district court was in error in dismissing the respondents until such proof was shown.

How does this affect the order that the putative grandparents must submit to blood tests? For as long as the putative grandparents are parties they are required under CR 35.01 to obey the orders of the court by submitting to the examinations. However, if they are witnesses and not parties, CR 35.01 does not apply. Witnesses would not need to submit to blood tests involuntarily. Here, it is uncertain as to how long the respondents will be parties. Naturally, the blood tests already taken may be used in any future trial, but whether it is appropriate to order additional blood tests will depend upon the Chandlers’ status at the time of the request.

We hold that the trial court erred in its conclusion that an indispensable party had not been joined because the record before us does not fully support such a conclusion.

IV.

LASTLY, THE MOVANT ASSERTS THAT THE COURT ERRED IN RULING THAT THE WEBSTER DISTRICT COURT LACKED VENUE IN THIS PATERNITY ACTION.

The district court reasoned that because the respondents and putative grandparents were residents of Union County, then the Webster District Court was not the proper venue. K.R.S. 406.151 provides that the paternity action may be brought in the county where the alleged father is present. Here, the alleged father is dead. Or, it may be brought in the county where the alleged father has property. Here, there was no estate or property shown in the record. Or, the action may be brought in the county where the mother resides. Here, that is Webster County. Regardless, CR 12.08 requires that improper venue be pled as a defense if raised in the answer or by motion. Otherwise it is waived. Jaggers v. Martin, Ky., 490 S.W.2d 762 (1973). As CR 12.08 was not complied with, the trial court erred in this regard.

In conclusion, it is the opinion of this court that the circuit court was in error by affirming the dismissal of movant’s complaint by the district court. The complaint should be reinstated and time allowed for the appointment of a personal representative of Joe Ed Chandler. The respondents are viable parties (defendants) until such time as a determination is made about the “extent of assets received by them,” if any, from the decedent.

The order and opinion of the circuit court is reversed.

All concur.


source: Caselaw Access Project

author: WHITE, Judge.

license: Public Domain

text:
    Fred JONES, Appellant, v. The MOUNT STERLING NATIONAL BANK, Appellee.
    Court of Appeals of Kentucky.
    Feb. 8, 1985.

      David E. Melcher, Swinford & Sims, Cyn-thiana, for appellant.
    John C. Fogle, Bryan & Fogle, Mount Sterling, for appellee.
    Before COMBS, MILLER and WHITE, JJ.
   WHITE, Judge.

The appellant seeks review of an order of the Nicholas Circuit Court sustaining the appellee’s motion to amend the return of service of process. In examining the record below, we have concluded the circuit court did not abuse its discretion in granting the motion. Accordingly, we affirm the judgment of the Nicholas Circuit Court.

This action (No. 79-CI-009) was commenced in January, 1979 when the appellee, Mount Sterling National Bank, instituted an action in Nicholas Circuit Court against the appellant, Fred Jones, to collect a sum owing on a note and security agreement. Summons on the complaint was issued by the clerk of that court on January 30, 1979, and given to Deputy Sheriff Ralph Brook-shire for service on the appellant. This was not actually accomplished until several days later, however, as the “Proof of Service” portion of the summons subsequently executed by Brookshire was dated February 12,1979. More importantly, while complete in all other respects, the “Proof of Service” contained no identification of the specific person upon whom summons was actually served. No timely response to the complaint was filed with the circuit court and, as a result, a default judgment was granted in favor of the appellee on April 9, 1979. The appellee then sought execution of the default judgment against the appellant’s personal property, but, when these efforts proved unsuccessful, contented itself with becoming a judgment lien creditor on the appellant’s real property.

The appellee made no further attempts to enforce its outstanding judgment against the appellant until late 1983 when a third party in a separate proceeding sought foreclosure on the same realty against which the appellee had asserted its judgment lien. At that time the appellant contested the validity of the appellee’s interest in his property by maintaining that he had never been served with process in the original action (No. 79-CI-009) against him. To substantiate this claim, he pointed to Deputy Brookshire’s failure to specifically identify him as the person served in the “Proof of Service” portion of the summons. The appellee responded by moving in the context of its initial action against the appellant (No. 79-CI-009) for an amendment of Deputy Brookshire’s return of service to correct this deficiency. Upon considering memoranda of law and affidavits submitted by the parties as well as the testimony of both the appellant and Brookshire at a hearing held on December 9, 1983, the Nicholas Circuit Court granted the appel-lee’s motion and ordered that the return of service be amended so as to designate the appellant as the person upon whom process was actually served. The appellant now seeks review of that order by this Court.

Motions to amend the return of service of process are governed by CR 4.16, which states:

The court in its sound discretion and on such terms as it deems just may at any time allow any summons or other process or proof of service thereof to be amended, unless it clearly appears that the substantial rights of the party against whom it was issued would thereby be prejudiced. (Emphasis added).

Clearly then, by the very language of CR 4.16, the question of whether a motion to amend a return of service of process is proper is one in which wide latitude must be given to the decision-making abilities of the trial court. This view that a court is vested with broad powers to remedy deficiencies in the return of service of process is universally accepted by the numerous authorities on the subject. See, e.g., 6 W. Bertelsman and K. Philipps, Kentucky Practice, CR 4.16, Comments (4th ed. 1984); 62 Am.Jur.2d Process §§ 172-173 (1972); 72 C.J.S. Process § 114 (1951). As a result, we are bound by the trial court’s decision to grant the amendment of the return of service of process unless we can conclude that such an action was an abuse of discretion and clearly erroneous.

This we cannot do. While our review of the testimony and other submissions concerning the motion to amend the return of service of process might lead us to an opposite conclusion, we still will not disturb the judgment of the trial court as the record contains ample evidence to justify its decision. In this regard, we would also note the unique ability of the trial court to view and question Deputy Sheriff Brookshire and the appellant during the hearing of December 9, 1983, and to gauge the credibility of their testimony. After listening to their in-court statements, the trial court chose to reject the appellant’s statements that he had not been served with process and accept instead those of Deputy Brookshire that he had indeed served process upon the appellant. Such a decision was well within the province of the trial court even though Brookshire was understandably unable to recall the specific circumstances of that event. Quinn-Marshall Co. v. Hurley, 209 Ky. 154, 272 S.W. 402 (1925). Consequently, we can find no abuse of discretion by the trial court and therefore affirm the judgment of the Nicholas Circuit Court.

All concur.


author: HOWERTON, Judge.

text:
    Carolyn MONARCH, Appellant, v. LODGE CONDOMINIUM COUNCIL OF CO-OWNERS, INC., Appellee.
    Court of Appeals of Kentucky.
    Feb. 8, 1985.

      James E. Vonsick, Louisville, for appellant.
    Grover C. Potts, Jr., Jo Ann Dale, Wyatt, Tarrant & Combs, Louisville, for appellee.
    Before DUNN, HOWERTON and WIL-HOIT, JJ.
   HOWERTON, Judge.

Monarch seeks to reinstate her complaint against the Council of Co-owners, which was dismissed by the Jefferson Circuit Court for failure to state a cause of action upon which relief can be granted. On the same date, the trial judge entered an additional order, obviously prepared by counsel for the Council of Co-owners, dismissing the complaint pursuant to CR 12 and CR 19. Whether the real reason for dismissal was failure to state a cause of action or for failure to join an indispensable party, we determine that the trial court erred, and we reverse and remand this action for further proceedings.

The record consists of the complaint, a motion to dismiss with a supporting affidavit and memorandum, and a response to the motion to dismiss. The verified complaint alleged that Monarch purchased a condominium apartment which leaked, resulting in substantial damage. Article III of the master deed of The Lodge Condominiums provides that the type of maintenance involved in this action shall be provided by the Council of Co-owners. The Council of Co-owners is an existing Kentucky corporation which is empowered to sue and be sued. Monarch sought specific performance of the terms of the master deed and a complete repair of all of the damage to her condominium. In the alternative, she asked for a rescission of her purchase contract and a refund of her investment. She also sought a declaration of rights, compensatory damages, and a permanent mandatory injunction against the appellee requiring it to perform its duties and responsibilities under the terms of the master deed. She also requested leave to amend her complaint upon a determination that other matters may be presented. She finally requested a jury trial upon any issues so triable and for her costs and a reasonable fee for her attorney, plus any just and proper relief to which she might be entitled.

The Council of Co-owners argued that the developer had not yet turned the project over to it and, therefore, the developer, The Lodge Company, was an indispensable party. It alleged that the proper defendant was the developer, because Monarch had requested a rescission of her contract and a refund of her investment, which was relief she could not obtain from the council.

An affidavit was filed to support the motion to dismiss, and it alleged that the lodge was developed by Lodge Company, a Kentucky partnership. The affidavit acknowledged that the Council of Co-owners was an existing Kentucky corporation which was formed to operate the condominium units, but it provided that the project had not yet been turned over to the council by the developer. It concluded that, since the sale of the unit was from the developer to Monarch, the council had no obligation with respect to the allegations in the complaint.

Although the motion to dismiss and the affidavit were undoubtedly made in good faith, we find the allegations to be meritless as a matter of law and the dismissal to be preposterous. Although Monarch may have sued the wrong party to rescind her purchase and obtain a refund, she clearly stated a cause of action and joined the proper party for enforcement of the terms in the master deed.

Kentucky’s condominium or “horizontal property law” is found in KRS 381.-850-.910. The definitions relating to the horizontal property law are contained in KRS 381.810. Some of the relevant definitions are as follows:

(4) “Co-owner” means a person ... or other legal entity, or any combination thereof who owns a unit within the building;
(5) “Council of co-owners” means all the co-owners as defined in subsection (4) of this section;
(6) “Developer” means a person who undertakes to develop a real estate condominium project;
* * * * ⅜ *
(10) “Master deed” or “master lease” means the deed or lease declaring the property to be a horizontal property regime; ....

KRS 381.815 concerns the establishment of a condominium property regime, and it reads:

Whenever a developer, the sole owner, or the co-owners of a building or buildings, constructed or to be constructed, expressly declare, through the recordation of a master deed or lease, which shall set forth the particulars enumerated by KRS 381.835, their desire to submit their property to the regime established by KRS 381.805 to 381.910, there shall be thereby established a condominium property regime.

KRS 381.835 sets forth the requirements of a master deed and how it is to be recorded together with a record of the floor plans. KRS 381.870 requires that all co-owners are bound to contribute, in accordance with their percentage of common interest, toward the expenses of administration and of maintenance, repairs and replacement reserves of the general common elements and for any other expenses lawfully assessed under the master deed or by the council of co-owners.

The master deed was filed and recorded in June 1979. The deed provided for the operation of the condominium units by the Lodge Condominium Council of Co-owners, Inc. Although the Kentucky statutes are silent as to when a council must commence operation, we must conclude that it is operational at the time the master deed is properly recorded. If the developer is the sole owner at that time, he or it is the only existing co-owner. He remains a co-owner and responsible for a proportionate share of all joint expenses until all individual units are sold. The developer and all co-owners are automatically members of the council of co-owners, whether the council is incorporated or merely a joint venture of individuals.

The developer of the Lodge Condominium is a partnership known as the Lodge Company. The partnership consists of four individuals, and those same four are named as members of the Board of Council of Co-owners, Inc., according to the by-laws of the council which were executed on the same day that the master deed was filed and recorded. These individuals, as developers and now co-owners, are liable to Monarch according to the terms of the master deed as it pertains to responsibilities of the council. Actually, as developers, if they are liable under a builder’s warranty, they would be solely liable, relieving Monarch of her share of the cost of repair as a co-owner.

We make no decision on what, if anything, Monarch may be entitled to receive by way of specific performance, damages, or mandatory injunctions. We merely conclude that she stated a cause of action against a proper party and, on remand, the court must determine what, if anything, she is entitled to recover. The partnership Lodge Company is not a necessary and indispensable party to part of the relief sought by Monarch. If she is not entitled to certain relief against the council, such as a rescission or refund, then so be it. On the other hand, if the Council of Co-owners decides that any recovery for correcting building defects should be guaranteed and paid by the developer, then the council may seek to join the partnership as a third party.

Monarch alleged in her complaint that the master deed specifically provides in Article III that the council shall maintain, repair, and replace at its expense those portions of her unit which are causing the leaks and the problems she suffers. If she can prove this, she will be entitled to some appropriate relief from the council. She stated a cause of action against a proper party, and the Jefferson Circuit Court erroneously dismissed her complaint.

This case is reversed and remanded for further proceedings.

All concur.


text:
    D.S., Appellant, v. F.A.H. and M.A.H., Appellees.
    Court of Appeals of Kentucky.
    Feb. 8, 1985.

      Michael J. Denney, Cumberland Trace Legal Services, Inc., Campbellsville, for appellant.
    Douglas E. Robertson, Bowling Green, for appellees.
    Before COOPER, McDONALD and WHITE, JJ.
   McDONALD, Judge:

In an adoption proceeding the trial court terminated the appellant/natural mother’s parental rights and granted the paternal grandparents’ petition for adoption. The natural mother appeals.

The appellant, D.S., gave birth out of wedlock to D.M.S. on April 18, 1980. T.F.H. is the recognized and undisputed natural father although he refused to sign the birth certificate.

D.S. moved around with D.M.S. for a year, living with parents and relatives, having periods of treatment for depression and emotional disorders in hospitals. D.S. requested help from the parents of her child’s father, the grandparents and appel-lees herein. She asked if they would care for D.M.S. on a temporary basis so she could get straightened out. F.A.H. and M.A.H., the paternal grandparents, took possession of D.M.S. on April 19, 1981.

D.S. again became pregnant and gave birth to another illegitimate child but gave the child up for adoption. She also had two abortions performed prior to the birth of D.M.S. D.S. has abused drugs and once overdosed on drugs trying to commit suicide. She has had extensive psychiatric treatment and is presently in a Transitional Living Center. D.S. readily admits that she is unable to care for D.M.S. but she does not want her parental rights terminated. She has kept in contact with her child, loves her and hopes at some time in the future to be reunited with D.M.S., provided she is able to care for her.

The cruelest act a court could perform would be to order D.M.S. into the custody and possession of D.S. However, the custody of the child was never an issue below. In fact, D.S. offered to give the appellees permanent custody of D.M.S. which would preclude any possibility of the child being removed from the home of ap-pellees on a permanent basis unless it was shown to be in her best interest. K.R.S. 403.340; Rose v. Ledford, 306 Ky. 662, 228 S.W.2d 957 (1948). At issue instead was D.S.’s parental rights. Although the appel-lees have no standing to bring an action to terminate D.S.’s parental rights, K.R.S. 199.603(7), their petition to adopt D.M.S., if granted, would have the same legal effect. K.R.S. 199.520(2); K.R.S. 199.570(3); and Jouett v. Rhorer, Ky., 339 S.W.2d 865 (1970). Their entitlement to such relief must, however, be predicated on clear and convincing evidence that D.S. has either abandoned the child or “substantially or continuously or repeatedly neglected or abused” the child. K.R.S. 199.603(l)(a), (b); K.R.S. 199.500(4); and Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

The proof below was submitted in part by deposition and heard in part by the trial court. The putative natural father, T.F.H., submitted a sworn affidavit admitting paternity of D.M.S. and acknowledging his consent to the adoption. The trial court rendered lengthy findings of fact outlining D.S.’s indiscretions and history of mental problems. It concluded as follows:

The probability of her recovery after over three years of experiencing her illness is remote, improbable and when balanced against the best interest of the child the proof is clear and convincing that her parental rights should be terminated. [Emphasis added.]

It further concluded the child had been abandoned and substantially neglected. We believe the trial court erred as a matter of law in reaching these conclusions. In the recent case of O.S. v. C.F., Ky.App., 655 S.W.2d 32 (1983), this court held as follows:

In adoption proceedings parental rights are not severed merely because a child would have a better home elsewhere or because the natural parent may provide less parental care than the adopting parent. Nor are they severed because a parent has temporarily abdicated his parental responsibility in favor of a kindred, as appears to have been the situation in the case at hand.... Generally, abandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child. Non-support does not itself constitute abandonment, especially where the child is supported by a volunteer, but it may be an element of abandonment. [Citations omitted.]

See also L.S.J. v. E.B., Ky.App., 672 S.W.2d 937 (1984), and Kantorowicz v. Reams, Ky., 332 S.W.2d 269 (1960), a similar adoption proceeding initiated by grandparents wherein the court held that, “Separation to constitute abandonment and neglect must be willful and harsh.” Likewise, K.R.S. 199.011 defines an abused or neglected child as follows:

[A] child whose health or welfare is harmed or threatened with harm when his parent, guardian or other person who has the permanent or temporary care, custody or responsibility for the supervision of the child: inflicts or allows to be inflicted upon the child, physical or mental injury to the child by other than accidental means; creates or allows to be created a risk of physical or mental injury to the child by other than accidental means; commits or allows to be committed an act of sexual abuse upon the child; mllfully abandons or exploits such child; does not provide the child with adequate care and supervision; food, clothing, and shelter; education; or medical care necessary for the child’s wellbeing .... [Emphasis added.]

Considering the above cited authorities it is clear that the trial court’s findings are insufficient to support either of its conclusions that D.S. abandoned or neglected her child. Her separation from D.M.S. is the result, as the court found, of her mental and emotional problems for which she has sought and continues to receive treatment. Likewise, failure to provide support has been due to her inability to work due to her mental problems. The situation that keeps her from being able to care for D.M.S. is no more self-imposed or deliberate than that of the natural mother in L.S.J. v. E.B., supra, who was incarcerated on a forgery charge. Thus it cannot be maintained, nor did the trial court find, that D.S.’s placement of the child with the appellees shortly after the child’s first birthday and her continued separation from her is in any respect willful. In fact, the record shows and the appellees concede that D.S. has by telephone communication and periodic visitation maintained contact with D.M.S.

The case of Santosky v. Kramer, supra, clearly sets forth the degree of protection the law affords parental rights. We believe the same procedural safeguards mandated therein should apply regardless of whether one is threatened with the loss of his or her parental rights pursuant to K.R.S. 199.60B, the involuntary termination statute, or by adoption of his or her child without his consent. The result to the natural parent is the same in either proceeding, that is, total deprivation of any legal or personal connection with the child. For that matter, we believe it incumbent upon the court when considering a petition to adopt pursuant to K.R.S. 199.500(4) to not only require clear and convincing evidence of abandonment or neglect, but to also consider any less drastic measures to accomplish the child’s best interest. See E. Chemerinsky, Defining the “Best Interests”: Constitutional Protections in Involuntary Adoptions, 18 J.Fam.L. 108-13 (1979). We think it would be rare when a child’s best interest would be served, in a battle between family members, by sustaining a petition for its adoption rather than awarding custody to the nonparent, if appropriate, and allowing for visitation between the parent and child. In the instant case the judgment does not reflect whether the trial court even considered this possibility.

The judgment of the Barren Circuit Court is hereby vacated.

All concur.


author: HIGGINS, Judge. BLACKMAR, Judge,

text:
    COLLINS & HERMAN, INC.—WELSBACH & ASSOCIATES DIVISION, a Missouri Corporation, and Ronald C. Casagrande, Plaintiffs-Appellants, v. ST. LOUIS COUNTY, Missouri, Defendant-Respondent.
    No. 66154.
    Supreme Court of Missouri, En Banc.
    Jan. 15, 1985.
    Rehearing Denied Feb. 26, 1985.
    Alan E. Dewoskin, St. Louis, for plaintiffs-appellants.
    Timothy L. Grosch, Asst. County Counselor, Thomas W. Wehrle, County Counsel- or, Robert H. Grant, Deputy County Counselor, Clayton, for defendant-respondent.
   HIGGINS, Judge.

Collins & Hermann, Inc., Welsbach & Associates Division and its surety, United States Fidelity and Guaranty Company, appeal a judgment in favor of St. Louis County, Missouri, assessing damages on an injunction bond. The judgment in the amount requested of $4,495.14 included an amount for attorneys’ fees for the services of the deputy county counselor who defended against the injunction. The Eastern District favored an allowance for attorneys’ fees but found this result barred by Uhrig v. City of St. Louis, 47 Mo. 528 (1871), which denied the City of St. Louis attorneys’ fees upon the dissolution of an injunction for services rendered by its salaried city counselor. Upon belief that this issue requires reexamination, the Eastern District transferred the case to this Court. Reversed.

On December 8, 1981, plaintiff filed suit against St. Louis County, certain of its officials and Whelen Engineering Company to enjoin the County from contracting with Whelen, a Connecticut corporation, for the installation of an emergency warning system in the County. Following two days of hearings, an order to show cause and temporary restraining order issued December 11, 1981. On the same day, an injunction bond was filed in the sum of $50,000.00 which bound plaintiff as principal and United States Fidelity and Guaranty as surety. On December 22, 1981, after two additional days of hearings, the trial court dissolved the temporary restraining order and entered judgment in favor of the defendants.

Defendants subsequently filed a motion for assessment of damages. The damages sought included attorney’s fees for the services of Deputy County Counselor Robert Grant rendered both before and after the issuance of the temporary restraining order. Grant estimated the reasonable value of his services based on the rate a private attorney with comparable experience would charge for this work. The County’s claim for damages also included an amount for time spent by other County employees over the same period. The trial court awarded Whelen $10,254.43 and the County $4,495.14. Plaintiff and its surety appeal only the judgment in favor of the County.

Appellant urges this Court to follow Uh-rig, supra, and reverse the damage award. Respondents concede that the award is contrary to Uhrig. They nevertheless argue for affirmance of the trial court’s assessment of damages, contending that Missouri law generally permits the recovery of attorney’s fees on an injunction bond, recovery deters frivolous resort to injunctive relief, the County incurred no liability to pay legal fees but sustained losses in the form of Mr. Grant’s time and effort expended to remove the injunction, allowing recovery to its co-defendant Whelen but not to the County creates an unreasonable distinction, and to deny recovery results in a windfall to appellant at the expense of the taxpayers. To the extent that Uhrig prevents recovery of attorneys’ fees by the County, respondents ask the Court to overrule that decision as inequitable and unsupportable. It is unnecessary to detail the arguments of the parties directed at the reasonableness of the fee award because the Court agrees with appellant that there is insufficient justification for an award to the County and declines to overturn its earlier decision.

The statutory requirement of an injunction bond and the allowance of damages upon dissolution of the injunction represents a departure from common law practice. Barring evidence of bad faith, at common law a plaintiff who secured an injunction that was subsequently dissolved incurred no liability; any damages that resulted from the injunction were attributable to the issuing court and were damnum absque injuria. Hamilton v. Hecht, 299 S.W.2d 577, 579 (Mo.App.1957). The defendant’s only recourse was an action for malicious prosecution. Id. To ameliorate the occasionally harsh consequences of this rule for enjoined parties who suffered damage and to discourage frivolous actions, the legislature enacted the provisions now codified as sections 526.070, 526.200 and 526.-210, RSMo 1978. Id. at 579; Comment, Damages Recoverable on Injunction Bonds in Missouri, 44 Mo.L.Rev. 269 (1979). These statutes and R. 92.09 provide the only basis for an assessment of damages arising from the issuance of an injunction. State ex rel. County of Shannon v. Chilton, 626 S.W.2d 426 (Mo.App.1981); Hamilton, supra, at 579-580.

The measure of damages recoverable on an injunction bond is the amount necessary to compensate a defendant for losses incurred that are the actual, natural and proximate result of the restraint, while it is in force. C.H. Albers Commission Co. v. Spencer, 236 Mo. 608, 139 S.W. 321 (1911). Only those damages actually sustained due to issuance of the injunction are recoverable. Waterman v. Waterman, 210 S.W.2d 723 (Mo.App.1948). In assessing damages on an injunction bond, a defendant’s reasonable attorneys’ fees for necessary services rendered to lift the restraint are a compensable element. C.H. Albers, supra, 139 S.W.2d at 326; Waterman, supra, at 726. The award of attorneys’ fees as damages in this context is an exception to the general rule that an unsuccessful litigant incurs no liability for the legal expenses of his adversary. C.H. Albers, supra, 139 S.W.2d at 326; Rook v. John F. Oliver Trucking Company, 505 S.W.2d 157 (Mo.App.1973); Note, Interlocutory Injunctions and the Injunction Bond, 73 Harv.L.Rev. 333, 334 (1959). The justification for allowing counsel fees upon dissolution of an injunction is “that the defendant has been compelled to employ aid and incur expense in ridding himself of an unjust restriction, which has been placed upon him by the action of the plaintiff.” Terminal Railroad Ass’n of St. Louis v. Schmidt, 353 Mo. 79, 182 S.W.2d 79, 82 (1944). See C.H. Albers, supra, 139 S.W.2d at 326; Kelder v. Dale, 313 S.W.2d 59, 62 (Mo.App.1958). The attorney is entitled to only those fees “which are fair and just and which adequately compensate him for his services.” Terminal Railroad, supra, 182 S.W.2d at 82.

In Uhrig, supra, plaintiff obtained an injunction against the City of St. Louis. The city counselor, a salaried official, represented the City in the action. Upon dissolution of the injunction, the City filed a motion to assess attorney’s fees as damages against plaintiff on the injunction bond. The Court reversed the fee award to the City. Noting the limitation to those damages the defendant actually suffers, the Court stated that the City, which paid no attorney’s fees, suffered none. The Court concluded:

The plaintiff felt aggrieved at an assessment upon his property, and enjoined it until its legality could be tested. The case was decided against him, he pays the costs and his own counsel fees; the city suffers no loss whatever, and should be satisfied without inflicting an arbitrary penalty upon him.

Id. at 529. The result in Uhrig is consistent with the prevailing view that bars recovery of counsel fees as damages upon an injunction bond where public counsel defends against the injunction “in his official capacity as a part of his regular duties for which he is paid a stated salary_” An-not., 164 A.L.R. 1008, 1115 (1946).

Uhrig, supra, and this action are similar, and respondent offers no reasons that compel the Court to reach a different result here. Respondent correctly contends that attorneys’ fees generally are a proper element of damages on an injunction bond, but adduces no evidence that the County incurred liability for the payment of counsel fees. The County pays its counselor a salary for representation in matters affecting the County, and it is not shown how his services in this suit burdened the taxpayers beyond their existing contribution to his salary. The same is true of the other County employees. Respondent is not entitled to attorney’s fees simply because Whelen recovered an amount for its counsel fees and the County may have asserted a similar claim had it retained private counsel. The argument that potential liability for attorneys’ fees deters frivolous suits has some appeal, but it must be balanced against the interest in enabling good faith plaintiffs to gain access to the courts without unnecessary penalties. Respondent does not allege that appellants acted in bad faith. A plaintiff who seeks injunc-tive relief must still satisfy the requisite standards before a court will grant the relief requested. Nothing in the authorities cited or the decision in this case exempts a party enjoining a governmental body from compliance with the bond requirement and its attendant liability should defendant sustain actual damage.

The judgment is reversed.

RENDLEN, C.J., and WELLIVER, BILLINGS and DONNELLY, JJ., concur.

BLACKMAR, J., dissents in separate opinion filed.

GUNN, J., dissents and concurs in separate dissenting opinion of BLACKMAR, J.

BLACKMAR, Judge,

dissenting.

The person who sues out a temporary injunction is unwilling to let the law take its normal course of decision following a full hearing. It is appropriate, then, that there be a response in damages if the temporary injunction turns out to be improvident. Rule 92.09, requiring an injunction bond, was drafted to require and to secure the payment of appropriate damages including attorney’s fees. This rule was based on statutory antecedents construed in Uhrig v. City of St Louis, 47 Mo. 528 (1871). The bond requirement may also impel the plaintiff to weigh carefully the decision to seek a temporary injunction.

At the time Uhrig was decided most public law officers worked on a part-time basis and were permitted to supplement their salaries through private practice. The law officer’s first duty was to perform the legal work of the employing entity. It is understandable, in this context, that the Uhrig court perceived no ascertainable damages.

The situation is wholly different as to the County Counselor’s Office in St. Louis County. The Counselor and assistants work full time. If required to defend improvident injunction actions, other work is necessarily affected. The services do not come free to the taxpayers. If the burdens increase, more assistants must be added.

If allowances are not made for the services of public legal officers, there will be a temptation to employ outside counsel, with possible inefficiencies and greater expense to the public.

I would not necessarily allow fees based on what a private lawyer would charge, if the services are rendered by a public legal officer, but would permit an allowance based on reasonable calculation of the attorney’s salary and office overhead. I would therefore reverse and remand for redetermination of the award to St. Louis County.


author: WELLIVER, Judge.

text:
    DEPARTMENT OF SOCIAL SERVICES, et al., Appellants-Cross-Respondents, v. VILLA CAPRI HOMES, INC., et al., Respondents-Cross-Appellants.
    No. 65786.
    Supreme Court of Missouri, En Banc.
    Jan. 15, 1985.
    Rehearing Denied Feb. 26, 1985.

      Andrew Rothschild, St. Louis, for respondents-cross-appellants.
    Gregory W. Schroeder, Dept, of Social Services, Gen. Counsel Div., Jefferson City, for appellants-cross-respondents.
    Harvey Tettlebaum, Jefferson City, for amicus curiae.
   WELLIVER, Judge.

Eleven nursing homes participating in Missouri’s Title XIX Medicaid program initiated a proceeding before the Administrative Hearing Commission challenging the amount of state reimbursements received under the Medicaid program. The homes contended that reimbursements for the years of 1977 and 1978 should have been computed on the basis of an informal agreement covering that period for the reason that the Medicaid plan and regulations could not be applied retroactively to claims prior to May 11, 1978. The Commission ruled this issue for the Homes and as to this issue the Department of Social Services appeals. The Homes also challenged the amount of reimbursements after May 11, 1978 alleging misinterpretation of the Medicaid plan and regulations. The Commission ruled this issue in favor of the Department and from this ruling the Homes appeal. Resolution of this issue may apply to reimbursements made both prior to and after May 11, 1978, if the plan is applied retroactively. In the interest of clarity, the parties will be referred to as the “Department” and the “Homes” except in the final judgment.

Petition for review was sought on both appeal and cross-appeal pursuant to § 536.-100-140, RSMo 1978. The circuit court affirmed both of the rulings made by the Commission. The appeal before this Court involves the construction and application of a state regulation, the State’s Medicaid Plan, 13 C.S.R. 40-81.080. in light of settled constitutional principles and accordingly is not within our exclusive jurisdiction. We retain jurisdiction, however, in the interest of judicial economy. Rule 83.06. State v. Higgins, 592 S.W.2d 152, 153, n. 1 (Mo. banc 1979). We reverse in part and affirm in part.

On or about December 20, 1979, each of the Homes filed a petition before the Administrative Hearing Commission. These petitions alleged that the Department improperly interpreted the State’s Medicaid plan, 13 C.S.R. 40-81.080, when it denied reimbursement by stipulated amounts for costs incurred during 1977 and 1978. The Homes also contested the Department’s reduction of the amount sought for certain reimbursement under the Medicaid program following May 11, 1978. The reductions were made by the Department by deducting certain expenses for inter alia, management fees, podiatrist fees and amounts in excess of an upper limit set by the Department. Additionally, the Homes objected to the Department’s reducing their reimbursements by the amount the Homes had received from providing room reservations and barber and beauty shop services. The Homes also unsuccessfully petitioned for a stay of the disallowance of reimbursement, claiming that they would be irreparably harmed unless the State reimbursed the questioned amounts.

In September 1980, the Administrative Hearing Commission granted the Homes’ motion to consolidate the eleven cases. The Commission held its hearing on December 16, 1980. The Department chose not to present any evidence and elected to rest upon the factual matters developed on cross-examination. The Homes subsequently filed a post-hearing brief in which, for the first time, they argued that the Medicaid plan in 13 C.S.R. 40-81.080 could not be applied to the reimbursement claims prior to May 11, 1978, the date when the rule became an effective state regulation. The Administrative Hearing Commission issued its findings of fact and conclusions of law in January 1983. The Commission accepted respondents’ argument and ruled that retroactive application of 13 C.S.R. 40-81.080 violated both the Missouri constitutional prohibition against retrospective laws, Article I, § 13, and certain federal regulations. In lieu of 13 C.S.R. 40-81.080 the Commission applied an informal Medicaid plan which it held governed reimbursements prior to May 11, 1978 and granted the Homes their claimed reimbursements. The Commission, however, held that claims for reimbursement of costs after May 11, 1978 were governed by 13 C.S.R. 40-81.-080, and it upheld the Department’s treatment of the claims under the regulation.

The Department appealed the Commission’s conclusion that 13 C.S.R. 40-81.080 could not be applied retroactively and that an informal Medicaid plan existed during the stated period. The Homes cross-appealed the Commission’s finding that the Department properly reduced the amount of reimbursement by the profit portion of room reservation revenues and barber and beauty shop revenues, pursuant to 13 C.S.R. 40-81.080(13)(A) for the period from May 11, 1978 to December 31, 1978. They also cross-appealed the Commission’s finding that the Department could impose an “upper limit” on the amount of reimbursement, pursuant to 13 C.S.R. 40-81.080(23) for the period from May 11,1978 to December 31, 1978.

The hearing before the Commission focused on the Department’s interpretation of its 13 C.S.R. 40-81.080. Only after the Commission completed hearing evidence did the Homes challenge the retroactive application of 13 C.S.R. 40-81.080 and assert the existence of an informal cost plan covering the period between July 1, 1976 and May 11, 1978. The only germane evidence concerning this period is a one page memorandum and a short description of the memo by its author.

Congress created the Medicaid program by enacting Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. The program establishes a cooperative effort between the states and the federal government to provide “financial assistance to participating States to aid them in furnishing health care to needy persons.” Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 2683, 65 L.Ed.2d 784 (1980). If a state adopts a Medicaid plan in compliance with Title XIX and duly promulgated federal regulations, “[t]he federal government provides matching funds to ... states which ... locally administer their own programs and transmit payments to providers of nursing home services.” AGI-Bloomfield, Convalescent Center, Inc. v. Toan, 679 S.W.2d 294 at 298 (Mo.App.1984). See also Illinois Council on Long Term Care v. Miller, 579 F.Supp. 1140, 1142 (N.D.Ill.1983). In 1967, Missouri elected to participate in this venture in cooperative federalism. 1967 Mo.Laws 325-28.

The thrust of this litigation centers around the State’s attempt to comply with a change in the federal Medicaid program. In 1972, Congress passed an amendment to Title XIX, adding Public Law 92-603, § 249, 42 U.S.C. § 1396a(a)(13)(E). The amendment required all states participating in the Medicaid program to adopt plans for reimbursement for skilled nursing facilities and intermediate care facilities based on a “reasonable cost related basis as determined in accordance with methods and standards which shall be developed by the state on the basis of cost-finding methods approved and verified by the Secretary.” Pursuant to the amendment, states were to adopt conforming reimbursement plans by July 1, 1976. The amendment was designed to facilitate higher quality medical care and foster more efficient use of Medicaid funds by reducing overpayments and underpayments that resulted from use of flat rates. 41 Fed.Reg. 27,300, July 1, 1976. One of the functions of this amendment was to encourage “state flexibility in the development of cost related reimbursement schemes.” American Health Care Association, Inc. v. Califano, 443 F.Supp. 612, 614 (D.C.D.C.1977). See also Illinois Council For Long Term Care v. Miller, 503 F.Supp. 1091, 1093 (N.D.Ill.1980); United Nursing Home, Inc., v. McNutt, 35 Wash.App. 632, 669 P.2d 476, 480 (1983). States could set “reasonable cost related rates on either a prospective or retrospective basis.” Alabama Nursing Home Ass’n v. Harris, 617 F.2d 388, 392 (5th Cir.1980). The 1972 amendment contemplated promulgation of federal regulations prior to 1976; these regulations would outline the parameters of an acceptable plan. By June 1976, however, the federal government had failed to issue any regulations.

Since its entry into the Medicaid program, the State has required that payments by the State are “to be made on the basis of the reasonable cost of the care or reasonable charge for the services as defined and determined by the Division of Family Services.” § 208.152, RSMo 1978. The Division of Family Services is also given authority to promulgate regulations defining reasonable costs. § 208.153, RSMo 1978. Prior to July 1, 1976, the State operated under what it called a negotiated rate system. The provider would approach the appropriate state agency and request a certain rate which reflected the amount sought for each Medicaid patient per diem. The two parties would thereupon negotiate and agree upon a rate until it was time to negotiate again. The Division of Family Services determined that this process could not be followed under the standard mandated by 42 U.S.C. § 1396(a)(13)(E). Left without any formal guidance by the federal government as of June 1976, the Department on June 26, 1976 sent an informal memorandum to all participating skilled nursing facilities and intermediate care facilities. The memorandum indicated that the Department would implement cost related reimbursement effective July 1, 1976, but the plan would not be filed with the Secretary of State’s Office until the final federal regulations were published by the Department of Health, Education and Welfare. The memorandum expressly stated that “[t]he plan will be retroactive to July 1, 1976.” This memorandum was written by the director of the Division of Family Services, Ewing B. Gourley. Mr. Gourley at the time of the hearing in this case had become the president of Health Projects, Inc., an owner of several of the Homes.

On July 1, 1976, when the states were to have the amendments to their state plans in effect, the Department of HEW published its final notice of rulemaking setting forth its approved cost-finding methods for reasonable cost related nursing home reimbursement, at 41 Fed.Reg. 27300-27308 (1976). Although this same regulation attempted to give the states additional time to implement a cost related plan due to the Department’s delay in publishing its rule, this part of the regulation has been held unconstitutional. Alabama Nursing Home Association v. Califano, 433 F.Supp. 1325 (M.D.Ala.1977). On February 1, 1978, the Department published its proposed state plan, 13 C.S.R. 40-81.080, entitled “Cost Related Reimbursement Plan for Long Term Care.” 3 Mo.Reg. 62-73. The plan was adopted by order of rulemaking, with certain changes, “effective” May 11, 1978. 3 Mo.Reg. 227-28. Judge Sommer-ville has succinctly summarized the import of this plan:

the plan promulgated by the Department of Social Services for determining reimbursement rates for nursing home services in Missouri under the Medicaid program could appropriately be described as a retrospective reimbursement plan. In essence, an estimated patient per diem reimbursement rate [is] established for each participating nursing home at the beginning of the state fiscal year and payments [are] made to participating homes on that basis. At the end of the fiscal year costs [are] reported by the participating homes to the Department of Social Services and the respective patient per diem rates were adjusted retroactively to reflect all allowable costs incurred throughout the preceding year, subject only to certain determinable limits. Additionally, a mechanism [is] provided for homes to obtain interim rate increases each quarter during the fiscal year.

AGI-Bloomfield Convalescent Center, Inc. v. Toan, supra, at 298-299. See also Scotland County Nursing Home v. Department of Social Services, Division of Aging, 675 S.W.2d 447, 448 (Mo.App.1984). It should be noted that 13 C.S.R. 40-81.080 has since been altered and Missouri now operates under a different Medicaid plan. See generally 13 C.S.R. 40-81.081-085.

The Department paid the Homes approximately $8,493,166.00 in interim payments between 1977 and 1978. Such payments apparently were based upon previous cost determinations, and the Homes assumed that the Department would conduct year end settlements to adjust the amounts paid in these interim payments so as to reflect costs incurred during the covered year. The Department did not conduct year end settlements and the Homes brought suit. The parties reached a compromise, whereby the Department’s cost report forms, developed according to the structure of the Medicaid plan outlined in 13 C.S.R. 40-81.-080, were distributed to the Homes sometime prior to May 1979. The Department thereupon, conducted a desk audit for the period covered by the forms. Adjustments were made according to the Department’s interpretation of 13 C.S.R. 40-81.080.

I

The initial question is whether the Department could apply 13 C.S.R. 40-81.-080 to costs incurred prior to May 11,1978. The inquiry focuses on Article I, § 13 of the Missouri Constitution, which the Homes argue prohibits retroactive application of the regulation. Article I, § 13 provides “That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges of immunities, can be enacted.” 40-81.080. Duly promulgated substantive regulations have the force and effect of laws. See Chrysler Corporation v. Brown, 441 U.S. 281, 301, 99 S.Ct. 1705, 1717, 60 L.Ed.2d 208 (1979); United States v. Nixon, 418 U.S. 683, 695, 94 S.Ct. 3090, 3100-01, 41 L.Ed.2d 1039 (1974). Cf. Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193 (Mo. banc 1972). While the Homes and the Administrative Hearing Commission correctly acknowledge that not all laws or regulations made pursuant thereto operating retroactively are invalid, they err in concluding that 13 C.S.R. 40-81.080 may not have retroactive application.

Statutes are generally presumed to operate prospectively, “unless the legislative intent that they be given retroactive operation clearly appears from the express language of the act or by necessary or unavoidable implication.” Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 34 (Mo. banc 1982), appeal dismissed 459 U.S. 1094, 103 5.Ct. 711, 74 L.Ed.2d 942. If the presumption normally favoring prospective operation is overcome, the inquiry focuses on whether the statute falls within the proscription against retrospective laws. This constitutional ban against retrospective laws applies only when the statute takes away or impairs any existing vested right. Lincoln Credit Co. v. Peach, supra, at 34-35; Barbieri v. Morris, 315 S.W.2d 711, 714 (Mo.1958); Clark v. Kansas City, St. Louis & Co. R. Co., 219 Mo. 524, 118 S.W. 40 (1909); Hope Mutual Ins. Co. v. Flynn, 38 Mo. 483, 484 (1866).

Application of 13 C.S.R. 40-81.080 to costs incurred prior to May 11, 1978, cannot be said to take away or impair any vested right. Nursing homes participating in programs such as the Medicaid program operate at a risk. Their ability to obtain funds depends upon the federal government’s willingness to continue the program. The amount of funds they obtain is also dependent upon changing federal guidelines, such as the switch to a “reasonable cost related basis.” Cf. Edgewater Nursing Center, Inc. v. Miller, 678 F.2d 716, 717-18 (7th Cir.1982). On the state level, the nursing homes rely upon the State’s continuing participating in the program. In the case at bar, the Homes must have been aware of these risks. Furthermore, the Homes were advised in June of 1976 that the federal government had altered the standard for cost reimbursement. At this same time, the Homes were informed that the State’s Medicaid plan would not be filed until the final federal regulations were published. The Homes were told that the plan would be retroactive to July 1, 1976. The import of this information must have suggested to the Homes that if they wished to continue in the Medicaid program they would have to accept reimbursement levels pursuant to a then undisclosed Medicaid plan. Knowing of this uncertainty, the Homes chose to accept the risk and cannot now be heard to complain.

The Homes allege that they have a vested right in an informal cost plan existing from July 1,1976 to May 11,1978. The Administrative Hearing Commission’s finding that such an informal plan existed is in our opinion unsupported by competent and substantial evidence upon the whole record. § 536.140.2(3), RSMo Cum.Supp.1984. The Homes and the Commission rely upon the June 25, 1976, memorandum of Ewing B. Gourley. This brief memorandum is insufficient for proof of an informal cost plan. The memorandum contained general information concerning billing practices by nursing homes, procedures for rate adjustment prior to formal implimentation of the cost plan, and recommendations for accounting methods and the maintenance of statistics. The Homes were also informed that participation agreements would be revised in accordance with the cost plan. This is insufficient evidence from which to conclude the existence of an informal cost plan, and is without sufficient detail to indicate proper resolution of respondents’ reimbursement claims. Although the record is unclear, apparently the amounts paid in interim payments were to be adjusted according to the amounts allowable under the plan ultimately filed with the Secretary of State’s office. This fact seems clear in light of the indication in the memorandum that the cost plan would be retroactive. Because these interim payments were adjusted according to the plan when adopted, the State complied with § 208.158, RSMo 1978, which requires that payments to federally aided programs can only occur if federal funds are provided or made available to the state pursuant to a federally approved state plan.

We do not believe the federal regulations invoked by the Commission vitiate the plan. There is no evidence of federal objection to reimbursement under the plan nor is there any showing that the Department’s level of reimbursement violates the federal substantive standard. 45 C.F.R. §§ 201.3(g), 205.5(b), Section 205.5(b). Cf. Kaye v. Whalen, 56 A.D.2d 111, 391 N.Y.S.2d 712, 717 (1977), aff'd 44 N.Y.2d 754, 376 N.E.2d 1327, 405 N.Y.S.2d 682 (1978). These federal regulations have not been invoked by other courts when considering reimbursement on a cost related basis before the state adopted an approvable plan pursuant to 42 U.S.C. § 1396a(a)(13)(E). E.g., Golden Isles Convalescent Center, Inc. v. Califano, 616 F.2d 1355 (5th Cir.1977), rev’d sub. nom. on other grounds Florida Department of Health v. Florida Nursing Home Ass’n, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (eleventh amendment bars retroactive monetary relief against a state by a federal court). See also Alabama Nursing Home Ass’n v. Harris, supra; Alabama Nursing Home Ass’n v. Califano, supra. In Kaye v. Whalen, the court after discussing the federal regulation requiring prior approval, unheld retroactive application of the State’s plan. Kaye v. Whalen, supra, 391 N.Y.S. at 716-17.

Having found no bar to retroactive application of 13 C.S.R. 40-81.080, we must determine whether the Medicaid Plan as set forth by the regulations was intended to operate retroactively. The conclusion that it was intended to operate retroactively is supported by numerous provisions which refer to July 1, 1976. 13 C.S.R. 40-81.-080(2)(A), (15)(a), (21)(8)1, (27)(E), (28KB). Such construction is totally compatible with the June 26, 1976 memorandum of the then director of Division of Family Services.

II

We have reviewed the issues presented by the Homes’ cross-appeal and decline to disturb the findings of the Commission relative to these issues. The Homes argue that for costs incurred after May 11, 1978, the Department improperly reduced the amount of reimbursement pursuant to 13 C.S.R. 40-81.080. The Homes contend that the regulation does not permit the confiscation of their profit from fees for providing room reservation and barber and beauty shop services. They also aver that the regulation does not authorize the imposition of an upper limit on the amount of reimbursement based upon rates established by the Department during the desk audit. We agree with the Commission’s conclusion that such arguments lack merit; and that the Department’s interpretation of the rule it was to implement is neither erroneous nor inconsistent with the regulation. The Department reduced the total allowable costs by the amount of revenue received from the two services. The clear language of the rule authorizes such a reduction. 13 C.S.R. 40-81.080(13)(A). The rule also allows the imposition of an upper limit — as determined by the Department — on the amount of reimbursement. 13 C.S.R. 40-81.080(23)(A)l. The law is well settled that nursing homes need not be reimbursed for all their costs, nor are they always entitled to their profit. See In re Madeline Marie Nursing Homes, 694 F.2d 433, 443 (6th Cir.1982); Massachusetts General Hospital v. Weiner, 569 F.2d 1156, 1158-59 (1st Cir.1978); Hempstead General Hospital v. Whalen, 474 F.Supp. 398, 409-11 (E.D.N.Y.1979), aff'd without op. 622 F.2d 573 (2nd Cir.1980); Briarcliff Haven, Inc. v. Dept. of Human Resources, 403 F.Supp. 1355 (N.D.Ga.1975); Haven Home, Inc. v. Department of Public Welfare, 216 Neb. 731, 346 N.W.2d 225, 230 (1984).

On the appeal of the Department (Appellants-Cross-Respondents) we reverse holding that reimbursements for costs between July 1, 1976 and May 11, 1978, were properly made pursuant to 13 C.S.R. 40-81.080. On the appeal of the Homes (Respondents-Cross-Appellants), we affirm and approve the Department’s interpretation and application of 13 C.S.R. 40-81.080 as it pertains to reimbursements for costs both between May 11, 1978 and December 31, 1978 and July 1, 1976 to May 11, 1978.

Reversed in part and affirmed in part.

HIGGINS, GUNN, BLACKMAR and DONNELLY, JJ., and GAERTNER and CRIST, Special Judges, concur.

RENDLEN, C.J., and BILLINGS, J., not sitting.

      . Villa Capri Homes, Inc. d/b/a Villa Capri Manor; St. Louis No. 4, Inc. d/b/a Delhaven Manor; Aurora Nursing Center, Inc.; Piedmont No. 1, Inc. d/b/a Clark’s Mountain Home; Health Services of Branson, Inc. d/b/a Rolling Hills Estates; Centralia No. 1, Inc. d/b/a Heritage Hall Nursing Home; Farmington No. 1, Inc. d/b/a Fleur de Lis; Van Burén No. 1, Inc. d/b/a Riverways Manor Nursing Home; Forest City Building Ltd. d/b/a Meadow Manor Nursing Home; Birchtree No. 1, Inc. d/b/a Birch View Manor Nursing Home; Salem No. 1, Inc. d/b/a The Seville.

      . The Division of Family Services is a division of the Department of Social Services. § 207.-010, RSMo 1978.

      . Cf. § 208.159, RSMo Cum.Supp.1984.

      . See also 42 Fed.Reg. 52827 (1977) (codified at 42 C.F.R. § 450.30); 43 Fed.Reg. 4861 (1978).

      . The Department contends that if there is a clear intent that a statute apply retroactively then there is an exception to the bar against retrospective laws. Such is not the case; the legislative intent is pertinent only to the construction of the statute and whether the presumption against retroactivity should not apply. This was our holding in Lincoln Credit Co. v. Peach, supra, and was intended by our holding in State ex rel. St. Louis-San Francisco Ry. Co. v. Buder, 515 S.W.2d 409 (Mo. banc 1974).

      . While the Homes also have participation agreements with the state which may establish certain rights, we need not address such a possibility because neither party introduced any evidence concerning the substance or nature of any participation agreements.

      . When patients leave the nursing home for short periods, they may reserve their bed by paying a room reservation fee.

      . There are two types of upper limits, the private pay cap and the class cap. Only the former is at issue on the cross-appeal. The nursing homes are required to maintain their private patient rate higher than their Medicaid patient rate, and the failure to do so results in an upper limit beyond which the state will not reimburse. Two of the Homes were new homes and thus under the plan were required to apply an artificially established low Medicaid rate for their first six months in operation. The Department after reviewing actual cost information, recalculated their rate at the end of the year and arrived at a Medicaid rate which was significantly higher than the rate in effect. The Department also averaged the private patient rate for the entire period and arrived at a lower rate. The result was that the artificial Medicaid rate had to be capped according to the upper limit established by the artificial private rate.

      . Amicus, Missouri Health Care Association, would have us hold, regardless of any federal law or state regulation, that § 208.152, RSMo 1978, governs the amount of reimbursement because it requires reimbursement on the basis of “reasonable cost.” This argument overlooks that the Division of Family Services is given the authority to define reasonable cost, and it fails to recognize other statutory law. See §§ 208.-153, 208.159, RSMo 1978.


author: PER CURIAM:

text:
    Thomas E. CHAPMAN, Appellant, v. AUTO-OWNERS (MUTUAL) INSURANCE COMPANY, Respondent.
    No. WD 35914.
    Missouri Court of Appeals, Western District.
    Jan. 8, 1985.
    D. James Mariea, Whitlow, Riley, Mariea & Dunlap, P.C., Fulton, for appellant.
    Patrick A. Baumhoer, Stockard, Ander-eck, Hauck, Sharp & Evans, Jefferson City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   PER CURIAM:

Chapman, an automobile dealer, appeals from the grant of summary judgment for Mutual and from the denial of his own motion for summary judgment. His two points on appeal involve the construction of an exclusion in a policy he maintained with Mutual. Affirmed.

Chapman’s “Dealer’s Blanket Policy,” for which he paid Mutual a quarterly premium of $438.00, on the automobiles he held for sale and resale, provided that it did “not cover: (c) loss suffered by the insured in ease he voluntarily parts with title to, possession of or custody of any automobile at risk hereunder, if induced to do so by any fraudulent scheme, trick, device or false pretense.” It is uncontested that Mutual also made available a “rider,” which, for a specified additional premium, covered losses resulting from that fact situation. However, Chapman only purchased the Blanket Policy, with its basic premium rate.

On June 7,1982, while the Blanket Policy was in force, Allen Varrin asked one of Chapman’s employees if he could test drive a 1978 Trans Am that Chapman held for resale. It was established at the hearing, and is not contested on appeal, that Varrin actually intended to obtain the car in order to skip parole in Missouri and flee to Canada. Chapman’s employee voluntarily parted with possession of the Trans Am upon false pretense by Varrin that he wanted to test drive the car. On June 8, 1982, after attempting to elude the Minnesota Highway Patrol, Varrin wrecked the automobile. Chapman requested that Mutual pay the loss pursuant to the Blanket Policy. Mutual refused, based on Exclusion (c). Both parties filed motions for summary judgment. The trial court denied Chapman’s motion and granted that of Mutual.

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to it as a matter of law. Rule 74.04(c) and (h); Bishop v. United Missouri Bank of Carthage, 647 S.W.2d 625, 626 (Mo.App.1983). The record must be reviewed in the light most favorable to the party against whom judgment was entered. Mercantile Trust Co. v. Carp, 648 S.W.2d 920, 923 (Mo.App.1983). Even under this rigorous standard, the grant of summary judgment for Mutual was appropriate.

Chapman asserts the court erred in denying its motion and granting Mutual’s motion because the proximate cause of the loss was the car crash and Varrin’s scheme or trick was merely an antecedent contributing circumstance. By this construction, Chapman ignores both the language of the exclusion and the intent of the parties.

In writing the Dealer’s Blanket Policy and stating various “exclusions,” Mutual limited the risks it was willing to accept for a certain premium. However, for an additional premium, it made available a rider that was expressly designed to cover the risk excluded in (c) above. Exercising business judgment, Chapman did not purchase the rider but merely bought the Blanket Policy. Varrin, with the intent to take the Trans Am and flee to Canada, took the car with Chapman’s approval, under false pretenses. Thus, one of the events excluded under the Blanket Policy occurred and from that moment forward, the Trans Am was uninsured. That the actual damage to the car occurred later, when it crashed, is irrelevant.

Citing Citizens Insurance Co. of New Jersey v. Kansas City Commercial Cartage, Inc., 611 S.W.2d 302, 307 (Mo.App.1980), Chapman also argues the “in case” language of exclusion (c) causes ambiguity and the ambiguity must be resolved in favor of the insured, thus covering the loss. A contract is not rendered ambiguous because the parties differ on its construction. Republic National Life Ins. Co. v. Missouri State Bank & Trust Co., 661 S.W.2d 803, 808 (Mo.App.1983). This exclusion is unambiguous. The language, clearly denominated an exclusion, contemplates that when a certain fact pattern (e.g., the dealer voluntarily parts with possession of the automobile and is induced to do so by a fraudulent scheme or false pre tenses) occurs, that automobile becomes uninsured and any loss thereafter occurring is not covered. The words “in case” plainly refer to the facts under which possession of the car was obtained and not to the event causing damage. Outwest Bean, Inc. v. National Fire Ins. Co. of Hartford, 514 P.2d 782 (Colo.App.1973); Insurance Co. of North America v. Lile, 321 S.W.2d 50 (Ky.Op.1959). The exclusion’s purpose becomes even clearer in light of the rider which Mutual admits would cover this situation but which Chapman chose not to purchase. Because the exclusion clearly and unambiguously applies to this situation, the Trans Am became uninsured when Chapman relinquished it to Varrin and the loss was not covered. The trial court correctly granted Mutual’s motion for summary judgment and correctly denied that of Chapman.


author: MAUS, Presiding Judge.

text:
    Calvin HANSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 13200.
    Missouri Court of Appeals, Southern District, Division Two.
    March 26, 1984.
    Motion for Rehearing or to Transfer Denied April 16, 1984.
    Application to Transfer Denied May 15, 1984.

      Margaret E. Branyan, Frank V. DiMaggio, Asst. Public Defenders, Springfield, for movant-appellant.
    John Ashcroft, Atty. Gen., David C. Mason, Asst. Atty. Gen., Jefferson City, for respondent.
   MAUS, Presiding Judge.

The movant was charged with having committed capital murder under § 559.005 (S.C.S.H.C.S.H.B. No. 150, approved June 23, 1975, effective September 28, 1975; repealed L.1977 H.B. 90 § 1, effective May 26, 1977) by stabbing to death Ollie Adkins on July 5, 1976. After a three-day trial, the case was submitted to the jury on April 13, 1977. The trial court instructed the jury on capital murder, second degree conventional murder (§ 559.020, RSMo, transferred to § 565.004) and conventional manslaughter (§ 559.070, RSMo, transferred to § 565.005). The jury returned a verdict of guilty of capital murder. Under § 559.011 (now repealed) he was sentenced to life imprisonment without eligibility for probation or parole for 50 years. The failure of the trial court to instruct on first degree felony murder (§ 559.007 effective September 28, 1975; now repealed) forms the principal basis for movant’s contention the 27.-26 court erroneously denied his demand for relief.

The movant’s conviction was affirmed on appeal in State v. Hanson, 587 S.W.2d 895 (Mo.App.1979). In this proceeding, he seeks to set aside his conviction by a motion under Rule 27.26. The opinion referred to contains a full resume of the facts. A brief summary is sufficient for the consideration of this appeal. On July 6, 1976, Adkins, with $200 in his billfold, left his home in Pacific to attend to business in Springfield. At approximately 6:45 p.m. that day, a witness saw an individual who was obviously Adkins engaged in a struggle with a man the witness could not identify. Shortly thereafter, Adkins’ body was found near the scene of the struggle. He had suffered nine stab wounds to his chest and abdomen. His billfold was gone. After remarkable investigative work by law enforcement officers, the movant was arrested on the parking lot of a bar at approximately 1:00 a.m. on July 7, 1976. There was no evidence he had Adkins’ billfold or the $200. However, he had a sheath knife taped to the lower part of his right leg. The knife bore fresh human blood, type A, with a PGM factor of 1. This corresponded with the blood of the victim. Movant had blood type 0. There was additional evidence that established the verdict was supported by the evidence as determined by the trial court and by this court on direct appeal.

By his first point, movant contends the trial court erred in not instructing on first degree felony murder and thereby he was denied his constitutional right of due process. He contends this instruction was required by MAI-CR 6.02 (effective September 28,1975) and the Notes on Use thereto. As stated in his brief, he relies upon cases from State v. Rapheld, 587 S.W.2d 881 (Mo.App.1979) through State v. Daugherty, 631 S.W.2d 637 (Mo.1982). For the purpose of this appeal, it will be assumed that at the defendant’s trial, an instruction on first degree felony murder — robbery (MAI-CR 6.19, effective September 28, 1975) was required as set forth in the Notes on Use to MAI-CR 6.02 (effective September 28, 1975).

The rule generally applicable is that instructional error is trial error not cognizable in a Rule 27.26 proceeding. Fulsom v. State, 625 S.W.2d 249 (Mo.App.1981); Stewart v. State, 578 S.W.2d 57 (Mo.App.1978). An exception exists only when such an error rises to the level of constitutional error. Swearingin v. State, 629 S.W.2d 560 (Mo.App.1981). It is also well established that “[t]rial errors cannot be brought into the scope of Rule 27.26 by simply alleging as a conclusion that they resulted in an unfair or impartial trial, or that they affected constitutional rights.” O’Neal v. State, 486 S.W.2d 206, 208 (Mo.1972).

The movant recognizes these general principles. However, he argues the error in question is such a constitutional error. He relies upon State v. Zweifel, 615 S.W.2d 470 (Mo.App.1981). He also cites Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), and language dealing with instructions on lesser included offenses, such as that contained in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973).

By the courts of this state, a constitutional error is generally defined as “one that is so glaring as to cause a substantial deprivation of the right to a fair trial.” Stewart v. State, supra, at 59. Also see Edwards v. State, 535 S.W.2d 124 (Mo.App.1976). Within that general statement, the following are examples of instructional errors held not to be a basis for relief in a 27.26 proceeding. Failure to instruct on good character. Brown v. State, 492 S.W.2d 762 (Mo.1973). The omission of the terms anger and fear in a second degree murder instruction. Swearingin v. State, supra. The failure to instruct on the necessity of determining the voluntariness of an oral statement. State ex rel. Tindall v. Peters, 516 S.W.2d 532 (Mo.App.1974). The failure to instruct on self-defense. Williams v. State, 550 S.W.2d 821 (Mo.App.1977). A deviation from MAI-CR 1.02. Stewart v. State, supra. Failure to instruct that there is no adverse inference from a defendant’s failure to testify. Thomas v. State, 485 S.W.2d 413 (Mo.1972). It has also been declared, “[t]he failure of the trial court to give a lesser included stealing offense instruction in a robbery case is instructional error to be raised on direct appeal and is not cognizable in a Rule 27.26 proceeding.” State v. Arnold, 632 S.W.2d 54, 55 (Mo.App.1982). In construing MAI-CR 6.02 and the Notes on Use thereto in considering a failure to instruct on second degree conventional murder or manslaughter, it has been declared, “[i]n any event, the failure to give such instructions would constitute at most mere trial error which would not be cognizable as part of a post conviction proceeding under Rule 27.26.” Fulsom v. State, supra, at 251.

No decision of this state has been found expressly defining such a constitutional error in the terms of instructional error. However, unless an instructional error is plain error within the meaning of Rules 29.12 and 30.20, it is difficult to rationalize that such error could be constitutional error. Upon this basis, decisions defining instructional error in the terms of plain error may be considered in determining an issue of alleged constitutional error. State v. Zweifel, supra. However, this opinion should not be construed as holding that plain errors are invariably equated with constitutional errors. An instructional error is plain error when “the instruction misdirected or failed to instruct the jury upon the law so as to cause manifest injustice or miscarriage of justice.” State v. James, 641 S.W.2d 146, 148 (Mo.App.1982). Also see State v. Harris, 636 S.W.2d 403 (Mo.App.1982).

The question presented by the defendant’s first point has been considered under the plain error doctrine. In State v. Bolder, 635 S.W.2d 673, 693 (Mo. banc 1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983), the court stated as follows:

After careful consideration we conclude that there has been no ‘manifest injustice or miscarriage of justice,’ id., that would necessitate reversal. The trial court instructed the jury on second degree murder and manslaughter, and the jury thus had the opportunity to convict appellant of a lesser offense. See Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Moreover, the evidence in this case would not support an instruction on first degree (felony) murder because none of the five enumerated felonies, § 565.003, RSMo 1978, was present. Due process therefore is not abridged. Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

After a conviction of murder in the first degree, in considering asserted plain error in the failure to give instructions on murder in the second degree and manslaughter, the court said: “We have reviewed the case and do not deem that manifest injustice or miscarriage of justice resulted from the failure to give these instructions.” State v. Kurtz, 564 S.W.2d 856, 862 (Mo. banc 1978).

In State v. McIlvoy, 629 S.W.2d 333 (Mo. banc 1982), the trial court instructed on capital murder, second degree conventional murder and culpable negligence manslaughter. The defendant was found guilty of capital murder. In holding that it was not plain error to fail to give an instruction on conventional manslaughter, the court said: “The jury was given the option of exercising leniency and convicting appellant of charges of lesser degree than capital murder. That it declined to do so makes it illogical to believe that it would have made any difference in the verdict had a conventional manslaughter instruction been given.” Id. 339.

The principles found in the cases above cited are embodied in recent cases of the United States Supreme Court dealing with the collateral review of instructional error. As recently observed, other than in death penalty cases, that court has never held that the Due Process Clause per se guarantees the right of a defendant to have the jury instructed on a lesser included offense. Beck v. Alabama, supra. In dealing with instructional error in general, that court has announced the following precepts:

In short, the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. Under Taylor, such a failure must be evaluated in light of the totality of the circumstances — including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors—to determine whether the defendant received a constitutionally fair trial. Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 2090, 60 L.Ed.2d 640, 643 (1979) (emphasis added).
We reaffirm, therefore, that any prisoner bringing a constitutional claim to the federal courthouse after a state procedural default must demonstrate cause and actual prejudice.... Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783, 801 (1982). [T]he degree of prejudice we have required a prisoner to show before obtaining collateral relief for errors in the jury charge is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even universally condemned.’
So stated, Frady’s claim of actual prejudice has validity only if an error in the instructions concerning an element of the crime charged amounts to prejudice per se, regardless of the particular circumstances of the individual case. Our precedents, however, hold otherwise. Contrary to Frady’s suggestion, he must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152, 169-170, 102 S.Ct. 1584, 1595-1596, 71 L.Ed.2d 816, 831-832 (1982).

This case is not controlled by Beck v. Alabama, supra, relied on by movant. First, in that case the Supreme Court was considering the validity of a sentence of death. Second, in Beck the jury was not instructed on any lesser included offense, but given the sole option of death or acquittal. It is significant that first degree felony murder was not, in the classic sense, a lesser included offense of capital murder. In State v. Baker, 636 S.W.2d 902 (Mo. banc 1982), cert. denied 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983), a decision to be applied prospectively, first degree murder was held to involve an additional element. “Thus, on the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason—its belief that the defendant is guilty of some serious crime and should be punished.” Beck v. Alabama, supra, 447 U.S. at 642, 100 S.Ct. at 2392, 65 L.Ed.2d at 406. In this case the jury was instructed on the lesser included offenses of second degree murder and conventional manslaughter. As observed in State v. Baker, supra, at 905, “examination of the elements of the homicides, notably the mental states, illustrates that it is second degree murder, not first degree murder, which would sufficiently test a jury’s belief of the crucial facts for a conviction of capital murder.” In this case evidence of the movant’s guilt was strong. The failure to instruct on first degree felony murder did not result in manifest injustice. State v. Baker, supra. Nor does the record demonstrate actual prejudice. Engle v. Isaac, supra. In the totality of the circumstances, the failure of the trial court to instruct on first degree felony murder did not deprive the movant of a fair trial. Kentucky v. Whorton, supra. The movant’s first point is denied.

Movant’s next point is that his trial counsel was constitutionally ineffective in two respects. To establish ineffectiveness to that degree, the burden was upon the movant to prove two factors. Decker v. State, 623 S.W.2d 563 (Mo.App.1981). First, that his counsel did not exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances. Second, if there is such a finding, that the movant was prejudiced thereby. Seales v. State, 580 S.W.2d 733 (Mo. banc 1979).

Movant first contends such ineffectiveness was established because his trial counsel did not request an instruction on first degree felony murder. It was the duty of the trial court to “instruct the jury upon all questions of law necessary for its guidance in returning a verdict.” Rule 28.-02(a). The instruction on first degree felony murder was not an optional instruction. Because of the mandatory duty of the trial court to fully instruct, movant has not established prejudice by the absence of such a request.

The movant next contends such ineffectiveness was established because trial counsel did not in his motion for a new trial preserve error because of the absence of such an instruction. It is true that appellate decisions have held the Notes on Use to MAI-CR 6.02, effective September 28, 1975, direct that such an instruction be given. State v. Rapheld, supra. However, the performance of trial counsel is to be measured against the state of the law when the motion for a new trial was filed. Trial counsel was not required to predict the development of the law with unerring accuracy. Pollard v. State, 627 S.W.2d 114 (Mo.App.1982); Larrabee v. State, 616 S.W.2d 542 (Mo.App.1981). The movant offered no evidence to establish trial counsel was ineffective in respect to that motion.

Commencing in 1975, the homicide laws and corresponding instructions have been the subject of revision, change and amendment. The language of the statutory enactments involved in many respects has been new and different. New concepts were presented to the bar and bench. The proper procedure has in many respects been less than obvious. The history of such change is outlined in State v. Goddard, 649 S.W.2d 882 (Mo. banc 1983).

For the disposition of this point, it is sufficient, by way of illustration, to note the following. Before 1975 there was but one offense of first degree murder. Under § 559.010, now repealed, that offense included any willful deliberate and premeditated killing and any homicide committed in the perpetration or attempt to perpetrate any of five named felonies. After the amendments of 1975, the statutes defined two distinct homicides, capital murder (§ 559.005, now repealed) and first degree felony murder (§ 559.007, now repealed). See the dissenting opinions in State v. Goddard, supra; State v. Wilkerson, 616 S.W.2d 829 (Mo. banc 1981). As noted, the latter was not, in the classic sense, a lesser included offense of the former. State v. Baker, supra. The Notes on Use to MAI-CR 6.02, effective September 28, 1975, are less than clear. This is emphasized when those Notes are compared with the Notes on Use to MAI-CR 6.02, effective March 1, 1975. It is significant that both series of Notes on Use treat the two types of homicides as distinct offenses. State v. Rapheld, supra, was not decided until two years after the motion for a new trial in question was filed. See State v. Wilkerson, supra. The requirement of instructing on first degree felony murder enunciated in that case was found in the ramifications of the newly enacted statutes. It was not a well established legal concept such as that involved in State v. Zweifel, supra, the case principally relied upon by movant. The movant has not met his burden in establishing that a reasonably competent attorney under similar circumstances would have asserted an error that well informed hindsight now makes apparent. For this reason, movant’s second point is without merit.

It is not necessary therefore to consider if movant has established prejudice by the omission of which he complains. However, it is appropriate to observe the omission did not pertain to a defense as was the case in State v. Zweifel, supra. Further, the instructions that were given provided the jury with an adequate opportunity to convict the movant of a lesser offense. State v. Bolder, supra. In State v. Kurtz, supra, the defendant was convicted of murder in the first degree by poison under § 559.010, now repealed. Upon review, the Supreme Court concluded that even though the Notes on Use to MAI-CR 6.02 required the same, the failure to give instructions on second degree conventional murder and manslaughter was not plain error. In a subsequent 27.26 proceeding, it was held failure to assert that omission in the motion for a new trial did not per se establish the ineffectiveness of counsel. In so holding, it was said: “The omission alone does not imply prejudice that would nullify her conviction, ... nor will we infer such prejudice from that omission when on movant’s earlier appeal the Supreme Court upheld her conviction as just.” Kurtz v. State, 645 S.W.2d 7, 9 (Mo.App.1982) (citation omitted).

By his last point the movant presents a novel question. The test of the blood from the movant’s knife necessarily consumed that specimen. The results of that test matched that specimen to the blood of the victim. The movant was given no notice the test was to be performed. Because he had no opportunity to test and cannot now test that specimen, movant contends the admission of the results of that test denied him his constitutional right of confrontation as guaranteed by the Sixth Amendment.

The movant recognizes the erroneous admission of evidence is trial error. He likewise acknowledges his failure to preserve his contention by objection and on direct appeal. However, in essence he argues that the allegedly inadmissible evidence resulted in actual prejudice and caused his trial to be fundamentally unfair within the rules cited in Dixon v. State, 624 S.W.2d 860 (Mo.App.1981). Therefore, he concludes that error may be considered in this collateral review.

Assuming, without deciding, the same to be the case, the point will be considered. The movant cites cases dealing with the extent of the right of cross-examination as guaranteed by the Sixth Amendment. Neither party cites authority dealing with the right to test. Independent research has developed cases considering such a right as a matter of due process. State v. Lowrance, 619 S.W.2d 354 (Mo.App.1981) held that the defendant was not denied due process or the right of confrontation because the contents of a hypodermic syringe were consumed by the testing procedure. In State v. Sprout, 365 S.W.2d 572 (Mo.1963), evidence of blood grouping tests was not inadmissible because of the inadvertent loss of the material. Compare State v. Bush, 595 S.W.2d 386 (Mo.App.1980); State v. Preston, 585 S.W.2d 569 (Mo.App.1979). State v. Carlson, 267 N.W.2d 170 (Minn.1978), declares that due process does not deny the admission of the evidence of a blood test because the specimen is so consumed.

State v. Carlson, supra, suggests where evidence might be consumed in testing, it is good practice to notify the defendant for his observation. Although “[i]t is generally held by the cases that the absence of the accused during the making of an experiment does not render inadmissible testimony of such experiment.” Annot., Test— Absence of Accused — Admissibility, 17 A.L.R.2d 1078 (1951). It has also been held the absence of notice to the accused does not make such evidence inadmissible. Corens v. State, 185 Md. 561, 45 A.2d 340 (1946). Also see 29 Am.Jur.2d Evidence § 821 (1967). State v. Carlson, supra, further suggests that an objection to such evidence will be considered only when a defendant has laid a foundation therefore. First, a defendant must by motion seek a sample of the specimen for testing. See State v. Lowrance, supra. The state must then produce a testable sample or establish its good faith in the absence thereof. In the absence of such production, and upon an adverse determination on the issue of good faith, on proper objection or motion, the trial court may consider the admissibility of the state’s test evidence. Similar authorities are collected in State v. Carlson, supra.

At an early date it was observed the Sixth Amendment was to preserve the common law right of confrontation of witnesses and not to broaden that right or disturb the exceptions thereto. Salinger v. United States, 272 U.S. 542, 47 S.Ct. 173, 71 L.Ed. 398 (1926). It has been recently declared, “[t]his reflects the truism that ‘hearsay rules and the Confrontation Clause are generally designed to protect similar values,’ California v. Green 399 U.S. [149], at 155, 90 S.Ct. [1930], at 1933 [26 L.Ed.2d 489 (1970)], and ‘stem from the same roots,’ Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210 [218], 27 L.Ed.2d 213 (1970).” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980). Movant confronted the scientist who performed the blood test. The scientist was much in the same position as a police officer who watched another perform an experiment. “Testimony as to what the detective observed with his own senses did not deprive defendant of his constitutional right of confrontation.” State v. Caffey, 404 S.W.2d 171, 177 (Mo.1966). Compare State v. Merritt, 591 S.W.2d 107 (Mo.App.1979). The movant’s last point is denied and the judgment is affirmed.

HOGAN and PREWITT, JJ., concur.