author: TITUS, Judge.

text:
    In the Interest of KEVIN.
    No. 13452.
    Missouri Court of Appeals, Southern District, Division Three.
    Jan. 25, 1985.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 15, 1985.
    Application to Transfer Denied April 2, 1985.

      No appearance for petitioner-respondent.
    Jeanene Moenckmeier, Costantinou & Moenckmeier, P.C., St. Louis, for appellant.
   TITUS, Judge.

Donna, the natural mother of Kevin, born October 4, 1978, was 17 years old at the time of her son’s birth. She now appeals from the May 25, 1983, order of the Juvenile Court of Butler County terminating her parental rights to Kevin. § 211.-482.

Our resolution of this appeal has been made more onerous than necessary by the misaction and nonaetion of various interested parties. No party concerned with the affirmance of the court nisi has filed a brief which, had that been done, might have aided our determinations. Many citations and much of the argument contained in the brief filed for Donna deal with adoption cases and problems arising under Ch. 453. This is not an adoption case but one wholly concerned with “Termination of Parental Rights,” § 211.442, et seq., which is a separate and complete code within itself. State ex rel. Brault v. Kyser, 562 S.W.2d 172, 174 (Mo.App.1978); In re S_ M_ W_, 485 S.W.2d 158, 164 (Mo.App.1972). The citations, points and arguments advanced by Donna’s counsel germane solely to adoption problems will not be entertained or belabored in our determination of this appeal.

The evidence and testimony in the cause was received piecemeal at four separate hearings held December 11, 1981, October 22, 1982, April 22, 1983, and May 4, 1983. Prompted by the request of Donna’s counsel at the last session, the court announced “that all previous testimony that’s been taken at various times ... will be a part of the evidence in this case here.” Though single when Kevin was born, Donna later married Kevin’s father only to divorce him soon thereafter in March 1979. Donna testified at the December 11, 1981, hearing that she was 21 years of age, that the whereabouts of Kevin’s father was then unknown to her and that she had been awarded custody of Kevin in the divorce action.

To better understand the bizarre evidence and ofttimes contradictory testimony of Donna, we list additional principal characters involved in the cause:

Kimberly (Kim) — An acquaintance and friend of Donna’s for perhaps two years before December 14, 1980.
Maryann — Met Donna through Kim. Phyllis — Did not meet Donna until December 14, 1980.
The Popes — Husband and wife residing in Poplar Bluff. They are “cousins” of Phyllis.

Exactly why Donna wanted to be shed of the possession of Kevin (she had considered putting him in a boys’ home) is not clear, although she expressed fear for his safety from an unidentified man who allegedly raped her. Donna acknowledged at the first hearing that from the time she divorced Kevin’s father in March 1979, until December 14, 1980, she “popped a lot of dope and smoked a lot of pot and all that.” She also admitted “shooting” Kevin “with pot” but not on numerous occasions. Subsequent to December 14,1980 (the date will be shown to be important later), Donna went to Texas January 4, 1981, when she married her current husband, Arvin, June 27, 1981. She has resided in Texas ever since and has given birth to a girl child who was 11 months of age on the date of the third hearing held April 22, 1983. When Donna initially moved to Texas, she , confessed she was then “shooting a little dope and smoking a lot of pot” before allegedly discontinuing the practices because “my husband disallows it.”

Donna, Kevin, Kim, Maryann and Phyllis resided in St. Louis County on December 14, 1980. Through some unexplained pre-arrangements among the four females, they met at Kim’s home on the last-mentioned date. Phyllis and Donna had not met prior thereto. As admitted by Donna, the meeting was held to arrange for Phyllis to receive from Donna possession of Kevin (then two years and two months of age), so that he could be delivered into the possession of the Popes (whom Donna had not then seen or known) to be taken to Poplar Bluff for residence. Kim, Maryann and Phyllis testified that after discussing the matter with Donna for some two hours to insure Donna understood the situation, Donna signed Juvenile Officer’s Exhibit A as follows:

“I, Donna ..., give temporary custody of my son Kevin ... to [the Popes]. This temporary custody is to remain in effect until such time as adoption papers can be completed giving [the Popes] full and permanent custody.”

As admitted by Donna at the first hearing, she signed, read and understood the exhibit as giving the Popes “full custody” of Kevin “until such time as there could be an adoption.” The exhibit dated “12/14/80” by Donna was penned by Phyllis and witnessed by Phyllis and Maryann. Without objection on Donna’s behalf, Kim, Maryann and Phyllis each testified Donna fully understood the meaning of the exhibit when she signed it.

Commencing with the second hearing held October 22, 1982, Donna began to waver from the sworn testimony given at the first session. By the time the last hearing was conducted May 4, 1983, Donna had completely reversed her previous re-countings even to the extent of claiming that she had not signed Exhibit A, which she previously testified she had done. Her latest testimony was that the consent she had signed to give the Popes custody of Kevin was only “a medical consent” so that the Popes could provide Kevin with medical care in the event he “got hurt.” In other words, it seems evident that Donna was clearly mistaken or lying when she testified at one time or another. However, her previous testimony that she delivered Kevin to Phyllis for redelivery to the Popes for final adoption purposes and her subsequent recounting the delivery was only temporary until such time as she could acquire permanent residency, is only one inconsistency in her testimony. Albeit Donna contacted Phyllis shortly after December 14, 1980, to learn if the Popes would give her money so she could go to Florida, she went to Texas. Also, even though she claimed at the last hearing that Kevin’s custody by the Popes was temporary, Donna admitted she had never contributed anything for Kevin’s support since she “voluntarily gave up custody of that boy.”

In our review of this court-tried proceeding we are to affirm the judgment below unless there is no substantial evidence to support it or it is against the weight of the evidence or it erroneously declares or applies the law. Conflicts in evidence are for resolution by the trial court, which has leave to believe all, part or none of the testimony of any witness. In Interest of D.A.F., 637 S.W.2d 780, 782[1] (Mo.App.1982); Matter of Adoption of Shelly _, 625 S.W.2d 183, 184[1, 2] (Mo.App.1981); In Interest of M_ K_P_, 616 S.W.2d 72, 80 (Mo.App.1981).

The final order of the court, in part, reads: “3. That the parent, Donna ... has consented in writing to the termination of her parental rights. 4. That it appears by clear, cogent and convincing evidence that the parent, Donna ... who is both legally required and financially able, has failed to support the child for a period of six months. WHEREFORE, the Court finds that the best interest of the child is served by terminating all parental rights of the parent, Donna_ Therefore, it is ordered, adjudged and decreed that the parental rights of Donna ... are hereby terminated as to the minor child Kevin....”

Under the law, § 211.447-2(2)(a)b., “2. The juvenile court may ... terminate the rights of parent to a child if it finds that such termination is in the best interest of the child and one or more of the following conditions are found to exist: ... (2) When it appears by clear, cogent and convincing evidence that one or more of the following conditions exist: (a) The parent has abandoned the child. The court may find that the parent has abandoned the child if, for a period of six months or longer for a child over one year old ..., either of the following has occurred: ... b. The parent has, without good cause, left the child without any provision for support and without any communication or visitation from the parent. Evidence that the parent has acted to support, to communicate with or to visit the child during the period may be disregarded if such acts of the parent appear to have been merely a token effort.”

If any single finding of the juvenile court in its order, supra, proves unshakable and firm as against Donna’s attacks, it will be unnecessary for us to pass upon the correctness vel non of the others as the existence of but one of the statutory grounds for termination of parental rights is sufficient provided termination is in the best interest of the child. In Interest of H.J.P., 669 S.W.2d 264, 273[13] (Mo.App.1984); Juv. Office of Cape Girardeau County v. M.E.J., 666 S.W.2d 957, 960[5] (Mo.App.1984).

In our opinion the evidence was sufficient to support the court’s obvious conclusion and finding under § 211.447-2(2)(a)b. The evidence demonstrated that Donna voluntarily abandoned Kevin to the Popes for six months or longer and, sans good cause, thereafter left Kevin with the Popes without making any provisions for his support and without actually undertaking any communication or visitation with the child. Phyllis repeatedly testified that when Donna signed Exhibit A, supra, and discussed the matter with her, Kim and Maryann, Donna understood that she was permanently giving up custody of Kevin. Donna’s testimony that after her December 14, 1980, meeting with the other three women she was “threatened” by Kim and Phyllis if she undertook to see or regain custody of Kevin was vehemently denied by the supposed threateners. Donna admitted she last saw Kevin December 14, 1980, and had never made any provision for his support nor had she physically undertaken to communicate or visit with the boy. Perhaps this was for the best as some exhibits in the cause were letters from Donna to female Missouri friends written after Donna had married Arvin. One letter recounts that “we always got a joint in our hand smoking it” and the epistles are generously laced with such expressions as “fuck”, “shit”, “pissed” and “fucked up”. One letter was accompanied by Donna’s drawing depicting the erect genitals of a male and the breasts of a woman, labeled “fried eggs”.

Donna married Arvin six months after giving Kevin to the Popes. Subsequent thereto she appeared to be sufficiently affluent from some unspecified source or sources to hire two sets of St. Louis lawyers and not only pay their fees but their expenses from that city to attend to filings and hearings in Poplar Bluff. This would also apply to Donna’s personal expenses incurred in traveling from Texas to attend client-lawyer sessions and the Missouri trials. Yet with such apparent opulence, there was no testimony, save for a very few isolated instances, that Donna undertook to support, communicate with or visit Kevin subsequent to December 14, 1980. We disagree with Donna’s claim that the court nisi did not find pursuant to § 211.-447-2(2)(a)b. but rather under § 211.447-2(2)(b). The latter separate reason for termination is predicated upon a parent’s neglect of a child under a court approved plan to correct specified neglect conduct of the parent. None of the elements contained in the separate condition specified in § 211.-447-2(2)(b) were alleged, proved or found. Neither was proof thereof necessary where there existed no allegation of neglect as defined in the statute and the actual cause pleaded and proved was predicated on § 211.447-2(2)(a)b.

One of Donna’s points relied on asserts the trial court erred in finding that Exhibit A, supra, satisfied the conditions of § 211.-447-2(1), i.e., that Donna consented in writing to the termination of her parental rights, because said exhibit was not acknowledged or properly witnessed as required by § 211.447-3. Even if this claim is ceded correct, as previously seen the correctness vel non of the particular finding is of no moment if, as we have determined, any other legal finding for termination of parental rights is found to exist.

The final point we consider is Donna’s contention the trial court committed plain error in permitting counsel for the Popes to appear and participate in the hearings nisi without first having formally received court authority and permission to do so. Albeit upon proper and timely objections it may have been improper for such counsel to participate in the hearings, the error, if any, is of no concern to us now as Donna’s counsel at no time during trial or in the motion for new trial etc., made objection to counsel’s appearance and participation. In re Marriage of Ryterski, 655 S.W.2d 102, 103[1] (Mo.App.1983). Likewise, we decline to undertake plain error review as now requested. Such review should be resorted to only in exceptional cases where the appellate court deems that manifest injustice has occurred. Cowden v. Sun Oil Company of Pennsylvania, 583 S.W.2d 547, 549—550[6] (Mo.App.1979). The plain error rule may not be invoked to excuse mere failure to timely and properly object. In Interest of H.J.P., supra, 669 S.W.2d at 271[5].

Judgment affirmed.

PREWITT, C.J., and HOGAN, J., concur.

MAUS, J., concurs in result only.

CROW, P.J., recused.

      . Statutory references are to V.A.M.S.


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Ted Fred EHLERS, Appellant.
    No. 13381.
    Missouri Court of Appeals, Southern District.
    Jan. 29, 1985.
    Motion for Rehearing or to Transfer Denied Feb. 13, 1985.
    Application to Transfer Denied April 2, 1985.

      Scott B. Tinsley, William H. Wendt, Springfield, for appellant.
    John Ashcroft, Atty. Gen., Dan Crawford, John M. Morris, Asst. Attys. Gen., Jefferson City, for respondent.
   FLANIGAN, Judge.

A jury found defendant guilty of assault in the first degree, § 565.050, by means of a deadly weapon, § 565.050.2, and he was sentenced to 18 years’ imprisonment. At the trial the defendant, who is not a lawyer, represented himself. .Defendant appeals.

The offense took place on October 20, 1982, at defendant’s home in Springfield. The state’s evidence shows that on that date defendant shot Douglas McQueen, the state’s principal witness, with a pistol, injuring McQueen’s hand. Also present during part of the episode was defendant’s wife Jo Ehlers, a defense witness. Defendant did not testify. There were no other witnesses to the assault. The two-day trial commenced on May 23, 1983.

On this appeal defendant asserts that the trial court erred in the following respects; (1) permitting defendant to represent himself, (2) failing to instruct the jury on the issue of self-defense, (3) receiving evidence concerning a shooting incident which occurred on February 20, 1983, involving defendant, (4) receiving evidence concerning an incident which occurred on May 22, 1983, involving a burglary at defendant’s residence, a knife attack upon defendant, and the theft of the knife by defendant’s unknown assailant, and (5) failing to instruct the jury on the issue of “extreme emotional disturbance.” For the reasons which follow, this court finds no merit in any of defendant’s contentions and affirms the judgment.

Defendant’s first point is that the trial court erred in permitting defendant to represent himself because: (a) the trial court did not adequately inform defendant of the dangers and disadvantages of self-representation, (b) the trial court did not adequately explore defendant’s intellectual capacity to make the decision to waive counsel, and (c) the trial court did not inform the defendant that he could not subsequently claim inadequacy of representation. These alleged deficiencies, defendant argues, made his waiver of counsel ineffective because it was not “knowing and intelligent.”

The Sixth and Fourteenth Amendments guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. A defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. A state may not constitutionally hale a person into its criminal courts and there force a lawyer upon him when he insists that he wants to conduct his own defense. The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. Although in most criminal prosecutions a defendant could better defend with counsel’s guidance than by his own unskilled efforts, the defendant must be free personally to decide whether in his particular case counsel is to his advantage. When a defendant manages his own defense he relinquishes many of the traditional benefits associated with right to counsel. For this reason, in order to represent himself, the defendant must knowingly and intelligently forgo those relinquished benefits. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta, supra, 95 S.Ct. at 2541.

Missouri, prior to Faretta, recognized a criminal defendant’s right to represent himself. The right is based on Art. 1-, § 18(a) of the Missouri Constitution, and Rule 31.02(a). See Bibbs v. State, 542 S.W.2d 549, 550 (Mo.App.1976), and the authorities cited there.

Sec. 600.051 authorizes the trial court to permit the waiver of counsel to be filed in any criminal case wherein a defendant may receive a jail sentence or confinement if the court first determines that defendant has made a knowledgeable and intelligent waiver of his right to assistance of counsel and the waiver is signed before and witnessed by the judge or clerk. The statute lists six items of information which the waiver must contain and which the defendant has read or which have been read to him before he signs. Rule 31.02(a) imposes upon the trial judge a duty to inform the defendant of his rights and to find that the defendant has intelligently waived his right to counsel.

In various settings a waiver of counsel has been held valid, State v. Thomas, 637 S.W.2d 81 (Mo.App.1982); Powell v. State, 581 S.W.2d 37 (Mo.App.1979); State v. Quinn, 565 S.W.2d 665 (Mo.App.1978); State v. Gaye, 532 S.W.2d 783 (Mo.App.1975), or invalid, State v. Tilley, 548 S.W.2d 199 (Mo.App.1977). In State v. Quinn, supra, an appendix to the opinion suggests topics which the trial judge should discuss with the defendant in determining the adequacy of the waiver of counsel. The state has the burden of producing evidence of a voluntary and understanding waiver. State v. Tilley, supra.

At his arraignment and preliminary hearing defendant appeared in person and by counsel. Thereafter both sides conducted discovery through counsel. On February 3,1983, the court sustained a motion by defense counsel to withdraw.

On February 7, 1983, a hearing was held before Judge Max Bacon at which the defendant appeared pro se. The defendant stated to the court, “I am requesting, again, that I be able to represent myself in this case.” A signed waiver, in the form prescribed by § 600.051, was obtained from the defendant in accordance with the procedure set forth in the statute.

Defendant informed Judge Bacon that he was financially able to employ counsel but preferred to represent himself. Judge Bacon advised the defendant on the perils of self-representation. The defendant, who was 47, informed the court that he had been “house attorney for a truck line” for several years, and participated in several trials, as counsel, under Rule 172 of the I.C.C. The defendant said that he had cross-examined witnesses and had been cross-examined himself “for several years.” He told Judge Bacon that that experience would help him in representing himself in this case and added, “I just feel that since I was at the scene of the crime that I am more qualified to represent myself than anyone else.”

The defendant was informed that there were many things a lawyer might know how to do in his defense which defendant might not know how to do. These things included discovery, preparing the case for trial, finding out what the prosecutor’s case is, and finding out what evidence and arguments there are on defendant’s behalf. The defendant was told that at the trial itself a lawyer would know how to select the jury, examine and cross-examine witnesses, prepare instructions, and make an opening statement and closing argument. Judge Bacon told the defendant that a person who is not trained in the law has a distinct disadvantage with respect to those things. Defendant stated that he understood but that he still desired to represent himself. Judge Bacon said he would permit the defendant to do so.

On the morning of the trial, and before it commenced, Judge J.A. Appelquist, who conducted the trial, had an extended colloquy with the defendant with regard to self-representation. The defendant informed the court that he had a tenth grade education, that he had no difficulty in understanding English, that he understood that the state would be represented by a licensed attorney, and that he knew that he had a right to an attorney. He informed the court, “I have to represent myself and such is my intention.” The written waiver, previously obtained on February 7, was brought to the attention of Judge Appel-quist. The prosecutor called the court’s attention to State v. Quinn, supra, and its appendix.

From the foregoing it is clear that there is no factual foundation for prongs (a) and (b) of defendant’s first point. Defendant cites no authority for the proposition that the failure of Judge Bacon and Judge Ap-pelquist to inform defendant expressly that he could not subsequently claim inadequacy of representation makes the waiver invalid. Sec. 600.051 does not specifically require that item of information be imparted but it is set forth in the appendix to State v. Quinn. On the instant record this court holds that defendant’s waiver of counsel was a knowing and understanding one. State v. Thomas, supra; State v. Tyler, 622 S.W.2d 379 (Mo.App.1981); State v. Nicolosi, 588 S.W.2d 152 (Mo.App.1979); State v. Rollie, 585 S.W.2d 78 (Mo.App.1979); Powell v. State, supra; State v. Gaye, supra. Defendant’s first point has no merit.

Defendant’s second point is that the trial court erred in failing to instruct on the issue of self-defense because there was evidence, contained in the testimony of Jo Ehlers, that defendant “attempted to terminate the confrontation [with McQueen] and thereafter McQueen went toward his gun when defendant shot him.”

Only McQueen and defendant’s wife Jo Ehlers testified to the circumstances leading up to and including the assault. Defendant makes no claim that McQueen’s testimony entitled defendant to an instruction on self-defense.

McQueen, a Greene County deputy sheriff, became acquainted with defendant around October 1, 1982. At defendant’s request McQueen taught defendant how to load and use a pistol which defendant had obtained. The two men went to a target range six or seven times over a two-week period.

On October 19, the day before the shooting, McQueen went to defendant’s home to meet defendant. They had planned to obtain some pumpkins to “resell for Halloween.” According to McQueen, defendant was “passed out.” Jo Ehlers asked McQueen about rumors that defendant was “running around.” McQueen testified that he “did not confirm or disconfirm” the rumors because he did not want to get “involved in such conversations.”

McQueen testified that defendant telephoned him early in the morning of October 20 and said, “There is no big problem but I need to see you.” McQueen drove to defendant’s house and arrived at 6:15 a.m. McQueen had his .45 caliber revolver in his right coat pocket because, he said, he was carrying $1,500 with which to buy pumpkins.

McQueen testified that Jo Ehlers met him at the door, let him in and led him down the hall to the recreation room where McQueen sat on a couch. Mrs. Ehlers sat down nearby and was crying. Defendant came in from the kitchen. According to McQueen, defendant had a .38 caliber revolver in his left hand and a .38 automatic in his right hand. The .38 revolver was owned by McQueen and he had previously left it there.

McQueen testified that defendant screamed obscenities and said over and over, “I’m going to kill you.” Defendant’s face was flushed and his eyes were bloodshot. McQueen thought defendant had been drinking.

McQueen said that defendant ordered him to strip and McQueen undressed “all the way to my socks and underwear.” Defendant’s son Randy came into the room. Defendant put a tape recorder on the table in front of McQueen and told McQueen to turn it on and hear “why I’m going to kill you.” Randy turned it on. “It was Jo’s voice explaining to [defendant] that I said he was running around. It seemed like the tape played a long time but I am sure it was just seconds. While the tape was playing defendant was waving both guns and hollering he was going to kill me. Both guns were cocked fully back. After the tapes played a while defendant went into another rage and extended his right arm out. I felt he was going to shoot me then and I fell to the floor and as I did I heard a gunshot. My .45 was in my right coat pocket of my leather coat. The coat was to my left side.”

McQueen also said, “When defendant fired I went to the floor. I was still watching him the best I could. I threw my hand up to protect my head. After I started to look up, defendant leaped the few feet there was between us and fired again at point blank range. I was hit. It went in my hand cracking this knuckle and twisting this finger and came out the palm of my hand.

“There was hardly any time between the first shot and the second shot, almost contemporaneous. As I was shot I headed toward the door and I crawled as fast as I could down the hallway toward the front door_ I succeeded in getting out — still crawling. I got to my truck. Just before I got to the driver’s side defendant came out on the front porch and hollered, ‘I’m still going to kill you,’ and fired several more times. Defendant still had both guns in his hands. I drove to the hospital_

“I know my gun was in my coat to the left. I did not ever see that gun after I was forced to strip. I did not at any time move toward my gun when I was shot. I had a knife in my right pocket but it never left my pants pocket and I did not exhibit the knife to defendant. I never exhibited the .45 revolver to defendant.”

Defendant did not testify nor did his son Randy.

Jo Ehlers testified as follows:

“I was not in the room when the shots were fired. Before the shots were fired McQueen was sitting on the sofa and I was sitting in the chair next to the sofa. When I heard the shots, I was in the back bedroom. While McQueen was sitting on that couch, McQueen had a gun on the floor. When McQueen arrived that gun was in McQueen’s right hand coat pocket. That gun ended up on the floor ‘when [defendant] told [McQueen] to take ...’ ”

Defendant then elicited the following testimony from his wife on direct examination:

“Q. (By the defendant) Did you see anything before you left the room?
A. All I saw was the gun laying on the floor.
Q. Where was Mr. McQueen at that time?
A. He was on the couch, and you had told him to get out. When I left the room, you had — before I left the room, you told him to get out. And when I left, Doug was going down to the floor towards the gun. I got up and left.”

On cross-examination by the prosecutor, Jo Ehlers testified that she could not swear as to whether defendant had two pistols in his hands. “I know of one.” She testified she left the room and did not see anyone shooting at anyone else. “I did not see the shots fired.”

Sec. 563.031 provides, in pertinent part:

“1. A person may ... use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself ... from what he reasonably believes to be the use or imminent use of unlawful force by such other person, unless:
(1) The actor was the initial aggressor; except that in such case his use of force is nevertheless justifiable provided
(a) He has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; ...
4. The defendant shall have the burden of injecting the issue of justification under this section.”

The issue of justification is not submitted to the jury unless supported by evidence. See § 556.051(1).

It is defendant’s position that Jo Ehlers’ testimony constituted evidence that defendant, although the initial aggressor, had withdrawn from the encounter and effectively communicated such withdrawal to McQueen but that McQueen persisted in continuing the incident by the use or threatened use of unlawful force, thereby satisfying the requirements of § 563.-031(l)(a).

Many Missouri cases discuss the concept that withdrawal by the initial aggressor from the encounter, coupled with effective communication of that fact to the other person, revives the former’s entitlement to self-defense. In some cases the evidence was insufficient to entitle the defendant, under the withdrawal doctrine, to a self-defense instruction, State v. Spencer, 307 S.W.2d 440 (Mo.1957); State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42 (1937); State v. Dunlap, 639 S.W.2d 201 (Mo.App.1982). In State v. Mayberry, 360 Mo. 35, 226 S.W.2d 725 (1950), the evidence was sufficient. See, generally, 55 A.L.R.3d 1000 (Withdrawal reviving right of self-defense).

If there is substantial evidence putting self-defense in issue, it is the duty of the trial court to instruct on self-defense as part of the law of the case and this is true whether or not the defendant requests the instruction. State v. Pride, 567 S.W.2d 426, 430-431[3-4] (Mo.App.1978). See also MAI-CR 2.41.1. The evidence must be reviewed in the light most favorable to defendant’s hypothesis of self-defense. State v. Potter, 657 S.W.2d 694, 698[3] (Mo.App.1983).

In State v. Gadwood, supra, at p. 57, the court said: “As long as a person keeps his gun in his hand prepared to shoot, the other person is not expected or required to accept any act or statement as indicative of an intent to discontinue the assault.” That language was quoted with approval in State v. Spencer, supra, 307 S.W.2d at 444.

Even under the testimony of Jo Ehlers defendant had at least one gun in his hand. He had “the drop” on McQueen. This evidence destroys, rather than supports, a finding that defendant had “withdrawn from the encounter and effectively communicated such withdrawal” to McQueen. Indeed, which need not be decided, it may well be that Jo Ehlers’ testimony was insufficient to show that McQueen “persisted in continuing the incident by the use or threatened use of unlawful force.” All she said was that McQueen “was going down to the floor toward the gun.” McQueen’s intentions, if any, concerning the use of that gun, are left to speculation. Defendant’s second point has no merit.

Defendant’s third point is that the court erred in receiving into evidence testimony of state’s witness Howard Rifenberg, a Springfield police officer, concerning an incident which occurred at approximately 2:20 a.m. on February 20, 1983, involving the defendant. There was no objection to the testimony at the time it was presented and defendant’s motion for new trial, prepared by counsel, did not mention the alleged error. Accordingly it has not been preserved for appellate review, Rule 29.-11(d). This court, in its discretion, examines the point to determine if the admission of the testimony constituted plain error affecting substantial rights and resulting in manifest injustice or miscarriage of justice. Rule 29.12.

Rifenberg testified that he was dispatched to the Battlefield Inn “in regard to a disturbance and shots being fired.” When Rifenberg arrived at the scene defendant was there. Rifenberg quoted the defendant as saying that he had come out there to have a discussion with his son Randy but Randy had pushed him and they had a disturbance. Rifenberg said, “There was no more to it than that.”

Rifenberg then testified that he interviewed Randy, who was nearby. He quoted Randy as saying that he had had a fight with defendant “down on the parking lot” and that defendant “had fired a gun up in the air two or three times and nothing more than that.” A few minutes later Randy told Rifenberg that defendant had fired a .38 revolver “into the concrete” and that a piece of concrete or fragment of a bullet had struck Randy in the bottom of the foot.

Carol Hassler, who was present at the Rifenberg-Randy conversation, told Rifen-berg that she “went down and talked to defendant” and talked him into giving her the .38 revolver. The woman then produced the revolver and gave it to Rifenberg.

The revolver was then admitted into evidence as state’s Exhibit 1. It had previously been identified by McQueen as his gun and as one of the guns which defendant held in his hands at the time of the assault on McQueen. The gun was not offered into evidence at the time McQueen identified it.

The state argues that the testimony concerning the February 20 incident “had a legitimate tendency to establish defendant’s guilt in that it tended to establish the defendant’s identity as the assailant.” Identity was not an issue with respect to the assault on McQueen. Indeed in his opening statement made before the introduction of any evidence, defendant told the jury that he had fired a warning shot to “[McQueen’s] right and I also fired to his hand as he was reaching for his .45 revolver,” but did so in self-defense.

On timely objection the evidence concerning the February 20 incident should have been excluded. This court holds, however, based on a review of the whole record, that the admission of the evidence did not result in manifest injustice or a miscarriage of justice. See State v. Escoe, 548 S.W.2d 568, 571 (Mo. banc 1977).

Defendant’s fourth point is that the trial court erred in receiving into evidence testimony of state’s witness Howard Rifenberg, a Springfield police officer, concerning an incident which occurred on May 22, 1983, which was the day before the trial commenced. This point was not mentioned in defendant’s motion for new trial and it has not been preserved for appellate review. This court examines the point for possible plain error.

Before Rifenberg testified, the state had presented the testimony of McQueen. During his cross-examination of McQueen, defendant offered defendant’s Exhibit C, a knife, and it was received into evidence without objection. McQueen identified the exhibit as his knife. He had previously testified that the knife was in his possession, although not shown to defendant, at the time of the October 20, 1982 assault.

Rifenberg testified that at 11:20 p.m. on May 22, 1983, he was dispatched to defendant’s home “concerning a stabbing.” Defendant interposed an objection on the ground of irrelevancy. The prosecutor informed the court that the only purpose of the testimony was “in connection with following the location and possession of the knife.” The court overruled defendant’s objection and denied defendant’s motion for mistrial.

Rifenberg then testified that he found defendant alone at his home. Defendant told Rifenberg that someone broke through the screen door, grabbed a knife off the table, stabbed the defendant with it, and ran back out of the door. Rifenberg also testified that defendant “said the knife was the knife that he was going to present in court on this trial.” Rifenberg said there was a small wound on the right calf of defendant’s leg. The witness looked for the knife outdoors but did not find it. He also said that the defendant said that the thief ran across the back yard, that the back yard had very high grass, and that he, Rifenberg, searched for footprints in the. yard and found none.

The state’s brief argues that the challenged testimony was admissible “as it bore upon defendant’s credibility.” In essence the state argues that defendant lied to Rifenberg concerning the knife incident because defendant introduced the knife into evidence the next day. The flaw in the state’s argument is that defendant did not testify and his credibility as a witness was never in issue.

The state makes no argument that evidence of the May 22, 1983, incident was admissible on the theory that it constituted an attempt to destroy evidence and showed a consciousness of guilt within such cases as State v. Lockett, 639 S.W.2d 132 (Mo.App.1982), and State v. Dennis, 622 S.W.2d 404 (Mo.App.1981). Defendant introduced the knife into evidence before the state presented the evidence of the May 22 incident.

On timely objection the evidence concerning the May 22 incident should have been excluded. This court holds, however, based on a review of the whole record, that the admission of the evidence did not result in manifest injustice or a miscarriage of justice. See State v. Escoe, supra.

Defendant’s fifth point is that the trial court erred in failing to instruct the jury on the issue of “extreme emotional disturbance,” as the term is used in § 565.-060.1(3)(a), for the reason that the evidence sufficiently injected that issue into the case.

Sec. 565.060.1, on the date of the instant offense, read, in pertinent part:

“A person commits the crime of assault in the second degree if:
(3) He attempts to kill or to cause serious physical injury or causes serious physical injury under circumstances that would constitute assault in the first degree under section 565.050, but
(a) Acts under the influence of extreme emotional disturbance for which there is a reasonable explanation or excuse. The reasonableness of the explanation or excuse shall be determined from the viewpoint of an ordinary person in the actor’s situation under the circumstances as the actor believes them to be; ... ”

The statute also provided that the defendant shall have “the burden of injecting the issue of extreme emotional disturbance.”

Sec. 556.051 reads:

“When the phrase ‘The defendant shall have the burden of injecting the issue’ is used in the code, it means
(1) The issue referred to is not submitted to the trier of fact unless supported by evidence; and
(2) If the issue is submitted to the trier of fact any reasonable doubt on the issue requires a finding for the defendant on that issue.”

McQueen testified that after he arrived at defendant’s home on the morning of the assault, defendant screamed obscenities and said over and over, “I’m going to kill you.” McQueen also testified that he tried to ask defendant what the problem was and “that made him madder and madder.” McQueen also testified, “after the tapes played a while defendant went into another rage.”

If in fact the foregoing testimony was sufficient to submit the issue of extreme emotional disturbance, as the term is employed in § 565.060.1, the trial court was required to submit the issue in the state’s verdict-directing instruction, give a separate instruction directing a verdict of not guilty of first degree assault if that issue was found for defendant, and give MAI-CR 19.03 and MAI-CR 19.04.1. The foregoing requirements are found in paragraph 5 of the Notes on Use to MAI-CR 19.02 which applies to assaults committed prior to August 13, 1984. See MAI-CR 2d 19.-02.1-84, Notes on Use, par. 1(A). For the reasons which follow, this court holds that the evidence was insufficient to inject the issue of extreme emotional disturbance.

The Criminal Code, enacted in 1977, with an effective date of January 1, 1978, was a product, to a large extent, of “The Committee to Draft a Modern Criminal Code.” In October 1973 that committee presented its official draft of the proposed legislation. The committee’s proposed draft of the statute dealing with assault in the second degree contained the language of § 565.060.-l(3)(a) previously quoted. In its comment under that proposal the committee said that the “extreme emotional disturbance” provision “is the same as provided in the homicide offenses.” The Proposed Criminal Code for the State of Missouri, October 1973, p. 134. The “extreme emotional disturbance” language was also set forth in the committee’s draft of the manslaughter statute. Referring to that language, as applied to homicide situations, the committee said at p. 129 of its report:

“The Code expressly provides for allowing the jury to consider the effect of extreme emotional upset for which there is a reasonable explanation or excuse on the degree of criminal homicide. It allows for reduction in the grade of the crime (but not exculpation) if the jury finds that the situation was such that a reasonable man in the defendant’s situation would have been extremely upset and consequently that the killing which the defendant committed was attributable in part to the situation and not entirely to the defendant’s evil disposition. In general the man who kills while reasonably upset is not as blameworthy as the man who kills calmly or who is unreasonably upset and kills. This is the same sort of value judgment the jury could make under the common law category of ‘heat of passion.’ ”

The only evidence concerning the reason for defendant’s assault upon McQueen was to the effect that defendant’s wife told defendant that McQueen had previously told her that defendant was running around. Even if McQueen himself had made that statement directly to defendant, Missouri cases, antedating the criminal code, held that “language or epithets, however offensive, will not justify or excuse an assault.” State v. Brown, 165 S.W.2d 420, 422[4] (Mo.1942). See also State v. Little, 228 S.W. 793, 798 (Mo.1921).

Cases discussing the “extreme emotional disturbance” language of § 565.060.1 include State v. Ellis, 639 S.W.2d 420 (Mo.App.1982) and State v. Bienkowski, 624 S.W.2d 107 (Mo.App.1981). In each of those cases the evidence was held insufficient to inject the issue. In Ellis the defendant and his accomplice Tunstall assaulted one Binion who had previously attempted to persuade defendant and Tun-stall to engage in homosexual acts. Ellis argued that his fear of homosexual rape entitled him to submission of the issue of extreme emotional disturbance. Rejecting that argument, the court said that the attack on Binion was calculated, preparations had been made the day before by secreting the weapons in the area where Binion would be found, and there was no threat of an assault by Binion upon Ellis or Tunstall. The court said, at p. 424: “All the evidence shows that the assault was coolly and deliberately planned and executed, and that neither Ellis nor Tunstall was in anything approaching a state of ‘extreme emotional disturbance.’ ”

In Bienkowski defendant was convicted of first degree assault on one Ronald. Ronald had teased some teenagers singing Christmas carols. Previously defendant, who had been drinking, left home with a six-pack of beer and a loaded pistol. After defendant instigated an altercation with Ronald’s wife, Ronald pushed and cursed defendant. As Ronald reached for his pocket, defendant feared for his life and shot him. At page 109 the court said:

“The mitigation of extreme emotional disturbance is available to the 'ordinary’ person caught up in events out of his control. The defendant cannot hide behind reactions he himself set in motion. The ‘ordinary’ person is not belligerent. This situation was set up by defendant’s ‘evil disposition,’ and there was no reasonable justification for defendant’s actions.... ” (Emphasis in original.)

It will be observed that, in Bienkowski, supra, the court said that there was no reasonable justification for defendant’s actions, as distinguished from his state of mind.

In the case at bar McQueen had been summoned by defendant to the latter’s home. Defendant brandished the guns immediately upon McQueen’s arrival. That conduct was the product of prior deliberation. That conduct was not justified by mere words on the part of McQueen, however offensive those words might have been. The assault, as was the situation in State v. Ellis, supra, was “coolly and deliberately planned and executed.” It cannot properly be said that defendant was “caught up in events out of his control,” State v. Bienkowski, supra.

Even assuming that defendant’s acts were under the influence of extreme emotional disturbance, the statute requires “a reasonable explanation or excuse” for that disturbance. This court holds that the record would not support a finding of a reasonable explanation or excuse for defendant’s state of mind and the trial court did not err in failing to instruct the jury on the issue of extreme emotional disturbance. Defendant’s fifth point has no merit.

The judgment is affirmed.

TITUS, P.J., concurs.

GREENE, J., dubitante.

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

      . Sec. 565.060.1 was amended in 1983 and the present version does not contain the language pertaining to "extreme emotional disturbance.”


author: TITUS, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Barry George McBRIDE, Defendant-Appellant.
    No. 13569.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 31, 1985.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 15, 1985.
    Application to Transfer Denied April 2, 1985.
    John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    David Robards, Public Defender, Joplin, for defendant-appellant.
   TITUS, Presiding Judge.

Defendant was jury-convicted of the class C felony of stealing at least $150 from one Marie Helm. § 570.030 In accordance with the verdict he was sentenced to imprisonment for a term of five years. Defendant appealed.

A complaint was filed charging defendant with second degree robbery in violation of § 569.030. Defendant was bound over to circuit court for trial where an information was filed June 10, 1983, charging second degree robbery. On August 11, 1983, a first amended information was filed charging (Count I) second degree robbery and (Count II) first degree burglary in violation of § 569.160. Defendant’s motion to remand the case for a preliminary hearing on Count II was sustained. Following that hearing and defendant being bound over to circuit court on Count II, a second amended information was filed September 23, 1983, charging stealing in Count I and first degree burglary in Count II.

The third amended information was filed October 6, 1983. In Count I thereof, defendant was charged with feloniously stealing at least $150 as denounced by § 570.-030. Count II of the third amended information again charged defendant with first degree burglary. Defendant filed a motion to dismiss Count II of the third amended information but withdrew the motion within a week of filing. However, on October 26, 1983, the day of trial, Count II of the third amended information was dismissed without prejudice as again moved by defendant: It should be noted that Count I of the third amended information of which defendant was convicted was never attacked in circuit court as charging a distinct or different offense which required a new or separate preliminary hearing.

In substance, defendant’s first point relied on is that the court nisi lacked jurisdiction to try defendant for felonious stealing as charged in the third amended information because he had not been afforded a preliminary hearing on that charge and because the information was improperly amended to allege an offense different from second degree robbery as originally charged. The first difficulty with defendant’s point is that a preliminary hearing is a procedure which is waived if defendant, as here, proceeds to trial without objection or making a request for such a hearing. When the defendant here did not move for a preliminary hearing on Count I of the third amended information charging him with felonious stealing instead of second degree robbery as formerly charged, the need for a preliminary hearing, if so, was waived. Davis v. State, 651 S.W.2d 497, 498[2,3] (Mo.App.1982); Bryant v. State, 604 S.W.2d 669, 677[10] (Mo.App.1980). Also, because felonious stealing has been determined to be a lesser included offense of robbery, Count I of the third amended information did not charge a distinct and different crime requiring a preliminary hearing thereon. State v. Littlefield, 594 S.W.2d 939, 941-942[3-6] (Mo. banc 1980); State v. Cascone, 648 S.W.2d 190, 192[2] (Mo.App.1983). Defendant’s first point relied on is denied.

To better understand defendant’s second and final point relied on, we recast some of the trial testimony. Marie Helm, 82 years of age, owned the two story Gateway Hotel in Joplin. Guest rooms and two bathrooms occupied the second floor, while Ms. Helm’s living quarters and the hotel’s office were located on the first or ground floor. Defendant had been a paying guest at the hotel from March 22 to 29, 1983, and had thereafter “several times” returned to “look about his mail.” Georgia Marshall, Ms. Helm’s sister, resided in a room on the second floor of the hotel and assisted her sister with hotel chores. In fact, it was Ms. Marshall who had checked defendant in and out of the hotel at the time of his occupancy.

The night of May 3, 1983, Ms. Helm was in Ms. Marshall’s second floor room bathing her back with liniment. Ms. Helm had brought her purse and bank bag containing in excess of $150 with her while ministering unto her sister. Upon completion of the treatment, Ms. Helm went to the second floor ladies’ restroom to wash her hands and found the light out with defendant therein. Although defendant claimed to Ms. Helm he had just taken a bath, he was fully clothed. Because defendant “wasn’t supposed to be in the building, let alone in the bathroom,” Ms. Helm repeatedly insisted that he leave. Defendant resisted and Ms. Helm only succeeded in getting him into the hallway and near the sister’s room where Ms. Helm directed her sister “to go down and call the law to get him out of the building.” Ms. Marshall went down the stairs and summoned the police via telephone. After the sister left her room, defendant entered it, grabbed the bank bag and its contents from Ms. Helm’s purse and fled the premises before police arrival. When Ms. Helm was asked at trial if she had ever seen “the defendant in your hotel again after that night,” she answered “No” and explained that the next time after May 3, 1983, she had seen the defendant in person was in the courtroom of the courthouse when she had testified at the two preliminary hearings.

Ken Copeland, a Joplin police officer, was called as a state’s witness and defendant, out of the jury’s hearing, objected thereto because of supposed discrepancies between the just recast testimony of Mmes. Helm and Marshall and the officer’s prior recountings concerning an oral confession made by defendant following his arrest on May 17, 1983. According to defense counsel the officer’s previous accountings of the confession did not refer to the May 3,1983, stealing charge then on trial as the alleged confession concerned money defendant had reportedly taken out of a purse “sitting on the desk in the office, not [in the upstairs] living quarters.” Noting it was not unusual that a defendant’s statements did not completely coincide with the state’s other evidence and were frequently tempered to soften the charge filed, the court overruled defendant’s objections. During Copeland’s testimony his only references were to the May 3 stealing and defendant’s purported confession of May 17 wherein defendant had orally told him that while inside the office area of the hotel he had taken $60 from a purse lying on a desk. At trial, defendant denied having made such a statement.

It was not until defendant’s after trial motions and arguments thereon were presented to the trial court that the court nisi was made aware that police had investigated a May 14 complaint that defendant had entered the Gateway Hotel telling Ms. Helm a person was sleeping on the hotel’s front steps and that when Ms. Helm went to investigate, defendant was suspected of going into Ms. Helm’s downstairs quarters and taking $50 to $100 from her purse. When the after trial motions were viewed and argued, the court assured counsel that neither he nor the jury were ever made aware of an alleged and independent incident occurring on May 14 and defense counsel ceded “I admit I could have done a better job in bringing it out at trial ... I didn’t make it clear to the court.”

At the trial defendant testified and denied ever having made the same or similar statements attributed to him by Officer Copeland. As the foregoing attests, neither the court nor the jury were ever made aware of the alleged May 14 theft and defendant’s trial objections to Copeland’s testimony were never predicated upon the happening of a second theft. “Assignments of error regarding admissibility of evidence are not for consideration on appeal unless they were timely presented to the trial court when the evidence was offered. State v. Rideeoutte, 572 S.W.2d 877, 879[4] (Mo.App.1978); State v. Broadnax, 572 S.W.2d 224, 226-227[1] (Mo.App.1978); State v. Simmons, 500 S.W.2d 325, 328[2,3] (Mo.App.1973). Or, differently stated, alleged errors not [timely and pointedly] objected to at trial are waived [State v. Morgan, 444 S.W.2d 490, 494[6] (Mo. 1969)] and cannot be subsequently resurrected successfully in a motion for a new trial or via a point raised on appeal. State v. Hulsey, 557 S.W.2d 715, 718[5] (Mo.App.1977).” State v. McMillin, 581 S.W.2d 612, 616[5] (Mo.App.1979). Defendant’s final point relied on is denied and the judgment is affirmed.

FLANIGAN and GREENE, JJ., concur.

      . Statutory references are to V.A.M.S.


author: KAROHL, Judge.

text:
    Carl and Anita SCHWARTZ, Plaintiffs-Appellants, v. Mrs. Ray G. MILLS and Mrs. Clark Hungerford, Defendants-Respondents.
    No. 48536.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 13, 1985.

      Gray Carroll Stribling, St. Louis, for plaintiffs-appellants.
    Daniel E. Wilke, Clayton, for Mrs. Ray G. Mills.
    Gary Edward Snodgrass, Richmond Heights, for Mrs. Clark Hungerford.
   KAROHL, Judge.

Plaintiffs appeal summary judgment for defendants granted on the ground that the relief plaintiffs seek is barred by the applicable statute of limitations.

The plaintiffs, property owners, brought suit against defendant Mills, abutting property owner west of plaintiffs, and defendant Hungerford, adjacent property owner, west of Mills, for actual and punitive damages and injunctive relief. In Count I plaintiffs allege that defendants “negligently and carelessly maintained their residential property in that, inter alia, they have caused or permitted a manhole and ‘homemade’ drainage pipe (containing several holes thereon) to be situated on and beneath their residential property and through which large quantities of water have been and are currently being discharged onto Plaintiffs’ residential property.” Count II alleges that defendants have used their residential property in an unreasonable manner causing an accumulation and collection of water to be discharged upon plaintiffs’ property. Count III alleges that the acts of defendants as alleged in Counts I and II were willful, malicious, knowing and intentional. Count IV alleges that the acts referred to in Count II are continuing, recurring, willful, knowing, malicious and intentional and that defendants have refused to take measures to cure. Plaintiffs pray for damages in Counts I and II, punitive damages in Count III and an injunction, in Count IV. The facts pleaded by the plaintiffs suggest several theories of liability for the damages plaintiffs claim to have suffered: (1) an action based on negligence; (2) an action based upon temporary private nuisance; and, (3) an action based upon continuing trespass.

Defendants’ motions for summary judgment were based upon the legal defense that plaintiffs’ claims are barred by the statute of limitations. § 516.120 RSMo 1978. The motions were supported by affidavits, depositions and admissions. The court sustained the motions citing Lato v. Concord Homes, Inc., 659 S.W.2d 593 (Mo.App.1983), and plaintiffs appeal that judgment.

Our review of a summary judgment is equivalent to review of a court-tried proceeding to determine whether defendant is entitled to judgment as a matter of law. Rue v. Helmkampf, 657 S.W.2d 76, 80 (Mo.App.1983). On review of a grant of a motion for summary judgment upon the ground that plaintiffs’ action is barred by the statute of limitations the party against whom judgment was entered must be accorded every favorable intendment of the record. Thompson v. Parker, 608 S.W.2d 415, 416 (Mo. banc 1980).

Plaintiffs contend that summary judgment is inappropriate since its claim is for continuing trespass and temporary nuisance which is not barred by the statute of limitations. Plaintiffs contend that Lato is not applicable because in that case property owners brought suit against a contractor for breach of express warranty of workmanship, negligent design, breach of implied warranty of availability and violation of plaintiffs right to peaceful enjoyment. The court applied § 516.120 RSMo 1978, a five-year statute of limitations after finding “there was but single wrongful act— the delivery of the property with a defective sewer line.” Lato, 659 S.W.2d at 595. Plaintiffs’ position here is that they have alleged a cause of action for continuous and repeated wrongful acts consisting of the negligent and careless maintenance and unreasonable use of defendants’ properties.

It is defendants’ position that the petition alleges a cause of action for wrongful acts which occurred during or prior to 1964 and that defendants had done nothing thereafter to change or alter the condition. They conclude that there is no dispute as to these facts, that § 516.120 RSMo 1978, a five-year statute of limitations is applicable and that plaintiffs’ causes of action are barred.

The true dispute between the parties is one of the nature and character of plaintiffs’ cause of action. The question raised is whether as a matter of law the record supports a finding of a permanent or a temporary private nuisance, a trespass resulting from a permanent structure which by its nature necessarily causes ongoing damage or present acts (or failure to act) causing recurring damage and the effect of the statute of limitations as to each.

We review relevant legal principles. “The rule is well settled in Missouri that the character of a cause of action is determined from the facts stated in the petition and not by the prayer or name given the action by the pleader.” State v. Consolidated School District No. 4 of Iron County, 417 S.W.2d 657, 659 (Mo. banc 1967). Where the allegations are doubtful as between the pleaded cause of action for a permanent nuisance or a temporary nuisance a court would favor the right to successive actions for injury anew and treat the nuisance as temporary. Otherwise, the effect would be to give the defendant, because of his wrongful act, the right to continue the wrong; a right equivalent to an easement. Shelley v. Ozark Pipeline Corporation, 327 Mo. 238, 37 S.W.2d 518, 521 (1931). The question as to what constitutes a nuisance is one of law. Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 485, 489 (1932).

The period of limitation which bars a personal action depends upon when the cause accrues, § 516.100, and the nature of the action, §§ 516.120-516.370. An action for private nuisance rests on tort liability and is based upon an unreasonable interference with the use and enjoyment of land. Nuisance derives from the early rule of tort liability and so describes an effect rather than a cause. White v. Smith, 440 S.W.2d 497, 502-503 (Mo.App.1969). Liability in an action for nuisance may be based upon either negligent or intentional invasion of another’s interest in the private use and enjoyment of land. Rebel v. Big Tarkio Drainage District of Holt City, 602 S.W.2d 787 (Mo.App.1980).

Applying these principles we find that plaintiffs alleged, among alternative causes, an action for a temporary private nuisance, separable as to each accrued injury, for which the plaintiff has redress within the period of limitation for each accrual. Rebel, 602 S.W.2d at 794; Hayes v. St. Louis & S.F.R. Co., 177 Mo.App. 201, 162 S.W. 266, 268 (1914).

The Rebel case is particularly helpful. There the landowners sued a city drainage district for damages and injunctive relief. The petition alleged negligent failure to maintain a ditch levee which permitted water to flood and erode the land of the plaintiff. The trial court concluded that the petition alleged a cause of action for permanent nuisance and was barred by a five-year statute of limitations. “That judgment necessarily rejected the pleading as a cause of action for temporary nuisance, abatable and separately accrued by each new incursion.” Rebel, 602 S.W.2d at 789. The Western District reversed and remanded for trial. It distinguished Powers v. St. Louis I.M. & S. Ry. Co., 158 Mo. 87, 57 S.W. 1090 (1900) and found that the petition pled injury from neglect by defendant and continuous failure to maintain defendant’s levee. Id. at 794. In Powers plaintiffs damages were from the inherent character of a structure in usual operation due to negligent design and construction. The Rebel petition was found to plead a construction made harmful by the neglect of the defendant with “no intimation that the original construction in year 1935 as installed was faulty or necessarily injurious to the plaintiff. The allegations, at best intendment, plead a source of injury created by the defendant, which the defendant has a duty to abate, and which can be abated by an available technology at a reasonable expense.” Id. at 794.

The pleading now under consideration is similar to the pleading in Rebel. The plaintiffs do not plead injury from the construction of a manhole and “homemade” drainage pipe but from defendants’ continuous, negligent and careless maintenance and unreasonable use of their properties so as to cause large quantities of water to be discharged onto plaintiffs’ property and damage plaintiffs’ land. There is no allegation that the inherent character of the manhole and drainage pipe in usual operation would cause injury. The allegation is that they have become harmful through negligence. There was evidence before the trial court that for some years after plaintiffs occupied their property they suffered no damage from the existing structure; that the metropolitan sewer district can correct the drainage problem by installing a new pipe across plaintiffs’ and defendants’ property to a storm sewer inlet. The condition is abatable. Further, there was evidence that one of the defendants had altered underground pipes upon her property within five years of the suit.

We conclude that when granting plaintiffs every favorable intendment of the record the petition and supporting evidence from affidavits, deposition testimony and admissions, the trial court erred in determining as a matter of law the cause of action was for a permanent nuisance and barred by the statute of limitations.

The period of limitations runs immediately upon the creation of a permanent nuisance and bars all claims of damage, present and future, after the lapse of the statutory period, [citation omitted] The rule rests on the reason that the inherent nature of the source of damage assures that the injury will continue indefinitely. The single tortious act of nuisance, therefore, gives rise to one permanent injury for which one recovery lies, [citations omitted] Where the source of injury is a permanent structure, the injury accrues at the completion of the installation or when the effect of injury become manifest, and the action for recovery must be brought within the period of limitations thereafter, [citation omitted] The effect of an adjudication of permanent nuisance is to declare to the tort-feasor an unabatable right to continue the trespass, [citations omitted] ...
The period of limitation as to temporary nuisance, however, runs anew from the accrual of injury from every successive invasion of interest. The recovery is for damage actually sustained to the commencement of suit, but not for prospective injury, [citation omitted] That is because a temporary nuisance may be abated at any time by a reasonable effort or by an order of the court; but if not, then gives rise to a successive action for the continuance of damage, [citations omitted] The right to a successive action for the continuance of a nuisance rests on the principle that the tort-feasor [citations omitted] ‘is under a legal obligation to remove, change, or repair the structure or thing complained of, and thereby - terminate the injury to his neighbor; and, failing so to do, each day’s continuance of the nuisance is a repetition of the original wrong, and a new action will lie therefore.’
The law assumes that a temporary nuisance will abate — if not by voluntary act of the tort-feasor then by judicial agency — and so confines recovery to injury already accrued ...
It is the character of the source of injury rather than the character of the injury which determines between a temporary or permanent nuisance, [citation omitted] That injury results from a permanent construction, however, does not conclusively define the source as a permanent nuisance.

Rebel, 602 S.W.2d at 792, 793.

The grant of summary judgment by the trial court was based entirely on the application of the statute of limitations. However, defendants have presented alternative arguments not made in the trial court which they contend support their right to a judgment as a matter of law. They argue that even if the statute of limitations is not a bar to plaintiffs’ cause of action, the undisputed facts support a finding that they have acquired a prescriptive easement. They also argue that the negligent and defective workmanship of contractors, hired by the plaintiffs to construct their home, constitutes an intervening efficient cause of the damages plaintiffs may have had from water discharged upon their property. We need not decide whether it is appropriate for an appellate court to affirm a summary judgment upon grounds neither pleaded nor argued before the trial court for the reason that the record fails to support defendants’ position on either of these alternative grounds.

The authorities relied upon by defendants, Snowden v. Northwest Mo. State University, 624 S.W.2d 161, 165 (Mo.App.1981) and Flanary v. Rowlett, 612 S.W.2d 47, 49 (Mo.App.1981), are dispositive. Both courts recognized the general proposition that a summary judgment must be affirmed if sustainable on any theory. However, in both cases alternative grounds for summary judgment were presented to the trial court and the judgment did not recite the ground relied upon. On this issue these cases stand only for the proposition that a summary judgment will not be reversed merely for the failure to recite the grounds upon which it is based.

Summary judgment on the ground of prescriptive easement and § 516.010 RSMo 1978 is inappropriate because the record does not support a continuous ten year adverse claim by defendants upon plaintiffs’ property. Chase v. Fania, 675 S.W.2d 87, 88 (Mo.App.1984). Nor is the contention of intervening cause supported by fully developed and agreed or uncontested facts from which we could conclude as a matter of law that defendants were entitled to a summary judgment. Summary judgment is a drastic remedy. It must be shown on the record that there is no genuine issue of fact and the record must be viewed in a light most favorable to the parties against whom summary judgment is entered. Teter v. Morris, 650 S.W.2d 277, 285 (Mo.App.1982).

We reverse and remand.

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


author: KENNEDY, Judge.

text:
    Wayne H. BROWER, et al., Plaintiffs-Appellants, v. DAVIDSON, DECKERT, SCHUTTER & GLASSMAN, P.C., et al., Defendants-Respondents.
    No. WD 34723.
    Missouri Court of Appeals, Western District.
    April 3, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied May 29, 1984.
    Application for Transfer Sustained July 17, 1984.
    Retransferred Jan. 29, 1985.
    Court of Appeals Opinion Readopted Feb. 6, 1985.
    Steven W. White, Independence, for plaintiffs-appellants.
    Floyd R. Finch, Jr., B.W. Jacob, and Gregory L. Vranicar, Kansas City, for defendants-respondents.
    Before SHANGLER, P.J., and KENNEDY and LOWENSTEIN, JJ.
   KENNEDY, Judge.

This is a malpractice case. The defendants are attorneys and an accountant. The negligence alleged against them is that they failed to complete within 12 months the distribution to the stockholders of the assets of a liquidating corporation, under a Section 337 liquidation, I.R.C. § 337 (1958). The injury alleged is that the plaintiffs, who were the sole shareholders of the liquidated corporations, were subjected to a claim by the Internal Revenue Service for additional income taxes, a claim ultimately settled by plaintiffs’ payment of a substantial sum.

The trial court granted summary judgment to the defendants on the ground that the plaintiffs’ claim, filed July 18, 1980, was barred by the five-year statute of limitations, § 516.120, RSMo 1978. Plaintiffs have appealed. We affirm the judgment.

The facts of the case are as follows:

Plaintiffs were the sole stockholders of two closely held corporations, known as Coach Lamp Corner Apartments, Inc., and Coach Lamp Investment, Inc. They wanted to dissolve the corporations and transfer the assets to themselves. The corporations seem to have made substantial capital gains upon the sale of real estate. In order to avoid the taxation of the capital gain to the corporation, the defendant attorneys and Mr. Milligan, the defendant accountant, advised them to take advantage of the provisions of Section 337 of the Internal Revenue Code. In pursuance of that device, the corporations adopted a plan of liquidation which provided for a complete distribution of all the assets of the corporations within a period of 12 months from the adoption of the plan of liquidation. The plan was adopted January 26, 1972, so it was necessary to complete the distribution of the assets by January 26, 1973.

According to the allegations of the petition, the defendants negligently failed to accomplish the distribution of the assets within the 12-month period, as a result of which the Internal Revenue Service disallowed the Section 337 treatment of the capital gains by the corporations and claimed additional taxes thereon of $52,-355.43. The record shows that the examination which culminated in the Internal Revenue’s assertion of its claim was before May 12, 1975.

On March 15, 1973, the corporations had filed their 1972 income tax returns, and their final (1973) return, in which they treated the distribution of the corporate assets as having occurred prior to January 26, 1973, and treated the corporations’ capital gains as non-recognizable under Section 337. The fact was that the distribution had not been completed until five days after the January 26 deadline.

In 1974 or 1975 both corporations had received a notice from the Internal Revenue Service of an intent to examine the corporate income tax returns. Thereafter, the income tax returns of the corporations were examined by the Service particularly to determine if they had complied with the requirements of Section 337.

That audit, or examination, as noted above, was completed sometime prior to May 12, 1975. That is the date of a memorandum to defendant accountant Milligan from Internal Revenue Agent Jean Ahl-strom McCormick: The memorandum said: “Enclosed are forms relating to Coach Lamp. The deficiencies on the corporations ... will go unagreed as we discussed before but am sending copies of my computations of additional tax for your information anyway.” Attached thereto were computations indicating a deficiency of $52,-355.43. According to an uncontradicted affidavit of Mr. Milligan, he had discussed the agent’s findings with Internal Revenue Agent McCormick and also with the plaintiffs before the receipt by him of the report itself, and the plaintiffs had told Milligan that they would not agree to the deficiencies.

In due time plaintiffs took an unsuccessful appeal to the regional commissioner’s office. Just when the defendant attorneys were brought back into the case does not appear, but they seem to have represented the plaintiffs in this appeal. After receiving statutory notices of deficiency on November 30, 1977, plaintiffs, represented now by other counsel than defendants, filed a petition in the United States Tax Court disputing the proposed assessment.

Ultimately on December 9, 1979, the plaintiffs, the corporations and the Internal Revenue Service entered into a stipulation which was reduced to judgment on December 30, 1979. Plaintiffs’ additional tax liability, including interest, was agreed to be $60,000, which plaintiffs paid.

Plaintiffs’ lawsuit against defendants was filed July 18, 1980.

The parties agree that § 516.120, RSMo 1978, the five-year statute of limitations, is applicable.

The question presented is when plaintiffs’ damage was “capable of ascertainment” within the meaning of § 516.100, RSMo 1978, marking the accrual of their cause of action against defendants.

We hold that, at the latest, the statute of limitations commenced to run on or about May 12, 1975. That is the date of the Internal Revenue agent’s report, calculating a tax deficiency of $52,355.43, based upon the failure to distribute the corporate assets within the one-year period prescribed by Section 337. The findings of the report had been discussed by Milligan with the Internal Revenue agent and with the plaintiffs before the receipt by him of the report itself, and plaintiffs had told Milli-gan that they would not agree to the deficiencies.

From that point on, plaintiffs can scarcely claim that they did not know that they were exposed to a substantial tax liability by reason of the failure to complete the distribution of the corporate assets before January 26, 1973. They knew also, if it was the case, that accountant Milligan’s omission to perform his duty, or the attorneys’ omission to perform their duty, was to blame for the failure to accomplish the distribution within the allowable time. The “discoverability” of the fact of damage (See Follmer’s Market, Inc. v. Comprehensive Accounting Service Company, 608 S.W.2d 457, 460 (Mo.App.1980); Thorne v. Johnson, 483 S.W.2d 658 (Mo.App.1972)), could no longer be an open question. It was not only “discoverable”; it was discovered. Their lawsuit filed July 18, 1980, was barred by § 516.120, RSMo 1978.

Defendant’s attorneys argue here that the statute of limitations was triggered March 15, 1973, upon the filing of the tax returns. In view of our determination that the statute was triggered on or about May 12, 1975, at the latest, it is not necessary for us to consider whether the damage was “capable of ascertainment” at some earlier date.

Plaintiffs emphasize that before the stipulation of December 9, 1979, which settled the amount of taxes they owed, the amount of the damages was unknown and was subject to speculation and conjecture. They point to Section 516.100 which provides that for purposes of Section 516.120, a cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, “but when the damage resulting therefrom is sustained and is capable of ascertainment”. They say that the damage was not “capable of ascertainment” until the December 9, 1979 stipulation. One could not be sure, they point out, that plaintiffs even owed any additional taxes, much less the amount they owed. Therefore, they argue, it was only then that their malpractice cause of action against Mr. Milligan and the defendant attorneys accrued. Judge, now Chief Justice Rendlen, answered a similar argument in Dixon v. Shafton, 649 S.W.2d 435, 439 (Mo. banc 1983) when he wrote:

In many actions the extent of damage may be dependent on uncertain future events. A personal injury plaintiff might be awaiting an operation which might substantially affect the extent of liability. If a lawyer overlooks the statute of limitations in filing his suit, there may be no certainty that the suit, if filed, would be successful or of the amount which might be recovered. Such uncertainties have never been held to preclude the filing of suit and, under the authorities cited above, have not delayed the accrual of the plaintiff's claim for purposes of the statute of limitations. The most that is required is that some damages have been sustained, so that the claimants know that they have a claim for some amount. These requirements were met in the case at bar.

Id. at 439.

The fact of damage was “capable of ascertainment” at least by May 12, 1975, even though the amount of damage was yet unascertainable. When the fact of damage became capable of ascertainment, the statute of limitation was put in motion. Dixon v. Shafton, 649 S.W.2d at 438.

We have considered sua sponte the question whether accountant Milligan’s and defendant attorneys’ representation of the plaintiffs in the dispute with the Internal Revenue Service until after November 30, 1977, would postpone the commencement of the running of the statute of limitations until their employment was terminated. Plaintiffs do not allege, and we find nothing in this record to support the notion, that any of the defendants were guilty of any concealment which might have postponed the commencement of the running of the statute of limitations. On the contrary, as we have already pointed out, plaintiffs knew on or about May 12, 1975 everything they needed to know to assert any claim they might have against the defendants. See Swope v. Printz, 468 S.W.2d 34, 36 (Mo.1971); Arkansas Natural Gas Company v. Sartor, 78 F.2d 924, 928 (5th Cir. 1935), cert. denied, 296 U.S. 656, 56 S.Ct. 381, 80 L.Ed. 467 (1936); 54 C.J.S. Limitations of Actions § 206 (1955).

As a second point of error, plaintiffs say the court erred in denying them permission to file a second amended petition, Rule 55.33(a). The second amended petition would only have added the conclusory statement that plaintiff’s cause of action accrued on December 30,' 1979. Such a conclusory allegation in the petition would avail nothing in the face of the record which the trial court had before it, which showed the facts as we have stated them above.

The judgment is affirmed.

All concur.


author: CLARK, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Chester L. ARNETTE, Appellant.
    No. WD 35466.
    Missouri Court of Appeals, Western District.
    Nov. 27, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied April 2, 1985.

      Roy W. Brown, Bruce B. Brown, Kansas City, for appellant.
    Michael A. Insco, Buchanan County Pros. Atty., Weldon C. Judah, Asst. Pros. Atty., St. Joseph, for respondent.
    Before CLARK, P.J., and NUGENT and LOWENSTEIN, JJ.
   CLARK, Presiding Judge.

Appellant was charged in two counts with the offenses of operating a motor vehicle while his license was under suspension, a violation of § 303.370.3, RSMo. and with operating a motor vehicle while in an intoxicated condition, a violation of § 577.-010. A jury returned guilty verdicts on both counts and appellant was sentenced to a fine and a prison term.

The events leading to appellant’s arrest occurred June 26, 1983. A St. Joseph police officer observed appellant driving an automobile in an erratic fashion and in excess of the posted speed limit of 40 miles per hour at the location. The officer stopped appellant and, upon detecting the odor of alcohol about appellant’s person, the officer took appellant into custody. A breathalyzer test administered thereafter recorded a blood alcohol content of .17 per cent. As to the sufficiency of this evidence, the test results and the officer’s observations, to support the conviction for driving while intoxicated, appellant makes no complaint.

The charge of operating a motor vehicle while under license suspension involved proof of appellant’s driving record as certified by the Missouri Department of Revenue. This aspect of the ease leads to a discussion of appellant’s first point on appeal. He contends a verdict should have been directed in his favor as to the charge of driving while his license was suspended because the state failed to adduce proof sufficient to support the elements of the offense as charged. We agree.

Prosecution of appellant as to the count of the license violation was based on a traffic ticket issued to appellant by the arresting officer. The ticket showed the charge to be a violation of § 303.370 in that appellant did “operate motor vehicle while Driver’s License is suspended.” An attempt by the state to amend the charge as trial commenced was denied by the court and the state elected to proceed on the count as described in the ticket.

Chapter 303 is the Motor Vehicle Safety Responsibility Law. Section 303.030 provides for the suspension of operator’s license and motor vehicle owner registrations where, after a required report of a motor vehicle accident is received, acceptable evidence of financial responsibility is not filed. Under § 303.370, it is an offense for any person, whose operator’s license has been suspended or revoked for failure to comply with the safety responsibility law, to drive any motor vehicle upon a highway. To establish the charge here that appellant had violated § 303.370, as the traffic ticket charged, it was necessary for the state to prove that appellant’s driving license had been suspended because of his failure to provide proof of financial responsibility.

The evidence in the case, relevant to the charge upon which appellant was tried, consisted of a copy of a notice from the Missouri Department of Revenue to appellant advising of “Resuspension For Failure To Maintain Proof Of Financial Responsibility Filing.” In particular, the notice stated that appellant’s privilege to use any motor vehicle owned by him and registrations evidencing such privilege were suspended as of January 13, 1983. Although the form notice included a section applicable to driving license suspensions, that portion was not shown applicable in appellant’s case. There was no proof appellant’s driver’s license had ever been suspended for failure to prove financial responsibility.

The state’s case as to Count I fails because it was an essential element of the charge to prove that on June 26, 1983, appellant’s operator’s license was under suspension for failure to prove financial responsibility as required by Chapter 303. The most that the driving record showed was that appellant was prohibited at the time from using any motor vehicle owned by him. That proof made no case, first because appellant was not charged with a vehicle license registration violation and, second because there was no proof the car he was driving when arrested was owned by him.

It cannot escape notice from the entirety of appellant’s driving record that on November 29, 1982 appellant’s operator’s license was revoked pursuant to § 302.304 for one year for various violations including driving while intoxicated. That record would appear to have been sufficient to make a prima facie case against appellant for violation of § 302.321. An offense against Chapter 302, however, was not charged and therefore proof that appellant’s license had in fact been revoked in accordance with § 302.304.3 was inadmissible to support the charge that appellant had violated a license suspension imposed under Chapter 303. The state tacitly recognized this limitation and made no attempt to inform the jury as to the license revocation actually in effect when appellant was arrested. The jury’s information was limited to the evidence of automobile registration suspension imposed for lapse of liability insurance coverage.

In short, the failure of the state to prosecute a charge consistent with the evidence as to driver’s license revocation and a failure to produce proof essential to the charge which was prosecuted necessitates reversal of appellant’s conviction as to Count I.

In his second point, appellant complains of the failure of the court to impose the sanction of witness exclusion for failure of the state to provide pre-trial discovery in accordance with Rules 25.03 and 25.07. The state called two witnesses at trial, the arresting officer, Daffron, and the officer who administered the breathalyzer test, Lewis. Appellant asserted at trial and he again argues here that neither witness should have been permitted to testify. He says the state did not provide good faith discovery in response to appellant’s request because (1) the state’s response consisted only of the condemned “open file” practice, State v. Moore, 645 S.W.2d 117 (Mo.App. 1982), (2) the state did not list the names of witnesses it intended to call at trial and (3) such response as the state did make was untimely.

We agree that the state’s performance under the duty to provide discovery was less than forthright in this case, but appellant was also tardy in seeking his remedies. He did not present his request for discovery within the time specified in Rule 25.02 and he failed to seek the court’s aid under Rule 25.16 to compel disclosure or to obtain a continuance. Instead, he waited until the commencement of trial and then attempted to suppress the state’s evidence. The respective shortcomings of the parties with respect to discovery, however, need not be weighed to reach a decision on the point.

Appellant’s complaint focuses on testimony of the two witnesses, Daffron and Lewis, and on the breathalyzer test report. He contends the state did not inform him in advance of trial that these two, among the several names of potential witnesses in the state’s file, would be the persons actually called to testify and he says the breathalyzer report was not in the state’s file until shortly before trial. These assertions are undoubtedly correct, but appellant has not supported his point by any showing of prejudice from the non-disclosure.

In order to prevail on a claim that the trial court abused its discretion in failing to exclude evidence not properly revealed pursuant to a request for disclosure, it must appear that the result was fundamentally unfair to the defendant, that is, that prior discovery would have affected the result of the trial. State v. Mansfield, 668 S.W.2d 271 (Mo.App.1984). Appellant appears to assume that non-disclosure alone warrants the sanction of evidence exclusion and, consequently, he urges here no showing of demonstrable prejudice. The point must fail on this account.

Appellant was obviously aware of the identities of the arresting officer and the officer who administered the breath test and the fact of a test report. The use of these witnesses and evidence were to be anticipated as the only viable options for the state to prove its case. Appellant claims no surprise that the witnesses were produced and points to no different approach he would have taken to trial preparation had he received the discovery at any earlier time. There is simply no ground to claim that the failure of discovery affected the result of the trial. That being so, there was no fundamental unfairness and no abuse of the trial court’s discretion in its failure to exclude the evidence.

In his next point, appellant charges that the trial court abused its discretion in failing to strike three members of the jury panel for cause. The challenge was based on the voir dire answers of two who were acquainted with the prosecuting attorney of Buchanan County and one who had been a friend of Officer Lewis in high school some fifteen years earlier. Appellant contends the failure to strike these persons from the panel denied him a venire unbiased as to his cause.

This case involves facts almost identical to those in State v. Crews, 607 S.W.2d 759 (Mo.App.1980), vacated 452 U.S. 957, 101 S.Ct. 3103, 69 L.Ed.2d 968, on remand 619 S.W.2d 78 (Mo. banc 1981). Here as there the veniremen said they were not biased and could give defendant a fair trial. The answers were unequivocal and no bias was shown. Appellant was not entitled to have the panel members stricken on the mere fact of their acquaintance with a witness in the one instance and with the county prosecuting attorney in the other.

Finally, appellant complains that the charging documents consisting of the two traffic tickets were fatally defective and did not function to give the circuit court jurisdiction over him because the court named on the tickets was the Municipal Court of St. Joseph, Missouri. He relies on Rule 21.04 and candidly acknowledges finding no case authority in point.

The record on appeal indicates that on June 27, 1983, appellant was arraigned in the Buchanan County Circuit Court on the two misdemeanor charges, he entered pleas of not guilty and was released on a surety bond. The traffic tickets were filed with the circuit court concurrently with appellant’s appearance.

This contention regarding jurisdiction was raised for the first time in appellant’s motion for a new trial. He obviously does not contend the court designation shown on the tickets lead him to the wrong court nor does he assert that any proceedings ever did occur in the municipal court designated on the tickets. The defect was in form only and should and could have been rectified if noted when the tickets were filed as de facto complaints. A defect of this nature is waived when the accused proceeds to trial without objection, as did the appellant. State v. Frankum, 425 S.W.2d 183, 187 (Mo.1968). Moreover, there is no claim that appellant suffered any prejudice to substantial rights and he is therefore not entitled to any relief. Rule 23.11.

The judgment and sentence under Count I, operating a motor vehicle while a driver’s license is under suspension is reversed. The judgment and sentence under Count II, operating a motor vehicle while in an intoxicated condition is affirmed.

All concur.

      . All references are to RSMo.1978.