author: MANFORD, Judge.

text:
    KENNY’S TILE & FLOOR COVERING, INC., Appellant, v. Thomas C. CURRY, et al., Defendant, North American Savings, Assoc. & Warren Slagle, Respondents, and Williams Enterprises, Appellant.
    Nos. WD 35052-WD 35280.
    Missouri Court of Appeals, Western District.
    Oct. 9, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.

      Dennis E. Dibler, Kansas City, for appellant Kenny’s Tile & Floor Covering.
    Marion W. O’Neill, Kansas City, for appellant Williams Enterprises.
    Warren E. Slagle, Kansas City, for respondents North American Sav., Assoc, and Warren Slagle.
    Before TURNAGE, C.J., and MANFORD and LOWENSTEIN, JJ.
   MANFORD, Judge.

This is a civil action seeking the declaration of validity of mechanic’s liens upon real property. The trial court denied the liens but entered personal judgment against one of the respondents. The judgment is affirmed in part and reversed in part.

A brief description of the origin of this action, as well as a brief explanation of the procedural development, is necessary to clarify the positions and claims of the parties.

Appellant, Kenny’s Tile and Floor Covering, Inc. (hereinafter Kenny’s) filed its petition seeking the declaration of a mechanic’s lien and an order designating the lien superior to any and all other claims. Kenny’s petition named seven defendants, who were: Thomas C. Curry and Maureen Curry (hereinafter Curry), North American Savings Association (hereinafter North American), Warren Slagle, trustee (hereinafter Slagle), Gary Hale (hereinafter Hale), Williams Enterprises, Inc. (hereinafter Williams), and Allied Mechanical, Inc. (hereinafter Allied). Defendants Curry were named in their capacity as owners of the subject property and as parties to a contract, for goods and services, with Kenny’s. Slagle was named in his capacity as trustee under a deed of trust on said property. North American was named as a defendant in its capacity as owner of said property by virtue of a foreclosure sale upon said property. Williams was named in its capacity as another provider of goods and services.

Williams answered and filed a counterclaim against Kenny’s and a cross-claim against the Currys, Slagle, and North American. By its cross-claim, Williams sought the declaration of a lien upon the property and the designation of superiority of its lien.

Prior to trial, a dismissal was entered regarding Allied and Hale. The case was tried before the court without a jury between Kenny’s, Williams, North American, and Slagle.

It is noted before setting forth the pertinent facts that this cause was tried to the court without a jury. The review of such proceedings is made pursuant to Rule 73.01 as construed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In addition, this court, upon review, is authorized to enter the judgment which the trial court should have entered under the evidence and the law. Rule 73.01.

The record discloses the following pertinent facts.

On June 27,1978, the Currys took title to two adjoining lots located in the Oak Tree Subdivision in Lee’s Summit, Jackson County, Missouri. The lots were numbered Lot 165 and Lot 166. The Currys resided in the City of Raymore, Cass County, Missouri.

The obvious purpose of the purchase of the two lots was to construct single family dwellings on each for the further purpose of sale of developed properties. Such a dwelling was built on Lot 166 and was sold. On August 14, 1980, Thomas Curry applied for a loan with North American for the purpose of constructing a dwelling upon Lot 165. The purpose again being the construction and sale to a prospective purchaser. Both Thomas and Maureen Curry, in processing the construction loan, executed their promissory note and a deed of trust to the favor of North American, in the sum of $70,000.00. This loan transaction also paid off and released an existing note and deed of trust on Lot 165.

Construction upon Lot 165 commenced. Each month, Thomas Curry submitted “draw requests” to North American requesting various sums of money out of the “construction loan” to pay subcontractors who furnished goods and services in the construction of the dwelling. In turn, checks were written by Thomas Curry, and these checks, along with the “draw requests” were submitted to North American. After review of the cheeks and “draw requests”, North American would charge the Currys’ note for these costs. North American would then issue its check to cover the check issued by Thomas Curry. In mid-April, 1981, the Currys were without funds and construction was not complete.

The record further reveals that although the Currys were without funds to complete construction, providers of goods and services were hired. During trial, Kenny’s and Williams offered evidence that North American assured them of payment. North American and Slagle objected to such testimony because neither Kenny’s nor Williams sought any money recovery against North American or Slagle. The objection was properly sustained.

Kenny’s, as the record reveals, supplied and installed carpeting, tile, and wallpaper. Williams, as the record reveals, provided labor and materials for the landscaping. There was no dispute as to the amount for labor and materials or that the cost of same was reasonable. Both Kenny’s and Williams filed mechanic’s liens, and the validity of both is challenged by North American and Slagle.

Kenny’s claim is for $4,394.78. The Williams’ claim totals $1,489.92. Kenny’s filed its lien on September 30, 1981. Subsequently, but prior to commencement of these proceedings, Slagle, as trustee, conducted a foreclosure sale. The sale was on October 19, 1981, North American bid the property, and a trustee’s deed was executed conveying the property to North American. Williams filed its lien on November 4, 1981.

Thomas Curry then filed an action in bankruptcy. He was not joined in the bankruptcy proceedings by his wife, Maureen Curry. Both Currys defaulted in these proceedings, although Thomas Curry did appear as a witness. Trial to the court was conducted on May 31, 1983. The trial court held that Kenny’s and Williams were entitled to a personal judgment as to Thomas Curry, but not Maureen Curry. The trial court further denied the claims of Kenny’s and Williams as to their liens. This appeal followed.

Both Kenny’s and Williams appealed. The cases, by order of this court, were consolidated. Between them, appellants present the following points, as summarized: The trial court erred (1) by failing to find that Thomas Curry was the agent of Maureen Curry, as the evidence established an implied agency and thus the judgment is against the weight of the evidence, (2) by excluding evidence that North American would pay for the goods and services because that evidences an agency between Thomas and Maureen Curry, (3) by failing to enter a personal judgment as against Maureen Curry because the evidence supported a judgment against her and (4) for failing to impress a lien against the subject property because the evidence established the existence of valid liens.

Before addressing the above points, two other matters raised are taken up and addressed. Respondents charge that Kenny’s brief fails to comply with Rule 84.04. This contention by respondents is, after review by this court, found to be without merit. Secondly, appellant Williams charges that the trial court erred in failing to assess attorney’s fees against North American for the latter’s opposition to the production of documents during discovery under Rule 61.01(d). It is Williams’ contention that the award of such attorney’s fees is mandatory under the rule. The rule, however, and the interpretation of it provides that such matters are within the discretion of the trial court and rulings thereon will not be disturbed absent a showing of an abuse of that discretion. Williams’ contention that the trial court erred in not applying sanctions and ordering an award of attorney’s fees is meritless because there is no showing of an abuse of discretion. See Great Western Trading v. Mercantile Trust Co., 661 S.W.2d 40, 43 (Mo.App.1983) and Foster v. Kohm, 661 S.W.2d 628, 631 (Mo.App.1983).

Both Kenny’s and Williams charge that the trial court erred in failing to find that Thomas Curry was the agent for his wife Maureen Curry [point (1) above]. In addition, both appellants charge that the trial court erred in not entering a personal judgment against Maureen Curry [point (3) above]. These points (1) and (3) are taken up, considered, and disposed of conjunctively-

Both Kenny’s and Williams contend that the evidence supports a finding of implied agency between Thomas and Maureen Curry. As noted above, the subject property and the construction of a dwelling thereon was acquired and undertaken for the express purpose of a resale to a prospective purchaser. The property and dwelling were never contemplated as a residence of the Currys.

In determining if there existed an implied agency, our courts review the evidence to determine if the wife’s activity amounted to joint participation. The parties herein, of course, strongly disagree over the existence of an agency by implication. The record reveals that the Currys previously worked together on such projects. In addition, although Thomas Curry alone signed the loan application, the record reveals that Maureen Curry, along with her husband Thomas, signed the promissory note and deed of trust for the purpose of securing a construction loan from North American. Other evidence revealed that Kenny’s maintained an account in both Thomas and Maureen Curry’s name. The record also reveals that Thomas and Maureen Curry jointly took title to Lots 165 and 166 by warranty deed in June, 1978.

It is now elementary in our law that property held by tenancy by the entirety between a husband and wife is an estate whereby each tenant owns a one-half indivisible portion of the whole estate and neither spouse has any exclusive management power or authority. Kaufmann v. Krahling, 519 S.W.2d 29, 31 (Mo.App.1975). No lien can arise against the property from the pledge of one spouse, nor may either spouse encumber or adversely affect the estate without the other’s assent. Thus, a wife’s interest in the property is not subject to a lien where she merely knows of or acquiesces in certain improvements made upon the property, where she merely shows an interest in the project, or where she makes suggestions as the work proceeds. Bryant v. Bryant Construction Co., 425 S.W.2d 236, 242 (Mo.App.1968). The mere reception of benefits by the wife or her mere wifely interest in the improvements does not render her interest in the estate subject to a lien. Bryant, supra.

However, our courts have recognized potential hardships to creditors and in a case where the evidence reveals joint participation by a wife, the interest of the wife will be subject to a lien claim. Kaufman, supra. The theory applied to justify a lien is implied agency.

In Bryant, the evidence revealed that the husband and wife discussed the details of and agreed to an addition to their property. Further, the wife inspected and approved the plans and selected colors for cabinets. None of these factors are revealed herein. However, the court in Bryant went further and declared that the most significant act by the wife in relation to the issue of implied agency was her execution of the note and mortgage for the purpose of financing the improvements. These latter actions by the wife, considered the most significant, are in fact present in the instant case. The court in Bryant relied upon E.C. Robinson Lumber Co. v. Lowrey, 276 S.W.2d 636 (Mo.App.1955), which held the fact that a wife executed a deed of trust tends to indicate her knowledge of and participation in the project. Such evidence has been considered significant in other cases. See Bovard v. Owen, 30 S.W.2d 154, 156 (Mo.App.1930) and Boeckeler Lumber Co. v. Wahlbrink, 191 Mo.App. 334, 177 S.W. 741 (1915). For a case factually similar to the instant case, see Poore v. International Paper Co., 455 S.W.2d 13, 20 (Mo.App.1970).

The evidence herein was sufficient to establish an implied agency between Thomas and Maureen Curry within Bryant, Robinson, Bovard, Boeckeler, and Poore, supra. The trial court erred in finding that there was no agency relationship between Thomas and Maureen Curry. The trial court further erred in failing to enter a personal judgment against Maureen Curry to the favor of Both Kenny and Williams for the amount claimed by both parties. The portion of the judgment which entered judgment in favor of Maureen Curry and against Kenny and Williams is reversed. The judgment is modified to show a personal judgment against Maureen Curry for the total sum of $5,884.70.

The finding of an implied agency between Thomas Curry and Maureen Curry and entry of a personal judgment against Maureen Curry gives rise to the following questions:

Question 1 — Does the entry of a personal judgment against Maureen Curry render her and Thomas Curry jointly liable?

Question 2 — Does the entry of a personal judgment against Maureen Curry thus render the claimed liens of Kenny’s and Williams valid, and thus impress the subject property with those liens? Incidentally, the second question, by its nature, reaches appellants’ point (4) above, and in addressing and answering question 2, point (4) is addressed and ruled.

The answer to question 1 is no. This answer is not reached because the evidence fails to show that Thomas Curry in fact incurred the liability and was in default against the claims of appellants, but rather, because the trial court erred in its entry of a personal judgment against Thomas Curry.

The record plainly reveals that Thomas Curry initiated proceedings in bankruptcy. He received a discharge in bankruptcy. There is no evidence upon the record herein to show that either Kenny’s or Williams were listed in the bankruptcy proceedings. The evidence, however, does support a finding that both Kenny’s and Williams had actual notice of those bankruptcy proceedings.

The present action, while appellants contend it was an action to perfect their liens, was nonetheless an action seeking a personal judgment against both Thomas Curry and Maureen Curry to enforce the claimed liens. As noted, Thomas Curry filed an action in bankruptcy. The present action, as it related to Thomas Curry, was stayed pursuant to § 362 of Title 11 of the Bankruptcy Code. Section 362 reads as follows: § 362 Automatic Stay

(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title operates as a stay, applicable to all entities, of—
(1) the commencement of continuations, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
(b) The filing of a petition under section 301, 302, or 303 of this title does not operate as a stay—
(3) under subsection (a) of this section, of any act to perfect an interest in property to the extent that the trustee’s rights and powers are subject to such perfection under section 546(b) of this title; (emphasis added)

A reading of Kenny’s petition, along with Williams’ cross-claim, reveals that neither seeks the mere perfection of their liens. Actions to perfect a lien are exempted from the stay section (§ 362) as set forth under § 362(b) above, but actions to enforce liens are not within the exception set forth in § 362(b) above. For a discussion of this issue, see In Re Houts, supra, which involved a lien claim under § 429.010, RSMo 1969. The court in Houts noted that § 362 does not stay proceedings to perfect a lien which is accomplished when the lien is filed, but the Hout’s court went on to point out that any action to enforce a lien does violate the stay as mandated by § 362.

The court in Houts noted at 707:

[Pjlaintiff here did more than perfect its lien. It also attempted to enforce it by the filing of a suit while debtors were in bankruptcy ... The filing of the action to enforce the lien violates the automatic stay, prohibiting any act to enforce against any property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title. Houts at 707 (emphasis added)

It will be noted infra that neither Kenny’s nor Williams had perfected their liens. At this juncture, it is important to point out further reasons why the court erred in entering a personal judgment against Thomas Curry.

Thomas Curry initiated his bankruptcy proceedings in December, 1981. In October, 1981, before the bankruptcy proceedings, the subject property was foreclosed on by sale, and the property title was transferred to North American. Thus, the subject property was not property within the bankrupt’s (Thomas Curry’s) estate. As noted, this action by Kenny’s and Williams is an action to enforce the claimed liens. The property by foreclosure had passed from the Currys to North American, thus even more clearly designating the present case an action for recovery of a personal judgment against Thomas Curry.

As noted above, § 362 prohibits such actions. What about the bankruptcy discharge of Thomas Curry? Does that alter the situation? The answer is no because § 524 of the Bankruptcy Code addresses that question. That sections reads:

§ 524 Effect of discharge
(a) A discharge in a case under this title—
(1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under section 727, 944, 1141, or 1328 of this title, whether or not discharge of such debt is waived;
(2) operates as an injunction against the commencement or continuation of an action, the employment of process, or any act, to collect, recover or offset any such debt as a personal liability of the debtor; or from property of the debtor, whether or not discharge of such debt is waived; ... (emphasis added)

In summary, the net effect of § 524, as it applied to appellants’ claims against Thomas Curry, for and upon a personal judgment, is that the personal judgment entered by the trial court against Thomas Curry is void and the trial court erred in the entry of that portion of the judgment herein.

Appellants contend that Thomas Curry was “re-served” on August 31, 1982 following his discharge in bankruptcy (in July, 1982) and hence § 524 does not apply. Section 524, however, protects Thomas Curry against a personal judgment regardless of when that judgment was entered. 3 Collier on Bankruptcy § 524.01 (15th ed. 1984) declares:

Section 524(a)(1) provides that a discharge granted to a debtor under sections 727, 944, 1141, or 1328 of title 11 voids any judgment obtained at any time with respect to any debt discharged under the abovementioned sections of the Code to the extent that such a judgment is a determination of the personal liability of the debtor, (emphasis added)

Collier goes on to point out that § 524(a) at 524-528 insures that a discharge will be completely effective and will operate to protect a debtor from a subsequent suit in a state court by a creditor whose claim or debt had been discharged.

Thus, the effect of § 524 is that should a creditor initiate a suit in a state court after the debtor is discharged and a judgment is obtained against the debtor, such judgment is null and void. The intent and purpose of said section is to make it unnecessary for the debtor to do anything at all in the state court proceedings. Thus, the present judgment against Thomas Curry herein is void. The “reserving” of Thomas Curry was of no effect and in and of itself was a nullity.

In addition, it is noted that the automatic stay under § 362 does not apply to actions against property which is not part of the bankrupt’s estate. As noted, due to the foreclosure sale, the subject property herein was not part of the bankrupt’s (Thomas Curry’s) estate. See In re Fintel, 10 B.R. 50 (Bkrtcy.D.Ore.1981). It has been noted, however, that a “personal judgment is the principal relief in a suit to enforce a mechanic’s lien and the lien itself is but an incident of the principal relief; although a lien cannot exist without a personal judgment, a personal judgment may exist without a lien.” Esser v. Fowler, 638 S.W.2d 327, 329 (Mo.App.1982). Therefore, in order to enforce the mechanic’s liens herein, it was necessary to have a personal judgment against Thomas Curry which, as observed above, was not possible because of § 524.

It is urged by appellants that the rule in Hupp v. Murphy Finance Co., 502 S.W.2d 345 (Mo.1973) would allow a lien even where a debt had been discharged. See also Cork Plumbing Co., Inc. v. Martin Bloom Associates, Inc., 573 S.W.2d 947 (Mo.App.1978). However, Hupp rules that a discharge in bankruptcy does not invalidate any valid lien on property of the bankrupt in existence prior to the petition or the adjudication in bankruptcy. In addition, it is pointed out that the lien may be enforced by any appropriate proceedings not involving a judgment in personam against the bankrupt. As will be observed infra, the liens claimed by Kenny’s and Williams were not valid.

Before reaching question no. 2 above, and hence the questions surrounding the alleged validity of appellants’ liens, another matter must be considered at this juncture. A question arises as to whether the debts claimed by Kenny’s and Williams were, as they relate to Thomas Curry, discharged in bankruptcy and thus within § 524(a).

Section 523(a)(3) of the Bankruptcy Code declares that debts which are neither scheduled nor listed are unaffected by the bankruptcy unless such creditor had notice or actual knowledge of the bankruptcy in such time to allow the creditor to timely file its claim. Moore v. Kuehn, 602 S.W.2d 713 (Mo.App.1980). The record herein fails to establish whether either Kenny’s or Williams was a listed or scheduled creditor, however, the evidence does support a finding that both received notice or were made aware of the bankruptcy filing of Thomas Curry prior to Curry’s discharge in bankruptcy. Interrogatories exchanged between the parties establishes that Kenny’s learned of the bankruptcy in mid June, 1982, and Williams learned of the bankruptcy on or about February 24, 1982. The bankrupt, Thomas Curry, received his discharge on July 6, 1982. This information or knowledge was supplied by Slagle to attorneys for appellants. This was sufficient to charge Kenny’s and Williams with notice by actual knowledge. Moore v. Kuehn, supra.

Under all the facts and circumstances herein, it must be concluded that both appellants had actual notice of the bankruptcy which in turn would have allowed for a timely filing of a claim in the bankruptcy proceeding. Thus, § 524 does apply against the appellant’s claims seeking personal judgment against Thomas Curry.

The portion of the judgment herein ordering a personal judgment against Thomas Curry is, for the reasons set forth above, null and void. The trial court erred in the entry of that portion of the judgment, and that portion is hereby reversed and is held null and void.

Question (2) above reads, “Does the entry of a personal judgment against Maureen Curry thus render the claimed liens of Kenny’s and Williams valid and thus impress the subject property with those liens?” As also noted above, this question includes appellants’ point (4) which charged the trial court erred in failing to impose a lien upon the subject property.

There is no need to restate why a personal judgment validly lies against Maureen Curry. She was in default in these proceedings. In addition, the evidence supports a finding of implied agency rendering her personally liable. She was not a party to her husband’s bankruptcy proceeding, nor did she seek like relief in any independent proceeding. She has no standing to assert her husband’s defenses under the bankruptcy laws on her own behalf.

The answer to question no. 2 is no for two simple reasons. In the first instance, the liens of both appellants are invalid because of the failure of both appellants to comply with the requirements of Missouri Mechanic’s Lien Act. The claimed liens, as to the invalidity thereof, are discussed separately.

The Williams’ lien, which descriptively is referred to as the “sod lien” arose out of a contract between Williams and the Currys in May, 1981. The purpose was for Williams to grade and sod the yard on Lot 165. Williams received no payment. Williams filed its lien within six months of the providing of goods and the completion of its services. Thus, Williams asserts its lien under § 429.560, RSMo 1978.

Before addressing the question of the validity of the lien, consideration must be given to a preliminary issue of whether or not the “sodding” of land comes within § 429.560, which is captioned, “Lien for ornamental plants or landscaping.” This question was answered in Rape v. Mid-Continent Building Co., 318 S.W.2d 519 (Mo.App.1958). In Rape, the plaintiff was employed to “sod the lots” which meant to furnish both sod and labor. The court ruled § 429.560 includes liens for sodding. A secondary aspect arises which involves the determination of what property may be impressed with a “sod lien” The particular statutory sections read as follows:

1. Any person who furnishes and plants trees, or other plants or who does any type of landscape planting shall have a lien on the trees, shrubs, bushes or other plans so planted and upon the land on which they are situated to the same extent and enforceable in the same manner as are mechanics liens, except that:
(2) Such lien shall be enforceable only against the property of the original purchaser of such plants unless the lien is filed against the property prior to the conveyance of such property to a third person.

In the instant case, the evidence reveals that Maureen and Thomas Curry purchased the sodding from Williams. However, prior to the filing of the lien by Williams (lien filed on November 4, 1981), the subject property was sold by foreclosure, and a deed transferring title to a successor owner (North American) occurred on October 19, 1981. Thus, under the above statute which mandates that the lien must be filed against the original purchaser prior to conveyance, Williams’ claim for a lien must fail.

Williams’ contention that North American should be construed as an original purchaser because it held the deed of trust does not persuade. The mere holding of a deed of trust does not change the holder’s status of holder to that of owner. R.L. Sweet Lumber Co. v. E.L. Lane, Inc., 513 S.W.2d 365 (Mo.1974). See also City of St. Louis v. Koch, 156 S.W.2d 1 (Mo.App.1941).

As the record reveals, Williams did not have a validly filed lien for its landscaping claim and the trial court did not err in denying Williams’ claim for a lien.

As noted above, Kenny’s supplied carpeting, tile, and wallpaper, along with labor, upon the subject property. Kenny’s and the Currys had previous dealings and Kenny’s maintained an open account for the Currys. Kenny’s supplied the requested materials and performed the work and payment was not made. On September 8, 1981, Kenny’s commenced the process to establish a lien. Kenny’s filed a Notice of Claim of Mechanic’s Lien with the Office of Recorder in Jackson County, Missouri.

In determining the validity or lack validity of Kenny’s claimed lien, it must first be determined whether Kenny’s, in this instance, was an original contractor or a subcontractor. This determination is necessary because Chapter 429 prescribes different requirements for the two contractors. Kenny’s asserts that it was a subcontractor and thus not required to comply with the statute requiring notice of a lien claim to the property owner. An original contractor under the mechanic’s lien law is required to furnish such notice. § 429.012, RSMo 1978.

The evidence upon the record herein reveals that at the time of the Kenny’s-Curry contract, the Currys were the owners of the subject property. Because of this fact, Kenny’s was cast into the role of an original contractor. “One who makes a contract to perform labor or furnish materials with the then owner of the property is an original contractor.” Vasquez v. Village Center, Inc., 362 S.W.2d 588, 593 (Mo.1962). Kenny’s, by its petition, declared at the time of the contract with the Currys that the Currys were the owners of the property. An important factor is whether the contractor dealt with the then owner of the property and not the usual status of a contractor. A case factually similar which discusses this is J.R. Meade Co. v. Forward Construction Co., 526 S.W.2d 21 (Mo.App.1975). As regards the dealings between a contractor and an owner, see R.J. Stephens Drywall and Painting Co. v. Taylor-Morley-Simon, Inc., 628 S.W.2d 374 (Mo.App.1982). Because of the particular facts and circumstances herein, the conclusion must be reached that at the time of the Kenny’s-Curry contract, the Currys were the owners of the property and Kenny’s was an original contractor.

Actions to establish and enforce a mechanic’s lien are purely statutory in nature and the averments must plead and the evidence must prove the statutory elements before recovery is permitted. Structo Corp. v. Leverage Investment Enterprises Ltd., 613 S.W.2d 197 (Mo.App.1981). An essential element requiring both pleading and proof is notice to the owner. The burden of providing such notice and the proof thereof falls upon the party seeking the establishment and enforcement of the lien. R.J. Stephens Drywall and Painting Co., supra. The plain language of the statute, § 429.012, requires that notice be provided to the owner. If the written notice appears on the first invoice, it follows that proof of delivery of that invoice/notice is necessary.

Section 429.012.1(d) provides that the notice can be “delivered with the first invoice ...” In the instant case, neither the pleadings nor the evidence established that the required notice was delivered to Thomas Curry. What the record does reveal is Kenny’s petition alleging the filing of a notice in the Recorder’s Office. Secondly, Kenny’s offered to the trial court a copy of its invoice containing the required notice language of the statute. This invoice is addressed to Thomas Curry. However, Kenny’s offered no proof that the invoice inclusive of the statutory notice was ever delivered to Thomas Curry. Without proof of the delivery of the required notice, Kenny’s lien claim must fail.

While this court is mindful of the fact that it has been held our mechanic’s lien law should be liberally construed, and this court acknowledges Kenny’s assertion of that principle, this court is also mindful that requirements of our statute are mandatory. Thus, when the statute clearly sets forth a requirement, then there is nothing to which any construction, even a liberal construction, can be applied. R.J. Stephens Drywall and Painting Co., supra.

Kenny’s lien claim must fail due to a lack of proof of compliance with the mechanic’s lien law, to wit, that notice to the owners (the Currys) was even delivered by Kenny’s as an original contractor.

The trial court did not err in refusing to impress a lien against the subject property, as neither Kenny’s nor Williams had a valid existing lien. That portion of the judgment denying said liens is affirmed. This particular ruling answers question no. 2 above and disposes of appellants’ point (4) above.

There remains one final matter, and that is appellants’ contention [point (2) above] that the trial court erred in excluding evidence that North American would pay for the goods and services, because that evidenced an agency between Thomas and Maureen Curry.

This court is somewhat at a loss relative to the relation of the refused evidence and the question of agency, but be that as it may, it is concluded that the trial court did not err in the exclusion of such evidence. In the first instance, because of other evidence upon the record, it has been determined that an implied agency between Thomas Curry and Maureen Curry did exist and the ruling by this court has corrected the error of the trial court in that regard. Secondly, and more importantly, the trial court correctly excluded such evidence because neither by pleading nor under the evidence did either appellant seek any recovery against North American. The trial court did not err in sustaining the objection of North American to such evidence. There is no merit to appellants’ point (2) and it is ruled against appellants.

In conclusion, it is the decision of this court that the portion of the judgment denying appellants’ claim for a personal judgment against Maureen Curry is reversed and personal judgment against Maureen Curry is hereby entered in the sum of $5,884.70.

Further, the portion of the judgment directing a personal judgment against Thomas Curry is hereby set aside and that portion of the judgment is ruled null and void. Still further, the portion of the judgment denying mechanic’s liens against the subject property is affirmed.

All concur.

      . Neither Kenny's nor Williams sought in the bankruptcy proceeding any lifting of the stay mandated by § 362. In a situation where there exists a valid lien, relief may be obtained upon the request of a party of interest through § 362(d) of the Bankruptcy Code, which allows a court to terminate, annul, modify, or condition such stay. Failure to request relief under § 362(d), coupled with an attempt to enforce a lien, can result in the creditor being held in contempt. In re Houts, 23 B.R. 705 (Bkrtcy.W. D.Mo.1982). ,

      . It is noted in the file before this court that there is a restraining order containing no proof of service directed to Kenny’s Tile.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Dennis A. SMITH, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35801.
    Missouri Court of Appeals, Western District.
    Oct. 16, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Nov. 27, 1984.
    Joseph H. Locascio, Sp. Public Defender, John M. Torrence, Asst. Sp. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   ORDER

PER CURIAM:

Appeal from denial of Rule 27.26 motion to vacate three convictions for robbery in the first degree, Section 569.020, RSMo 1978, and concurrent sentences of fifteen years imprisonment for each robbery.

The judgment is affirmed. Rule 84.16(b).


author: GREENE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Terry SHEPARD, Defendant-Appellant.
    No. 13607.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 14, 1984.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 29, 1984.

      John D. Ashcroft, Atty. Gen., Michael Finkelstein, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Stanley Brian Cox, Gary W. Fleming, Fleming & Fritz, Inc., Sedalia, for defendant-appellant.
   GREENE, Judge.

Defendant, Terry Shepard, was jury-convicted of second degree burglary, § 569.-170, and stealing, § 570.030, and thereafter sentenced by the trial court to one year imprisonment on each charge in accordance with the jury verdicts. The information charged that Shepard unlawfully entered a building in Vernon County, Missouri, owned by the estate of Lula Kircher, for the purpose of stealing and that he stole property of the estate with a value of at least $150 which was in the building.

The first trial on the charges was held in Vernon County on September 29, 1981. Defendant was found guilty and was sentenced to two years’ imprisonment on each charge. Shepard’s conviction was reversed and the cause remanded by the Missouri Court of Appeals, Western District, for evi-dentiary error. State v. Shepard, 654 S.W.2d 97 (Mo.App.1983).

In his brief filed here, Shepard states that he admitted in his testimony at the first trial that he entered a home located at Rural Route 1, Nevada, Missouri, owned by the estate of Lula Kircher and assisted two other individuals, one of whom was Mark Jackson, in removing personal property from the home. Shepard further testified that Jackson had told him the home and furnishings were his grandmother’s and “his grandmother had died a year or two ago and in the will she left it to him and his sister ....” By this testimony, Shepard was trying to show that he had no intent to commit the crimes of burglary and stealing when he entered the home. Jackson had admitted that he and Shepard had planned and carried out the burglary and theft in question.

On September 16, 1983, the case was transferred to Barton County on a change of venue and set for trial on October 13, 1983. Before that date, Shepard’s request for a continuance was granted, and the trial was reset for November 9, 1983. On the date of trial, the prosecuting attorney requested that he be permitted to read the testimony of Jackson given at the first trial for the reason that Jackson was unavailable as a witness and that a good faith effort had been made to locate and subpoena him. After an evidentiary hearing, the trial court granted the request, over the objection of defendant.

In his first point relied on, Shepard contends that the state failed to make a good faith effort through the exercise of reasonable diligence to produce Jackson as a live witness at the second trial and, therefore, the use by the state of Jackson’s first trial recorded testimony as evidence was reversible error.

Shepard’s attorney did not object at trial to the use of the transcript of Johnson’s prior testimony on the grounds of the state’s failure to make a diligent attempt to find Jackson, but rather objected to certain testimony in the transcript which he considered inadmissible, which testimony, incidentally, was stricken by the trial court. Where the trial objection to the admission of evidence is based on a specific ground, and a different reason for the objection is asserted on appeal, nothing is preserved for review. State v. Williams, 575 S.W.2d 838, 840 (Mo.App.1978).

Even if we were to review the point on plain error grounds, the record made at the hearing before the trial court conclusively establishes that the state made a diligent and good faith effort to find Jackson prior to trial. The prosecuting attorney in this case not only issued three subpoenas for Jackson, it questioned his friends, relatives, parole officer and others in an effort to find him. The facts in this case concerning the effort to find Jackson parallel those in State v. Denmon, 635 S.W.2d 345 (Mo.1982), where our supreme court found that a good faith effort was made to obtain the presence of the witness at trial. The point is denied.

In his remaining point, Shepard argues that the information charging him with burglary and stealing was defective, as the stealing portion of the charge failed to advise Shepard of the possibility of a fine as punishment. No objection was made to the information prior to or during trial. Defenses or objections based on defects in an information, other than failure to show jurisdiction in the court or to charge an offense, may be raised only before trial. Failure to raise such an objection constitutes a waiver. Rule 24.04(b).2; State v. Donnell, 430 S.W.2d 297, 301 (Mo.1968).

Even if the information was defective for the reason urged, it was not fatally so, as it sufficiently advised Shepard as to the charge against him. In addition, count I (burglary) contained the magic number (§ 560.011) advising defendant that a fine was possible punishment for a class C felony. Second degree burglary and stealing of articles worth at least $150 in the progress of a second degree burglary are both class C felonies.

In addition, instructions 5 and 8, which were the verdict directing instructions, specifically advised the jury that they could assess a fine as punishment on both the burglary and the stealing charge. Even if considered on the merits, we fail to see where Shepard was prejudiced by the defect in the information that he has belatedly claimed as a trial court error. The point has no merit.

Judgment affirmed.

TITUS, P.J., and FLANIGAN, J„ concur.

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


author: BERREY, Judge.

text:
    In the Matter of Estate of George E. MAPES, deceased. William E. CROOKS, Plaintiff-Appellant, v. James T. HOLCOMB, Executor, Defendant-Respondent.
    No. WD 34695.
    Missouri Court of Appeals, Western District.
    Nov. 20, 1984.
    Charles A. Powell, Jr., Macon, for plaintiff-appellant.
    R. Max Humphreys, Trenton, for defendant-respondent.
    Before LOWENSTEIN, P.J., and MAN-FORD and BERREY, JJ.
   BERREY, Judge.

Appellant is the nephew and devisee of George E. Mapes, now deceased. He appeals from the denial by the trial court of his petition to remove the executor of Mapes’ decedent estate.

On October 25, 1980, George E. Mapes died testate in Grundy County, Missouri. Over the years, Mr. Mapes had held the public offices of County Treasurer, Clerk and Sheriff. At the time of his death, he held assets totaling approximately one-third million dollars.

Through his will, dated January 10,1980, Mr. Mapes appointed James T. Holcomb, an attorney who is grandnephew to Mapes and respondent herein, as his executor to serve without bond. Holcomb’s brother, John, was designated as alternate executor.

The will was comprised of the original will dated January 10, 1980, and a codicil dated October 23, 1980, two days before Mapes’ death, authorizing the executor to “sell any and all of my property, real, personal or mixed as he deems advisable in his sole discretion and without the necessity of obtaining any order of any Court having any jurisdiction over my estate.” Both the original will and codicil were drawn on legal paper which bears on the margin the following:

Holcomb and Roberts

Attorneys at Law

807 Main Street

Trenton, Missouri 64683

Telephone AC 816-359-3973

Whereas the signature of the testator on his will is strong and quite legible, the signature on the codicil is entirely illegible and bears the notation “by his mark.”

After Mapes’ death in October of 1980, executor Holcomb read the deceased’s will and codicil to the devisees and heirs in the funeral chapel. He made no mention of the value or extent of the estate property.

On December 3, 1980, Inventory and Ap-praisement was filed showing the estate to consist of a three-bedroom home, valued at $20,000.00; a two-bedroom home, barn and five acres, valued at $75,000.00; and miscellaneous personal property, valued at $29,833.68. On March 11, 1981, an additional Inventory and Appraisement was filed listing mutual fund holdings of $22,-211.19.

In September, 1981, appellant and the other beneficiaries were notified for the first time of the inventoried assets and their approximate shares of the estate from a copy of the Missouri Inheritance Report. Practically one year later, in August, 1982, the estate still remained open because of, according to executor Holcomb, an inability to dispose of real property. Appellant, out of curiosity and at the request of several non-resident beneficiaries, went to the Probate Court of Grundy County to examine the Mapes Estate file. There he found the Federal Estate Tax Return dated September 10, 1981, reporting the following jointly owned properties which were not included in the previous estate inventories:

(1) A certificate of deposit at the Cook and Vencil Bank, Galt, Missouri, in the sum of $20,000 issued October 7, 1980, joint with Robert C. Smith.
(2) A certificate of deposit at the American Bank, Trenton, Missouri, in the sum of $25,000 dated July 31, 1980, joint with James T. Holcomb and John L. Holcomb.
(3) A certificate of deposit with the Trenton National Mercantile Bank, Trenton, Missouri, in the sum of $15,000 dated October 7, 1980, joint with James T. Holcomb and John L. Holcomb.
(4) A certificate of deposit at the Trenton Trust Company, Trenton, Missouri, in the sum of $71,000 dated September 24, 1980, joint with James T. Holcomb and John L. Holcomb.
(5) Checking account at the Trenton Trust Company, Trenton, Missouri, joint with James T. Holcomb and John L. Holcomb.
(6) Savings account at the Trenton Trust Company, Trenton, Missouri, in the sum of $2,455.95 joint with James T. Holcomb.
(7) 600 shares of Goodheart-Wilcox common stock joint with James T. Holcomb and John L. Holcomb, $5,250.

An examination of these properties reveals that the transactions involving the certificates of deposits with the executor took place less than three months before the death of Mapes. Executor Holcomb and his brother John claim ownership to $124,554.94 worth of the non-inventoried property, approximately forty-five percent of the estate.

Appellant also discovered that Holcomb had erred in not taking the Federal Estate Tax payment of $45,522.33 as a deduction against the Missouri Inheritance Tax.

Finally, appellant discovered that the total Federal Estate Tax on all the taxable Mapes’ property, inventoried and non-inventoried, was $45,522.33, and that executor Holcomb had made the entire payment from inventoried property with no contribution to the payment made on behalf of the non-inventoried jointly owned property. It was later revealed that Holcomb had borrowed against the estate property for the money to pay the estate taxes when due. Most of Mapes’ cash assets were tied up in the non-inventoried properties.

In light of the foregoing discoveries, on September 29, 1982, appellant filed a Petition for Removal of Executor reading:

III. That at the time of and since his said appointment as executor the said James T. Holcomb, because of conflicts of interest between himself and said estate and the beneficiaries of said estate, has become an unsuitable person to execute the trust so reposed in him and to perform the duties as executor of said estate.

Appellant alleges that Holcomb failed to include the aforementioned joint assets which the beneficiaries claim as property of the estate, failed to advise the beneficiaries of such assets, paid the Federal Estate Tax entirely from the inventoried estate, and failed to see to the proper payment of the Missouri Inheritance Tax.

The trial court denied appellant’s petition to remove the executor in finding that “the proponents of the petition have failed in their burden to show to the court that it would be to the best interests of the estate that James T. Holcomb, Executor should be removed therefrom.”

On October 18, 1982, appellant Mr. Crooks, et al., instituted further proceedings, to wit a petition in three counts: Count I-Petition for Discovery of Assets; Count II-Petition for Declaratory Judgment Respecting Payment of Estate Taxes; Count Ill-Petition for Order Directing the Amendment of Missouri Inheritance Tax Report. This petition is still pending and is mentioned solely to advise the reader of the machinations regarding this estate.

This appeal ensued to determine the issue of whether the trial court erred in not removing the executor.

The substantial conflict of interest between Holcomb and the Mapes estate as to the method of paying estate taxes warrant Holcomb’s removal as executor pursuant to § 473.140, RSMo 1978, Missouri case law and public policy.

The relevant portion of the will reads, “Fifth: Any and all inheritance and estate taxes due on my estate shall be paid prior to distribution as herein set forth.” Holcomb asserts that he paid the taxes according to the wishes of Mapes. At the hearing, he was allowed to testify that Mapes had intended the tax burden to fall entirely on the estate assets. However, Missouri law applies the doctrine of equitable apportionment in determining how taxes are to be paid, Carpenter v. Carpenter, 364 Mo. 782, 267 S.W.2d 632 (1954), in absence of clear contrary direction by the testator, Jones v. Jones, 376 S.W.2d 210, 212 (Mo. banc 1964). Carpenter, supra.

The language of the will is ambiguous as to the method of paying estate taxes. It directs the executor to pay the inheritance taxes prior to distribution of the assets as set forth in the will. The language could be construed to authorize either apportionment of the taxes or payment from the estate assets in that it speaks only of their distribution.

Executor Holcomb unilaterally construed the language of the will to his benefit and to the detriment of the other heirs thereby putting himself at odds with the estate.

Where there exists a real and substantial controversy which shows the executor to be entirely antagonistic with the estate, it is the positive duty of the court to remove the executor. Matter of Estate of Stickler, 551 S.W.2d 944 (Mo.App.1977); Matter of Estate of Gould, 547 S.W.2d 863 (Mo.App.1977); Davis v. Roberts, 206 Mo.App. 125, 226 S.W. 662 (1920). Such is the instant case. Although the fact situations in the aforementioned cases are not identical to the instant case, the concerns underlying the opinions can not be ignored. “It is contrary to the policy of the law to permit an executor who stands in a position somewhat like that of a trustee to assume a position where his interest conflicts with that of the estate, for it is contrary to general experience that one is able to fairly represent his own interest and at the same time represent those of another which are in conflict with his own.” Stickler, supra, at 949, citing Davis, supra, 226 S.W. at 664.

The executor’s position is entirely antagonistic to the estate in that payment of taxes according to the apportionment doctrine would have placed a tax burden of approximately $17,000 on the jointly held non-inventoried property and payment of taxes according to the executor cost the inventoried estate the said sum. In order to have been faithful to the fiduciary position imposed on him, as executor, Holcomb should have sought construction of the will rather than unilaterally construing its meaning.

This court in exercising its broad powers and pursuant to the holding in Stickler, supra, determines that the executor is unsuitable to remain in his position due to this manifest conflict of interest.

Appellant’s other allegations need not be addressed at this time in that the conflict regarding estate taxes is sufficient for determination of the issue on appeal.

The cause is reversed and remanded to the trial court to enter its order removing Mr. Holcomb as executor of the estate of George E. Mapes.

Judgment reversed.

All concur.


author: NUGENT, Judge.

text:
    Alexandra DAVIDSON, Plaintiff-Appellant, v. Rich ELLISON, et al., Defendants-Respondents.
    No. WD 34721.
    Missouri Court of Appeals, Western District.
    Nov. 20, 1984.

      Dennis J.C. Owens (argued), Gary McMillan, Kansas City, for plaintiff-appellant.
    Joseph R. Colantuono (argued), Kansas City, for defendants-respondents.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   NUGENT, Judge.

Plaintiff Alexandra Davidson originally filed suit for slander against defendants Rich Ellison, Rich Ellison Enterprises, Inc., Margaret A. Sullins, and Stadium Vehicles, Inc. The circuit court granted summary judgment in favor of defendants Margaret A. Sullins, Rich Ellison, and Rich Ellison Enterprises, Inc. Plaintiff appeals from that determination. While this appeal was pending, plaintiff attempted to amend her petition, adding a count against the Missouri Insurance Guaranty Association. In addition, she later lodged with the clerk of the circuit court a “voluntary dismissal” of the remaining original defendant, Stadium Vehicles, Inc. We dismiss the appeal as premature for lack of a final judgment and lack of jurisdiction.

In October, 1981, plaintiff filed suit for slander naming Rich Ellison, Rich Ellison Enterprises, Inc., Margaret A. Sullins, and Stadium Vehicles, Inc., as defendants. In February and July of 1982, plaintiff filed claims for slander with defendants’ insurer, Proprietors Insurance Company. At that time Proprietors was insolvent and the Missouri Insurance Guaranty Association (M.I. G.A.), pursuant to § 375.785, was handling claims filed against it. Plaintiff was informed of this fact and filed a claim with M.I.G.A. for the alleged slander. M.I.G.A. later denied that claim.

In October of 1982, defendants Ellison, Ellison Enterprises and Sullins filed a motion for summary judgment on the ground that plaintiff’s filing of a covered claim with M.I.G.A. constituted a general release of those three defendants from liability in accordance with § 375.785.4(l)(a)c. On January 13, 1983, the court sustained the motion and entered an order dismissing the three defendants from the action and directing that the action against Stadium Vehicles was to proceed. The plaintiff moved to set aside the judgment, but on March 18, 1983, the court denied that motion. Nevertheless, the court at the same time granted plaintiff “leave to amend her petition (conditionally) ... as soon as possible.” (The “condition” upon which the leave was granted was not specified.) On March 28, 1983, plaintiff filed a notice of appeal to this court from the January 13,1983, order.

Plaintiff did not file her second amended petition until August 15, 1983. In Count I of that petition she reasserted her earlier claim of slander against the original four defendants. She also added Count II against the Missouri Insurance Guaranty Association for its denial of plaintiffs earlier insurance claim. Plaintiff alleged that the original defendants were liable to plaintiff for slander, that those claims were covered by Proprietors’ policy, and that M.I.G.A., standing in the shoes of the insolvent insurer, denied payment of the claim in violation of its statutory duty. The record contains no answer of defendants to plaintiffs second amended petition.

On appeal, defendants contest our jurisdiction in this case because plaintiffs claims against Stadium Vehicles and M.I. G.A. had not been determined below. In response, purportedly pursuant to Rule 67.-01, plaintiff lodged in the circuit court a voluntary dismissal of Stadium Vehicles, Inc., and lodged a copy of that document with the clerk of this court. By letter to the clerk, plaintiffs counsel advised us that the document lodged with our clerk was only a copy of the dismissal “filed” in the circuit court where the case against defendant Stadium Vehicles was still pending. In that letter, counsel asserted that the action in the circuit court was continuing against a new defendant, M.I.G.A.

Plaintiff claims that the circuit court erred in granting summary judgment because it misconstrued § 375.785.4(l)(a)c. We cannot reach the merits of the appeal because all the parties and issues have not been disposed of below; the summary judgment entered here is an interlocutory order and not a final judgment for purposes of appeal and the court did not specifically designate it as final pursuant to Rule 81.06. Nor does the judgment pertain to “an entirely separate and independent claim unrelated to” the claim against Stadium Vehicles. Accordingly, we dismiss the appeal and remand the case to the circuit court.

Although the law pertaining to finality of judgments for purposes of appeal is replete, this case provides one interesting addition to that body of decisions. A summary judgment which does not dispose of all parties and issues is a non-ap-pealable interlocutory order. Bell v. Garcia, 639 S.W.2d 185, 188 (Mo.App.1982). The lower court may specifically designate its order a final judgment pursuant to Rule 81.06, but the court did not do so here. Where a party attempts to appeal from an interlocutory order, the court of appeals can acquire no jurisdiction to hear the case on its merits. Edwards v. Sittner, 206 S.W.2d 578, 580 (Mo.App.1947); Hays v. Dow, 237 Mo.App. 1, 166 S.W.2d 309, 315 (1942). Plaintiff filed her notice of appeal on March 28, 1983, while her claim against Stadium Vehicles was still pending in the lower court. The filing was premature because the circuit court had not yet exhausted its jurisdiction and had not designated its order a final judgment. See, Bennett v. North Brighton Townhouses, Inc., 588 S.W.2d 100, 102 (Mo.App.1979).

Nevertheless, the mere filing of the notice of appeal suspended the circuit court’s jurisdiction over the entire case despite the fact that as of March 28,1983, the action against Stadium Vehicles had not been terminated. Rule 81.06 provides the only way for dividing the jurisdiction over the case between the circuit and the appellate court. It empowers the circuit court to spin off part of the case for immediate appellate review by designating as a final judgment an order which does not dispose of all parties and issues. Rule 81.06 also authorizes the circuit court to prevent such division of jurisdiction. The court may decline to deem a judgment of a separate, independent and unrelated claim in the case as a final judgment for purposes of appeal by ordering it entered as an interlocutory judgment to be held in abeyance until all other claims are determined.

Ordinarily, the filing of an effective notice of appeal cuts off the trial court’s jurisdiction to exercise any judicial function in the case and vests the jurisdiction in the appellate court. Love v. First Crown Financial Corp., 662 S.W.2d 283, 285 (Mo.App.1983). For most purposes, the circuit court no longer has an active case pending on its docket, its jurisdiction being limited to the exercise of ministerial functions and functions provided for by statute or rules of procedure. State ex rel. Steinmeyer v. Coburn, 671 S.W.2d 366, 371-72 (Mo.App.1984).

After the filing of the notice of appeal, therefore, a party cannot be added, a petition cannot be amended and a party cannot be dismissed. For such purposes, the case is in suspension until the trial court’s full judicial jurisdiction is restored. If that were not so, the trial court would be free to proceed with the handling and disposition of part of a case even while an appellate court considered the appeal of another part of the case. Impossible procedural jumbles would be created.

For those reasons, plaintiffs “filing” of an amended petition and of a voluntary dismissal while this appeal awaited our decision were nullities.

Although this court did not acquire jurisdiction to hear the merits of plaintiffs appeal, nevertheless, by the filing of the notice of appeal we were vested with the jurisdiction to determine whether the appeal was ripe so that full judicial jurisdiction of the merits of the case had been transferred to us. In the interim, absent a proper order under Rule 81.06 designating its summary judgment as a final judgment for purposes of appeal, the trial court had no case before it in which plaintiff could proceed to prosecute her cause.

For the foregoing reasons, we hold that this court never acquired jurisdiction to entertain this appeal. Accordingly, we dismiss the appeal.

All concur.


text:
    Paul F. STOLLINGS, et al., Appellants, v. Arthur R. KINCAID, et al., Respondents.
    No. WD 34831.
    Missouri Court of Appeals, Western District.
    Nov. 20, 1984.
    Lydia M. Burns, Darrell W. Moore, Kansas City, for appellants.
    Patricia L. Hughes, Leary G. Skinner, Liberty, for respondents.
    Before TURNAGE, C.J., and MANFORD and KENNEDY, JJ.
   ORDER

PER CURIAM:

Appeal from dismissal of will contest.

Judgment affirmed. Rule 84.16(b)


text:
    ST. LUKE’S HOSPITAL, Respondent, v. MIDWEST MECHANICAL CONTRACTORS, INC., Appellant.
    No. WD 34990.
    Missouri Court of Appeals, Western District.
    Nov. 20, 1984.

      Richard W. Miller, William J. DeBauche and Stephen R. Miller, of Miller & Glynn, P.C., Kansas City, for appellant.
    Allan V. Hallquist of Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for respondent.
    Before TURNAGE, C.J., and SHAN-GLER and MANFORD, JJ.
   MANFORD, Judge.

This is an appeal from a circuit court judgment in the form of an order of a temporary stay of arbitration pursuant to § 435.355, RSMo 1978. The judgment is affirmed.

While formally three points are presented, in reality they are but variations of a single alleged error, to wit, the trial court incorrectly interpreted a specific provision within a construction contract. The three variations are considered within the disposition of the appeal.

In summary, the applicable facts are as follows.

On December 7, 1982, respondent, St. Luke’s Hospital (hereinafter St. Luke’s), issued invitations to bid on a contract for the construction of a flue gas heat recovery system. The project was in part to be funded by the federal government. St. Luke’s had requested the right to negotiate the selection of the project contractor, but the Department of Energy, as the approving federal agency, required that St. Luke’s submit the mechanical work for competitive bidding. St. Luke’s extended the bid invitation to five Kansas City area mechanical contractors. Appellant, Midwest Mechanical Contractors, Inc. (hereinafter Midwest), was one of the bidding contractors.

Midwest submitted the lowest bid in the sum of $116,800.00. St. Luke’s awarded the contract to the second lowest bidder, with a bid of $119,000.00, the A.D. Jacobson Co., Inc. There was a “formal bid opening” at which time no formal rejection of the Midwest bid was entered.

The evidence reveals that the bidding contractors were required to complete their bid proposal form which contained information for the bidders relative to the project specifications. Included with the specifications was a two-page form captioned, “Bidder’s Statement of Qualifications.” Each bidder was required to submit proof of its experience, qualifications, financial responsibility, and ability to complete the project. The specifications, when read, establish that St. Luke’s was soliciting bids, and within sub-section 4(g), St. Luke’s, as owner, reserved the right to waive any infor-malities in the proposals and also to reject any and all of the proposals. It was established that the Vice-President of Midwest had read and was familiar with the foregoing reservations. In addition, within each proposals form was a “bidder’s acknowledgment” that the bidder understood St. Luke’s reserved the right to waive infor-malities and to reject any and all bids.

When read, the invitation does not state directly, nor is there any implication, that the lowest bidder was guaranteed the award of the contract. Section 8(b) of the invitation informed all bidders of the criteria that St. Luke’s, as owner, would consider in the awarding the contract. That section reads:

In awarding the contract, Owner [St. Luke’s] may take into consideration the ability to promptly handle the additional work, skill, facilities, capacity, experience, ability, responsibility, previous work and financial standing of bidder; quality, efficiency and construction of equipment proposed to be furnished; period of time within which equipment is proposed to be furnished and delivered; and necessity of prompt and efficient completion of work herein described. Inability of any bidder to meet the requirements mentioned above may be cause for rejection of his proposal.

St. Luke’s entered into a contract with the A.D. Jacobson Co., Inc. and at no time did St. Luke’s and Midwest enter into any agreement.

In addition to the above specific terms, the written specifications contained a part captioned, “General Conditions.” This part specified the mutual obligations as between the “owner” [St. Luke’s] and the “contractor” [i.e., the contractor selected by St. Luke’s]. The terms “owner” and “contractor” are defined within this part. St. Luke’s is defined as “owner”. “Contractor” is defined as, “[t]he person, firm or corporation with whom Owner has entered into an agreement.” In addition, the term “agreement” is defined as “[t]he written agreement between Owner and Contractor covering the work to be performed; other Contract Documents are attached to the agreement and made part thereof as provided therein.”

In addition to the foregoing, there is found with the “General Conditions” Article 13, which reads as follows:

ARTICLE 13
Arbitration
All claims, disputes and other matters in question between OWNER and CONTRACTOR arising out of, or relating to the Contract Documents or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining subject to the limitations of this Article 13. This agreement so to arbitrate and any other agreement or consent to arbitrate entered into in accordance herewith as provided in this Article 13 will be specifically enforceable under the prevailing arbitration law of any court having jurisdiction.

Subsequent to the award of the contract to Jacobson, Midwest filed its demand for arbitration. This demand was premised upon Midwest’s alleged rights under the above Article 13. It was and continues to be the position of Midwest that St. Luke’s should have awarded the contract to Midwest since Midwest submitted the lowest bid. In response, St. Luke’s filed an “Application to Stay Threatened Arbitration Proceedings” in the circuit court within and pursuant to § 435.355, RSMo 1978. A hearing was conducted and both St. Luke’s and Midwest submitted evidence. The circuit court then entered its order staying the pending arbitration proceedings. The circuit court, in entering its order, declared that upon the evidence submitted there was found no agreement to arbitrate between St. Luke’s and Midwest. This appeal followed the entry of the stay order.

As noted above, the main assertion of Midwest is that the circuit court erred in its interpretation of the above Article 13 of the “General Conditions” of the contract. Within this broad assertion, Midwest includes three specific contentions, which are summarized and disposed of as follows:

(1) The evidence revealed that St. Luke’s did not have a substantial and bona fide objection to the agreement to arbitrate in that Article 13 expressly provides that “all claims and disputes and other matters in question between owner and contractor arising out of or relating to the contract documents or the breach thereof shall be decided by arbitration;” the proposal forwarded to the bidders expressly stated on its face that this portion of the bidding documents was part of the contract documents and any bidding disputes that were covered by the contract documents in that they arose out of and related to the contract documents, and the court erred because even if there existed two alternative interpretations of Article 13, one permitting and another preventing arbitration, the trial court could not positively declare that the parties intended to exclude the dispute from arbitration since the trial court merely found that no agreement existed and in so finding the trial court “failed to consider the existence of a color-able dispute of an arbitriable nature which requires arbitration.”

In support of the foregoing contention, Midwest cites to § 435.355, American Federation of Television and Radio Artists, AFL-CIO v. Taft Broadcasting Co., Station WDAF, 368 P.Supp. 123 (W.D.Mo.1973), Greater Kansas City Laborers District Council v. Builders Association, 213 F.Supp. 429 (W.D.Mo.1963), and National Railroad Passenger Corp. v. Missouri Pacific Railroad Co., 501 F.2d 423 (8th Cir. 1974).

Section 435.355 reads:

435.355. Proceedings to compel or stay arbitration
1. On application of a party showing an agreement described in section 435.-350, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party; otherwise, the application shall be denied.
2. On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.
3. If an issue referable to arbitration under the alleged agreement is involved in action or proceeding pending in a court having jurisdiction to hear applications under subsection 1 of this section, the application shall be made therein. Otherwise and subject to section 435.435, the application may be made in any court of competent jurisdiction.
4. Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.
5. An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

The reliance of Midwest upon 435.-355 is misplaced. That section provides a statutory scheme for compelling or staying arbitration proceedings. However, the application of that statutory section is premised upon the pre-existence of an agreement between the parties as described within § 435.350, RSMo 1978. Section 435.350 reads:

435.350. Validity of arbitration agreement
A written agreement to submit any existing controversy to arbitration or a provision in a written contract, except contracts of insurance and contracts of adhesion, to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract; provided, however, that contracts which warrant new homes against defects in construction shall not be construed to be ‘contracts of insurance or contracts of adhesion’ for purposes of this section.

Under the particular facts and circumstances of the instant case, it is clear that Midwest and St. Luke’s never entered into any written agreement as intended within § 435.350. The most obvious evi-dentiary support for the finding that Midwest and St. Luke’s never entered into any agreement, in addition to Midwest’s not being awarded the contract, comes from the contract document itself which defines “contractor” as noted above. Midwest never acquired status or standing as a “contractor” within the term and meaning of the contract. Hence, it must follow that § 435.355 is not applicable in support of Midwest’s claim for arbitration.

By its very wording, Article 13 uses the term “owner” and “contractor”, and those terms are defined within the contract. From the whole of the contract and all documents relative thereto, including the bid proposals, it is quite obvious that the intent of Article 13 is an agreement to arbitrate disputes between the “owner” and the “contractor”, the latter being that party to whom the contract was awarded.

This court’s attention is directed to the fact that heretofore, § 435.355.2 has not been judicially interpreted and research discloses it has not. That section is quite clear in its wording and hence its intent. It is the legislative authority to a court of proper jurisdiction to entertain an application of one or more parties to stay a threatened or commenced arbitration proceeding. The application, of course, must be premised upon an allegation that there exists no agreement between the parties to arbitrate. In addition, this statutory section permits the court to resolve a substantial or bona fide dispute over the very issue, that there exists no agreement to arbitrate. The court is authorized to summarily and forthwith try the issue and render its decision upon the evidence submitted by the parties. A “substantial and bona fide” dispute provides a simple and clear requirement before the court can validly entertain such application. A “substantial and bona fide” dispute becomes an issue merely upon the opposing contentions of the parties that an agreement does or does not exist. The court then, in turn, is charged with the responsibility of determining upon the evidence if an agreement does exist. The court’s determination does not and need not consider the validity of the alleged claims or rights under or subject to arbitration, but rather, the court’s participation commences and ends with the determination if there is first any validly existing agreement between the parties to arbitrate. Upon a showing that there exists no such valid agreement, the court may stay threatened or previously commenced arbitration proceedings. Upon a showing that there exists such an agreement, the court merely denies the application for the stay of arbitration proceedings. This is precisely what the court herein did in conformity to § 435.355.2, and the contentions of Midwest that the court rendered its decision upon the merit of Midwest’s claim is not supported by the evidence upon this record. The evidence, in fact, shows that there never was such an agreement between St. Luke’s and Midwest within the wording and intent of § 435.350 or § 435.355.

What Midwest asserts is that it was entitled to the award of the contract because it submitted the lowest bid. That assertion was never before the trial court and is not present before this court. The reason that assertion was never before either court is that § 435.355 (see analysis above) limits the consideration by the trial court, and that limits the review by this court to the sole question or issue which is whether there existed an agreement between the parties to arbitrate. This cause was initiated upon an application to stay arbitration proceedings pursuant to § 435.-355, and the trial court properly disposed of that sole issue.

Another evidentiary note, additional to Midwest’s exclusion as a “contractor” within the terms, definition, and intent of the contract, is the admission by Midwest that it never entered into any written agreement with St. Luke’s for the construction of the flue recovery system.

To further its assertion, Midwest claims that it was a “prequalified” bidder and thus through custom and practice of the industry, Midwest was, because it submitted the lowest bid, either entitled to have the award of the contract or St. Luke’s was required to reject all submitted bids. This assertion fails for three reasons. Contrary to the contention of Midwest, there is no evidence upon the record herein which describes or establishes a custom and practice that the “pre-qualified” bidder submitting the lowest bid must be awarded the contract. Secondly, neither upon this record nor at the time of oral argument before this court was a “pre-qualified bidder” ever clearly defined, and more importantly, it has never been sufficiently established that even if such a status is proven, that in every contract proposal is the so-called “pre-qualified bidder” automatically awarded the contract. What the evidence reveals is that St. Luke’s, due to federal funding, was required to conduct an open bidding for the project. Originally, St. Luke’s merely sought the opportunity to name or select a contractor. In response, St. Luke’s reviewed several area contractors, including Midwest, whom St. Luke’s determined were of “sufficient size to do the job.” Five such contractors were chosen, including Midwest, and invitations for bids were sent to the five contractors.

Returning to the third and final reason that Midwest’s assertion is not founded upon the record, it was the testimony of a witness for St. Luke’s who made the selection for St. Luke’s that based upon some thirty years experience in the industry, the custom and practice permitted rejection of the lowest bidder by the owner.

The evidence, in combination with the testimony of a St. Luke’s representative and the bid invitation documents, fails to support Midwest’s assertion of “pre-qualifi-cation bidders.” The witness merely testified that the five contractors were selected because of “sufficient size” and declined to say that the five were selected because of any qualification. In addition, the bid invitation included a form needing completion on which each bidder was required to submit its qualification regarding ability to promptly handle additional work, skill, facilities, capacity, experience, previous work, and financial standing. It is evident that all bidders, including Midwest, were aware of the fact that St. Luke’s both reserved the right and intended to review the qualifications of the bidders. To conclude otherwise would demand either that the qualification forms were excluded from consideration or that St. Luke’s entered into a superfluous action by requesting its completion. This court cannot ignore that form as it is part of the evidence upon this record. In addition, it would defy logic to conclude that St. Luke’s, by its inclusion in the bid invitation, intended a superfluous act under the particular circumstances herein.

It is equally clear from both the oral and documentary evidence that Midwest knew St. Luke’s reserved the right to reject any bid.

Midwest cites to Taft and Missouri Pacific for the proposal that the trial court herein incorrectly entered its stay order because such stay order allegedly was contrary to § 435.355.5., which reads:

5. An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

Neither Taft nor Missouri Pacific addresses the precise issue herein. Taft was a decision of the United States District Court, Western District of Missouri, which construed § 301 of the 1947 Labor Management Relations Act, 29 U.S.C.A. § 185, and addressed the limit or scope of an arbitration agreement of the parties. It did not address the question of whether there existed a written agreement to arbitrate as prescribed within § 435.350 and § 435.355.

Missouri Pacific was a case from the United States Court of Appeals, Eighth Circuit, which addressed the question of the applicability of the Federal Arbitration Act, 9 U.S.C. § 1, to disputes over track use as between railroad corporations and railroad subsidiaries. The case did not involve consideration or construction of the Uniform Arbitration Act. In addition to that case clearly defining federal policy, it is obvious that the parties in Missouri Pacific had entered into an agreement to arbitrate. The court was asked to determine if the issue was subject to arbitration and if the court could compel arbitration.

As a further note, Builders Association does not aid Midwest. That case, in turn, did not address the question whether there existed an agreement to arbitrate, but rather, the scope of a previously existing agreement to arbitrate.

As a second variation, or point (2), of the charged error, Midwest contends that since the project was partially funded by the federal government (Department of Energy), the project was thus subjected to the regulations of the Department of Energy which established that the bidders v/ere “pre-qualified” and therefore St. Luke’s was required to award the contract to the lowest bidder.

This court is referred to Regulation 9-1.-004(b), 10 CFR I 1-600, 10 CFR § 600.-19(b)(2), OMB Circular A-110 Attachment 0 paragraph 3, and OMB Circular A-110 Attachment 0 paragraph 3(c)(5). Reliance upon the foregoing regulations does not aid Midwest because a review of them does not disclose, contrary to the assertion of Midwest, that an owner must award, and the lowest bidder must receive, the contract in every case. When read in their entirety, the foregoing regulations still allow an owner to select the contractor on the owner’s determination of which bid is most responsive to the invitation for the bid, and in addition to award the contract upon the bid most advantageous to the owner relative to the offer made by the owner.

As a final variation, or point (3), Midwest asserts that the trial court erred because St. Lukes, in fact, entered into a conditional bilateral contract with Midwest. This assertion is based upon what Midwest claims was a limited bid proposal to only pre-quali-fied bidders. Thus, Midwest reasons that an owner, when making bid proposals to “pre-qualified bidders,” enters into a conditional bilateral contract with those bidders conditioned only upon final award and acceptance of the contract. Thus, Midwest further contends Article 13, being a part of these pre-contract proceedings coupled with custom and practice of the industry, bound St. Luke’s to arbitrate. It is Midwest’s contention that “pre-qualified bidders” have otherwise met the criteria prescribed by the owner, and thus only the project price remains for additional consideration between the parties. Midwest then concludes that the owner is thus bound to award the contract to the lowest bidder or the owner must reject all of the bids.

Midwest then opts for an additional position, asserting if the trial court correctly determined there existed no valid conditional bilateral contract, the trial court “should have recognized that at the very least, the doctrine of promissory estoppel required enforcement of St. Luke’s promise to award the contract of the lowest bidder.

There is nothing upon the record herein which supports the assertion by Midwest that St. Luke’s made any offer to any of the contractors, including Midwest, to enter into a bilateral contract, conditional or otherwise. What the record discloses is that St. Luke’s submitted to five contractors, including Midwest, invitations to bid the project. The contractors also knew of the reservations by St. Luke’s to reject any bid. In addition, the invitation for bid included a requisite listing of qualifications from each contractor. The evidence fails to support Midwest’s assertion that it, along with the other bidders, were “pre-qualified bidders.” The invitation for bids from St. Luke’s did not constitute an offer to any of the solicited bidders.

This court is referred by Midwest to Clo-sen and Werland, “The Construction Industry Bidding Cases: Application of Traditional Contract, Promissory Estop-pel, and other Theories to the Relators Between General Contractors and Subcontractors, 13 John Marshall Law Review 565 (1980). While that is a well-done treatise, it is of little application herein because it deals with an entirely different proposal. The article considers bids between contractors and subcontractors and the reliance of the contractor when the bid is in turn submitted to the owner. There neither exists such a relationship between St. Luke’s and Midwest, nor does this case in any manner involve any bid from a subcontractor.

The further contention of Midwest that if nothing else, St. Luke’s was bound to award the contract to Midwest upon the theory of promissory estoppel, can be and is summarily disposed of by declaring there is no evidence upon this record showing any of the elements of the doctrine of promissory estoppel were established. The mere fact that Midwest incurred time and expense in preparation of its bid to St. Luke’s does not establish a claim under the promissory estoppel.

In conclusion, although Midwest has presented a well-articulated argument, its claim must be denied. The determination by the trial court and this court on appeal in the disposition of the appeal rests upon a sole and simple issue, to wit, the existence of any agreement between St. Luke’s and Midwest to arbitrate within the purview and meaning of § 435.350 and § 435.355. In the absence of such an agreement, neither Article 13 nor any other part of the contract nor the bid documents have any relevancy to Midwest’s claim to arbitration. The evidence clearly reveals there never was such an agreement between St. Luke’s and Midwest. Article 13 must be and is hereby construed to apply and bind only St. Luke’s as owner to arbitration in regard to the matters prescribed within that article and the contractor who was awarded the contract. Midwest, as the evidence clearly reveals, does not qualify within Article 13 and hence, its claim of right to arbitration must fail.

As noted, § 435.355 has been construed herein. The trial court, upon the evidence herein, correctly ruled there was no agreement to arbitrate between St. Luke’s and Midwest. In addition, the trial court correctly met its responsibility under and pursuant to § 435.350 and § 435.355.

There is no error and therefore the judgment must be affirmed.

All concur.

      . The arbitration proceedings pend before the American Arbitration Association.

      . However, concerning information on this section, see 46 Mo.L.Rev. 627, 630 (1981) and 30 Journal Mo.Bar 258 (1982).

      . An invitation to submit a bid has been construed not to be an offer. In re Cameo Tile Distributors, Inc., 17 B.R. 28, 29 (B.C.M.D.Fla.1981). It is that view that this court adopts herein.


author: DIXON, Judge.

text:
    John E. WEAVER, Jr., and Mary Weaver, Appellants, v. SHANE’S HEATING AND AIR CONDITIONING CO., INC., and Conrad O. Kruse, Jr., Respondents.
    No. WD 35037.
    Missouri Court of Appeals, Western District.
    Nov. 20, 1984.
    Walter K. Disney, Kansas City, for appellants.

      Joseph A. Sherman, Lisa A. Weixelman, Sherman, Wickens, Lysaught & Speck, P.C., Kansas City, for respondents.
    Before KENNEDY, J.P., and DIXON and CLARK, JJ.
   DIXON, Judge.

John and Mary Weaver appeal the jury’s finding for defendants, employer and employe, in this vehicular collision case. They assert the court erred in (1) submitting contributory negligence instructions because they contend there was no evidence to support the instructions, and (2) entering judgment for both defendants because they claim the verdicts did not dispose of all of the issues. There was sufficient evidence to warrant submission of the contested instructions and, while the verdict forms and verdict directors on which they were patterned were flawed, no prejudice resulted therefrom. Affirmed.

When the issue presented is the sufficiency of the evidence to support the giving of a contributory negligence instruction, all of the evidence and favorable inferences from the evidence are considered to the extent that they support the submission. To the extent that the evidence and inferences do not support the submission, they are ignored. Welch v. Hyatt, 578 S.W.2d 905, 912 (Mo. banc 1979).

The record contains a welter of contradictory testimony on the essential facts of speed and distance. The facts stated in accordance with the standard of review follow.

Defendant, Conrad Kruse, an employe of and driver for defendant Shane’s Heating and Air Conditioning Co., was driving Shane’s one-ton truck with stock racks. From a complete stop, he made a right turn at the intersection of 3rd St. and Locust in Kansas City into the right lane of the northbound A.S.B. Bridge approach. He turned on his blinkers, looked in all of his mirrors and, approximately 25 feet north of the intersection, began to move into the left lane at a speed of 15 mph, reaching a maximum speed of 25 m.p.h. All trucks on the A.S.B. Bridge must use the left lane because of the bridge’s condition. The truck driver testified he never saw any other traffic on the road and never heard a honking horn or squealing brakes. About 105 feet north of the intersection, the truck was hit by an orange Volks wagon microbus driven by plaintiff. Kruse stated that, on impact, it felt as though his truck were being pushed or shoved. The truck came to rest facing slightly southwest. The driver’s door on the truck suffered substantial damage, portions of the truck bed were dented, and there was some paint transference on the stock racks. The mi-crobus was damaged on the right front and side.

Plaintiff Weaver testified at trial (in drastic variance with his deposition testimony) that, as he was northbound in the left lane on the A.S.B. Bridge approach, going 34 mph, he first noticed defendant’s truck about two cars’ lengths (40 feet) ahead of him. Skid marks left by plaintiff measured 19 feet before impact and 18.6 after impact. The scuff marks from the truck’s lateral movement at impact indicated the left side of the truck was 5V2 feet into the left lane. The left side of the truck was over 18 feet from the east curb. There was no evidence that any other northbound traffic was present.

The plaintiffs ignore the rule stated as to review of submissibility after verdict and construct, from bits and pieces of the evidence, a scenario of speeds and distances. Based upon this, they assert that the evidence does not support the contributory negligence submission because it lacks mathematical substantiation. For that proposition, plaintiffs cite Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495 (Mo banc 1948). Assuming, without deciding, that the rule for which plaintiffs contend may be drawn from that authority, the issue may be resolved upon a factual basis.

Plaintiffs’ analysis of the facts is as follows: Plaintiff Weaver left 19 feet of skid marks before impact and 18.6 feet after impact. The distance traveled at 35 mph in ¾ of a second is 37.4 feet. Plaintiffs then deduce that the truck started to enter plaintiffs lane of travel when plaintiff was 56.4 feet from the point of collision. Plaintiffs further deduce that since the skid marks began 89 feet north of the intersection, the plaintiff was 51.6 feet north of the intersection when the truck started to enter his lane. Based on the plaintiffs’ assertion that Weaver was two car lengths behind the truck when it began to turn to the left, plaintiffs further deduce the truck was 80.6 feet north of the intersection when it first entered the left lane. Plaintiffs then conclude that with the stopping distance of 92 feet for a vehicle going 35 miles per hour, the plaintiff could not stop and, therefore, could not slacken or swerve to avoid collision.

This contention ignores evidence in the record which destroys whatever questionable validity it may on the surface present.

The truck driver said he first entered the left lane 25 feet north of the intersection at a speed of 15 miles per hour and he entered the bridge approach from a stopped position, attaining a maximum speed of 20 to 25 miles per hour. The evidence without dispute shows both vehicles were moving, to the point of impact and beyond. The testimony of the truck driver could have been believed by the jury. If so, the plaintiff Weaver would have had almost 6 seconds to react. The plaintiffs’ expert, a police officer, testified that the plaintiff could have stopped, slowed, or swerved if, in fact, the truck began to move across the center line of the lanes at a point 25 feet north of the intersection. That same witness, using the plaintiff’s estimate of speed of 34 miles per hour, as well as the speed he calculated from the skid marks and other physical evidence, placed the plaintiff 286.3 feet from the point of impact when the truck entered the left lane. The police officer also testified that since both vehicles were moving in the same direction, given the differential in speeds, the closure distance was slightly over 13 feet per second. The plaintiff’s testimony was that he was 40 feet, or two car lengths, behind the truck when he saw it move into his lane. Thus, he had over three seconds to avoid the impact. In- the 2¼ seconds after reaction time, his car would have traveled approximately 150 feet, which exceeds his stopping distance by over 50 feet. Thus, there was ample evidence to support all of the submissions on slowing, swerving, and stopping.

On the issue of warning, the truck driver said he heard no warning; but that if one had been given, he could have swerved to his right and avoided the collision. This evidence refutes the plaintiff’s sole claim with respect to the warning submission, that “defendant submitted no evidence that he could have avoided the accident if a warning was sounded.”

Plaintiffs also assert error in that both verdict forms allowed the jury to find for “Plaintiff” (either John or Mary, depending on the verdict form) or for “Defendant Shane’s Heating & Air Conditioning Co., and Conrad 0. Kruse,” employer and employe. On both verdict forms, the jury found the issues for “defendant.” Plaintiffs contend this was not a final judgment because the agency issue was contested and the verdict forms required a finding for plaintiffs or for both defendants.

Deviation from the MAI’s is error, but the court must determine if prejudice arises. Rule 70.02(c). “To reverse a jury verdict on ground of instruction error, it must appear that -the offending instruction misdirected, misled or confused the jury and the burden to prove the proposition rests with the party challenging the instruction.” Essex v. Getty Oil Co., 661 S.W.2d 544, 558 (Mo.App.1983). Here, the evidence was uncontroverted that Kruse was acting as Shane’s agent. The plaintiff is in error in suggesting the issue was contested. As both the evidence and plaintiffs’ theory support a finding of agency, it was not prejudicial error to give verdict forms permitting a finding for “defendant.” Tietjens v. GMC, 418 S.W.2d 75, 87 (Mo.1967). In any event, the forms of verdict were prepared by plaintiffs and they may not predicate error upon instructions submitted by them. Morris v. Klein, 400 S.W.2d 461, 465 (Mo.App.1966).

Affirmed.

All concur.