text:
    Leland V. LAMMERT, et al., Appellants, v. BREMAN BANK & TRUST COMPANY, et al., Respondents.
    No. 48032.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 9, 1984.
    Motion for Rehearing and Transfer Denied Nov. 20, 1984.
    S. Robert Striebel, St. Louis, for appellants.
    Edward E. Murphy, Jr., Garry Seltzer, Clayton, Jules Q. Strong, St. Louis, for respondents.
   CLEMENS, Senior Judge.

Proceeding by defaulting mortgagor-appellants Leland and Nancy Lammert to redeem real estate from defendant-mortgagee’s foreclosure sale.

When borrowers defaulted defendant-lender Bremen Bank foreclosed and bought the mortgaged real estate. Plaintiffs then began this proceeding to redeem the real estate from sale. On defendant bank’s motion the circuit court dismissed plaintiffs’ motion to redeem as inadequate, this for failure to have court approval. Mortgagors have appealed.

At issue here are the three redemption statutes. In essence, with our emphasis, they provide:

Section 443.420 declares redemption is conditioned upon the borrowers’ giving security to the satisfaction of the circuit court for payment of the debt and costs.

Section 443.430 declares how foreclosed borrowers may redeem upon applying to the circuit court within 20 days after the foreclosure sale; but unless the motion and statutory bond are presented to the circuit court for approval within that time “same shall be taken and deemed as finally rejected and disapproved.”

Section 443.440 provides that if the said bond is given and so approved the trustee shall execute and deliver a certificate of purchase in statutory form.

The cited statutes make no provision for appeal from the circuit court.

The crux of this appeal is that the plaintiff-borrowers, although filing their motion to redeem with the court clerk, failed to present their motion to the circuit court, as specified in the statutes cited above.

In State ex rel. Hanks v. Seehorn, 227 Mo.App. 666, 55 S.W.2d 714 [5-6] (1932) the court ruled: “One of the essential requirements was that within 20 days after the foreclosure sale they give security to the satisfaction of the court _” (Our emphasis.)

The most definitive interpretation of the redemption statutes is in Reynolds v. Justice, 228 Mo.App. 246, 66 S.W.2d 169 [1, 2] (1933). Under facts parallel to our case the court upheld the trial court’s dismissal of the borrowers’ motion to redeem for their failure to have court approval. The court concluded those statutes

“express an intent to provide a better safeguard by requiring the judge of the court to finally determine as to approval and not leave that matter of final approval in any event to the clerk alone.”

The Reynolds court ruled that under the redemption statutes there is “no right of appeal from the matter of approving bond”, and dismissed the borrowers’ appeal.

Accordingly, we dismiss plaintiff-borrowers’ appeal.

STEWART, P.J., and CRANDALL, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert L. SHAW, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35703.
    Missouri Court of Appeals, Western District.
    Oct. 30, 1984.
    Joseph H. Locascio, Sp. Public Defender, Mimi Droll, Asst. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before CLARK, P.J., and NUGENT and LOWENSTEIN, JJ.
   ORDER

PER CURIAM.

Appeal from denial of Rule 27.26 motion to vacate sentence and judgment.

Judgment affirmed. Rule 84.16(b).


author: WILLIAM E. TURNAGE, Special Judge.

text:
    R.T. CROW, Plaintiff-Respondent, v. Garland H. BERTRAM, Defendant-Appellant.
    No. 47860.
    Missouri Court of Appeals, Eastern District, Division Eight.
    Nov. 13, 1984.

      Samuel C. Ebling, St. Louis, for defendant-appellant.
    David B. Rogers, Columbia, for plaintiff-respondent.
   WILLIAM E. TURNAGE, Special Judge.

R.T. Crow filed suit against Garland H. Bertram in three counts. The first count was for specific performance of a real estate contract, the second count was in the alternative for damages for breach of the contract, and count three was in the alternative concerning the down payment paid by Crow, and also named Warren G. See, a real estate broker. The trial court entered judgment on all three counts. Crow contends that the judgment is not final and is thus not appealable. Appeal dismissed.

The court entered judgment in favor of Crow and against Bertram on the specific performance count. However, the judgment stated:

[Tjhat because of the lapse of time herein, the exact details of fair and equitable performance of said contract shall, in the first instance, be left to the plaintiff and defendant Bertram to accomplish by agreement on or before the 1st day of December, 1983, by which time the parties are hereby ordered to report back to the Court relative to their compliance with this Order, and should the parties fail to have agreed upon fair and equitable compliance with this Order of Specific Performance, each party is hereby ordered by that date to present to the Court a detailed proposal for compliance with this Order of Specific Performance, and the Court will, on that date, set a hearing to take evidence upon the question of appropriate compliance therewith.

The judgment also disposed of counts two and three.

Crow has filed a motion to dismiss the appeal in which he contends that the trial court’s judgment is not final because it orders the parties to work out the details of specific performance, and requires further court action before the specific performance judgment becomes final.

In order for a judgment to be final and appealable it must dispose of all parties and all issues and leave nothing for the court’s later determination. Gaa v. Edwards, 626 S.W.2d 685, 686[1] (Mo.App.1981).

Here, the trial court’s judgment is not final because its grant of specific performance depends upon the parties’ agreement as to the details of the contract’s performance. The court has indicated only that specific performance will be granted at some future time, and then only when the parties agree on the details of specific performance. If the parties could not reach an agreement, the court would hold another hearing. The trial court’s judgment obviously fails to dispose of all issues and the court has thus not finally disposed of this litigation.

The court indicated in its judgment that it retained jurisdiction of the cause to determine appropriate compliance with the specific performance decree. However, the court stated that notwithstanding its retention of jurisdiction, it denominated the decree as a final judgment for purposes of appeal. This designation is wholly lacking in effect because the trial court cannot make a judgment final which is not, in fact, final. Daniels v. Richardson, 665 S.W.2d 76, 77 (Mo.App.1984).

Bertram contends that the court declared specific performance but failed to specifically identify the performance commanded. He contends that the judgment is final as to the fact of performance, but that the terms and conditions of performance are vague and uncertain. Thus, he argues, the judgment is appealable because it is final but is erroneous because it is vague and indefinite. Bertram is correct that the judgment does not specify the terms and conditions of performance, but leaves those to the parties’ agreement. It is this aspect of the judgment, which leaves the terms and conditions open and subject to future court order, that robs the judgment of the finality required to make the judgment ap-pealable.

This appeal is dismissed.

PUDLOWSKI, P.J., and MELVYN W. WIESMAN, Special Judge, concur.


text:
    BI-STATE DEVELOPMENT AGENCY, Plaintiff-Appellant, v. CITY OF ST. LOUIS & Arthur G. Talbert, Defendants-Respondents.
    No. 48218.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 13, 1984.
    Gary M. Kupferle, St. Louis, for plaintiff-appellant.
    Michael E. Hughes, St. Louis, for defendants-respondents.
   ORDER

PER CURIAM.

The trial court entered judgment on defendant’s counterclaim for damages and against plaintiff on its claim for damages. The judgment is affirmed pursuant to Rule 84.16(b).


author: CRANDALL, Judge.

text:
    Ronald W. NORMAN and Kay O’Brien, Appellants, v. Jerry D. LANDING and Virginia L. Landing, Respondents.
    No. 48138.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 13, 1984.

      Stanley Dale Williams, Union, for appellants.
    John Brian Loveless, St. Clair, for respondents.
   CRANDALL, Judge.

This appeal arises out of an action for conversion. Plaintiffs, Ronald Norman and Kay O’Brien, brought suit against defendants, Jerry and Virginia Landing, for conversion of certain items of personal property. A jury trial was held. At the close of plaintiffs’ case, the court directed a verdict in favor of defendant Jerry Landing. The case then proceeded against defendant Virginia Landing. The jury returned a verdict in favor of Virginia Landing on the claim of Ronald Norman and a verdict against Virginia Landing on the claim of Kay O’Brien in the amount of $5,585. Ronald Norman, Kay O’Brien, and Virginia Landing filed motions for a new trial. Plaintiffs’ motions were timely filed. Virginia Landing’s motion was not timely filed. The trial court granted Virginia Landing’s motion without specifying of record the ground or grounds therefor. Plaintiffs appeal alleging trial court error (1) in sustaining defendant Virginia Landing’s motion for new trial in that the court’s order was presumptively erroneous; (2) in sustaining defendant Jerry Landing’s motion for directed verdict; and (3) in excluding an exhibit from evidence, where the exhibit was offered in an attempt to show a demand for return of property. We reverse and remand in part and affirm in part.

Before considering the substantive issue raised in plaintiff’s O’Brien’s first point, it is necessary to address the issue of the timeliness of Virginia Landing’s motion for new trial. The trial was concluded on October 11, 1983. The record in this case indicates Virginia Landing’s motion for new trial was filed on October 31, 1983. On December 12, 1983, the trial court granted the motion and overruled plaintiffs’ motions for new trial. On appeal, the legal file was supplemented to include a letter from Landing’s counsel dated October 28, 1983, which states that he mailed his motion for new trial to the clerk of the circuit court on October 21, 1983, and which enclosed another copy of his motion. Plaintiff O’Brien does not concede the timely filing of the motion for new trial by defendant, but with commendable candor, acknowledges receipt of her copy of the motion on October 22, 1983. Defendant’s brief does not address this issue.

The act of depositing the motion for a new trial in the mail does not constitute the filing of it. Mirax Chemical Products Corp. v. Tarantola, 268 S.W.2d 71, 73 (Mo.App.1954); State ex rel. Alton R. Co. v. Public Service Commission, 348 Mo. 780, 155 S.W.2d 149 (1941). The motion for new trial here, then, was not timely filed although it allegedly was mailed within the time limit.

The timeliness of defendant’s motion for new trial is critical in this case because of the failure of the trial court to specify the ground or grounds for granting defendant’s motion for new trial as required by Rule 75.01. Where the trial court fails to specify reasons for granting a new trial, its action is presumed erroneous, and we may not presume that the new trial was granted on discretionary grounds. Rule 84.05(b) and Rule 84.05(c). The burden for supporting such action is shifted to the respondent. Rule 84.05(b); Reynolds v. Briarwood Development Co., 662 S.W.2d 905, 906 (Mo.App.1983). “In meeting the burden, respondents are confined to the errors specified in both their motion for new trial and their brief.” (Citations omitted.) Reynolds, 662 S.W.2d at 906.

If a respondent, in this case the defendant, is limited to errors specified in both the motion for new trial and the brief, it follows that the motion for new trial must be timely filed to be legally viable. Rule 78.04 requires that a motion for new trial be filed within fifteen days of the judgment on the jury verdict. The record before us does not meet this requirement. “A motion for new trial filed more than 15 days after the judgment was entered preserves nothing for appellate review.” Esry v. Esry, 628 S.W.2d 700, 703 (Mo.App.1982).

We note that had the motion for new trial been overruled, defendant would have not been able to rely on the motion to preserve any allegations of error since the motion was not timely filed. There is no reason to allow defendant benefit of the untimely filed motion where the new trial was granted. We therefore hold that defendant has failed to overcome the presumption of error on the part of the trial court. In so holding, we do not decide the question of whether the trial court’s action of setting aside the judgment more than thirty days after entry was void. See Rules 81.05(a) and 75.01; Caldwell Paint Manufacturing Co. v. Lebeau, 591 S.W.2d 1 (Mo.App.1979).

Turning to plaintiffs’ remaining two points, no error of law appears. An extended opinion on those points would have no precedential value. The points are therefore denied pursuant to Rule 84.16(b).

The order of the trial court granting defendant Virginia Landing a new trial on the claim of plaintiff Kay O’Brien is reversed and remanded with directions to reinstate the judgment. In all other respects, the judgment of the trial court is affirmed.

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


author: CRIST, Judge.

text:
    COLLECTOR OF REVENUE, Plaintiff/Respondent, v. PARCELS OF LAND, Albert Hendricks and Marcelene Hendricks, Defendants-Intervenors/Appellants.
    No. 48289.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 13, 1984.

      Louis Gilden, St. Louis, for defendants-intervenors/appellants.
    Bernard John Cuddihee, St. Louis, for plaintiff/ respondent.
   CRIST, Judge.

This is an appeal from a judgment determining adequate consideration for property sold at a tax sale under the Municipal Land Reutilization Law. Section 92.700, et seq., RSMo 1978. We affirm.

On July 28, 1983, the trial court heard evidence on the confirmation of the sale of parcel 46-138, a residence previously owned by appellants Albert Hendricks and Marcelene Hendricks, to Geraldine Evans, the purchaser at the land reutilization sale held on June 23, 1983. The purchase price of this sale was $1,425. The trial court confirmed the sale.

Thereafter, Hendricks were granted leave to intervene as defendants. They filed a counterclaim alleging, among other things, inadequacy of consideration. On October 18, 1983, a hearing was held on Hendricks’ counterclaim. The trial court found adequate consideration for the residence to be $2,000. Evans paid $575 to the Sheriff in addition to the $1,425 previously paid by her. The seminal issue on this appeal is whether Evans paid adequate consideration for the residence as required by § 92.840, RSMo 1978.

Hendricks put forth four points relied upon, all of which relate to the weight of the testimony of purchaser Evans’ appraiser. At the confirmation hearing, Evans’ appraiser testified the forced sale value of the residence was $1,100, and $1,425, the amount of the tax lien, was adequate consideration for the residence. At that hearing, Evans’ appraiser also testified he had been inside the residence.

At the hearing on Hendricks’ counterclaim, Hendricks offered the testimony of Evans’ appraiser, their own appraiser and two other witnesses. Evans’ appraiser again testified the residence before sale was worth $1,100, and $1,425 was adequate consideration. He admitted he had looked inside the residence, but was not permitted inside by the occupants of the residence. His original appraisal and his most recent appraisal were made without entry into the residence. But, by looking through a window, considering the location (a crime area), the vacated residences, the neighborhood as a whole, sale of comparable property and by considering the exterior, he was able to estimate the value of the residence. Hendricks’ second appraiser testified the residence was worth about $6,000 at forced sale, with a fair market value of $15,000. The trial court found adequate consideration to be $2,000.

The judgment of the trial court is supported by substantial evidence, and is not against the weight of the evidence. No error of law appears. An extended opinion would have no precedential value.

Judgment affirmed in accord with Rule 84.16(b).

DOWD, P.J., and CRANDALL, J., concur.


author: PER CURIAM:

text:
    Barbara Gwynne SMITH, Appellant, v. Lloyd Benton SMITH, Respondent.
    No. WD 34516.
    Missouri Court of Appeals, Western District.
    Nov. 13, 1984.

      Edward Berg, Columbia, for appellant.
    C. Christy Barton, Jefferson City, for respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   PER CURIAM:

Barbara Smith appeals from a decree dissolving her marriage to Lloyd Benton Smith. The court divided the marital property but refused to divide the marital debts. She appeals requesting that we order the circuit court to divide the marital debts. We affirm the decree as to dissolution but remand with directions to enter a modified dissolution decree dividing the marital debts.

Barbara filed a petition for dissolution of marriage requesting, among other things, that Lloyd be ordered to pay all “jointly incurred” debts. Lloyd’s answer requested the court to divide the marital property but did not mention the debts.

At the dissolution hearing, Barbara testified that she and Lloyd had agreed to divide the debts. Her brief sets forth the agreement of the parties. She has agreed to pay the remaining debts to Sears and J.C. Penney. Lloyd will be responsible for the Montgomery Ward account and the First Crown Finance (Aetna) loan. Each party will be responsible for repaying one half of an other loan with First Crown (Aetna), account number 30011688.

Lloyd does not dispute the agreement. He has waived the right to appear and has not filed a brief.

Section 452.330 R.S.Mo. (Supp.1984) controls the division of marital property by the circuit court in an action for dissolution of marriage. Debts incurred by the parties during the marriage are not marital property. Flach v. Flach, 645 S.W.2d 718, 719 (Mo.App.1982). The circuit court is not required by the statute to divide the marital debts between the parties, and failure to divide the debts does not affect the finality of the dissolution decree. Id. at 719. Nevertheless, when appropriate, the courts should allocate the debts between the parties. In Re Marriage of Smith, 652 S.W.2d 743, 744 (Mo.App.1983). Distribution of the debts may help alleviate future dissension, and the courts have the authority to make a distribution when the parties request it. Id.

The circuit court concluded that “debts not being marital property,” they should not be divided. We disagree. They should be divided in accordance with the agreement of the parties. We affirm the court’s dissolution decree, except that portion in which the court declines to divide the marital debts. We remand with directions to enter a modified dissolution decree ordering that wife pay the remaining balance on the J.C. Penney and Sears accounts and that husband pay the remaining balance on the Montgomery Ward account and one of the First Crown (Aetna) accounts, and that the parties pay equally, in fifty percent shares, the remaining amount on the other First Crown (Aetna) account, account number 30011688.


author: TURNAGE, Chief Judge.

text:
    William KNOPKE, et al., Plaintiffs-Respondents, v. Julian KNOPKE, et al., Defendants-Appellants.
    No. WD 34637.
    Missouri Court of Appeals, Western District.
    Nov. 13, 1984.
    R.W. Miller, Leslie D. Allard, Miller & Bash, Kansas City, for defendants-appellants.
    Duane J. Fox, Burrell, Seigfreid & Bing-ham, Kansas City, George L. Gisler, Lee’s Summit, Arthur H. Stoup, Stoup, Thompson & Wohlner, Kansas City, for plaintiffs-respondents.
    Before TURNAGE, C.J., and MANFORD and LOWENSTEIN, JJ.
   TURNAGE, Chief Judge.

This cause originated with the filing of an application for the dissolution and liquidation of Knopke Brothers, a limited partnership. The first amended petition was in six counts with the first count seeking a winding up of the partnership and an accounting. The remaining five counts included an unlawful conspiracy charge and various derivative actions for damages. Plaintiffs were several limited partners and the trustees of trusts owning an interest in the partnership. Defendants were Julian Knopke, the general partner; and his sons who were limited partners.

Subsequent to filing their petition, the plaintiffs filed a motion for an order to require Julian Knopke to distribute to plaintiffs the sum of $97,042, plus attorneys’ fees and accounting fees. The $97,-042 claim arose from a sale of the partnership equipment to the plaintiffs. The partnership had retained the disputed amount as depreciation on the equipment.

The court entered an order that Julian Knopke distribute $97,042 plus interest to the plaintiffs. The court denied attorneys’ fees and accounting fees. This appeal followed the entry of that order. Appeal dismissed.

Count I of plaintiffs’ first amended petition alleged the existence of Knopke Brothers as a limited partnership. The petition alleged that Julian Knopke as general partner, and his son, Richard Knopke, as a de facto general partner, violated their fiduciary duties. The prayer of Count I was that Knopke Brothers be wound up, dissolved, and liquidated by the court pursuant to § 358.370, RSMo 1978. The remaining counts sought actual and punitive damages against Julian Knopke and his sons for various derelictions of their partnership duties.

Prior to the filing of the motion involved in this appeal, the trial court had not ordered that the partnership be wound up under its direction.

After this suit was instituted, but prior to any court order, the plaintiffs entered into an agreement with Julian Knopke, as general partner, to purchase the partnership equipment at its book value as of January 31, 1980. The plaintiffs were to receive all net income generated by the rental and sale of such equipment after that date.

Arthur Young & Company completed an audit of the partnership books in December of 1980. A dispute thereafter arose as to who should receive the $97,042 of depreciation accrued on the equipment between January 31, 1980, the date the book value was established, and September 12, 1980, the date the parties executed the document that transferred title to the equipment.

As stated previously, the order which is the subject of this appeal followed the plaintiffs’ motion in October of 1981 to compel Julian Knopke to distribute the $97,042 to the plaintiffs. The court heard testimony on this motion, and the evidence concerned only the proper disposition of the $97,042.

The trial court entered its order in January 1983, complete with findings of fact and conclusions of law. The court ordered that the winding up of Knopke Brothers be conducted under the supervision of the court, and that Julian Knopke distribute to the plaintiffs the sum of $97,042, plus interest of $18,378.20. The court denied plaintiffs’ request for attorneys’ fees and accounting fees. The court designated the order as final and appealable.

On this appeal, the parties have not addressed the question of whether or not the order is in fact a final and appealable judgment. Rather, the parties argue the correctness of the trial court’s decision. Nevertheless, it is this court’s duty to determine its jurisdiction even if not questioned by the parties. Mills v. Cameron Mutual Insurance Co., 650 S.W.2d 716, 717[1, 2] (Mo.App.1983).

Rule 81.06 provides that the court may designate a judgment final for purposes of appeal when a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences, or subject matter as the other claims stated or joined in the ease. In Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597 (1953), the court used the word “claim” synonymously with “cause of action.” The court stated: “The judicial unit for an appeal is the final determination of the issues arising from a set of facts involved in the same transaction or occurrence, and not the determination of an individual issue not disposing of the action.” 364 Mo. at 419, 262 S.W.2d at 600[7, 8]. Thus, the separate trial of claims in Rule 81.06 means the separate trial of the cause of action arising out of the same transaction, occurrence, or subject matter as the other claims stated or joined in the action, and does not mean the separate trial of one issue involved in the claim or cause of action.

In this case, Count I sought the winding up of Knopke Brothers, a limited partnership. While the term “winding up” is not defined in either Chapter 358, the Uniform Partnership Law, or Chapter 359, the Uniform Limited Partnership Law, such term was defined in Smith v. Kennebeck, 502 S.W.2d 290, 293[1] (Mo.1973). The court quoted from an Arizona case as follows:

“Winding up” means the administration of the assets for the purpose of terminating the business and discharging the obligations of the partnership to its members.

In Dreifuerst v. Dreifuerst, 90 Wis.2d 566, 280 N.W.2d 385, 338[3, 4] (Wis.App.1979), the court reached the same conclusion:

Winding-up is the process of settling partnership affairs after dissolution. Winding-up is often called liquidation and involves reducing the assets to cash to pay creditors and distribute to partners the value of their respective interests.

The claim or cause of action stated in Count I sought the winding up of Knopke Brothers. Winding up the partnership would involve reducing its assets to cash and paying all its debts. The final judgment would determine the interest of each of the partners, and order the distribution of the respective share to each partner. Short of such a judgment, there can be no final judgment on the claim stated in Count I so long as the court undertakes to wind up the partnership.

Julian Knopke asserts that the court erred in ordering the partnership wound up under court supervision because the partnership had already been wound up. However, there is no evidence in the record to support that contention. The only evidence adduced concerned the depreciation of $97,-042. On remand the parties will have the opportunity to develop the true status of the partnership, and the court will make its finding based on that evidence.

It is apparent that the subject of this appeal involves only one issue concerned with the winding up: whether the $97,042 is to be credited to the plaintiffs or to Julian Knopke, the general partner. The order involved in this appeal certainly does not accomplish the winding up of the partnership.

Further, the trial court’s designation of the judgment as final for the purpose of appeal does not make the order final and appealable. The trial court cannot make a judgment final which is not, in fact, final. Daniels v. Richardson, 665 S.W.2d 76, 77 (Mo.App.1984).

The order appealed from is not final and appealable, therefore, the appeal is dismissed.

All concur.


text:
    MISSOURI FARMERS ASSOCIATION, INC., a Missouri corporation, Plaintiff-Appellant, v. WOLFE BROTHERS FARM, INC., a Missouri corporation, and Charles M. Wolfe, Deborah A. Wolfe, Thomas Wolfe, Jane F. Wolfe, James W. Wolfe, Mabel A. Wolfe, Karl F. Wolfe and Linda Wolfe, Defendants-Respondents.
    No. 13505.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 16, 1984.

      Stanley Brian Cox, Sedalia, for plaintiff-appellant.
    Janice P. Noland, Camdenton, for defendants-respondents.
   PER CURIAM:

Plaintiff M.F.A. filed this action to recover from defendants amounts allegedly owed by the latter on an open account. The petition charged that between March 1, 1977, and April 7, 1982, defendant Wolfe Bros. Farm, Inc., purchased from plaintiff and plaintiff sold and delivered to defendant Wolfe Bros. Farm, Inc., certain merchandise and farm supplies, feed, seed, and/or services, the “fair and reasonable value” of which totalled $65,238.25. In its fourth enumerated averment, plaintiff alleged the individual defendants signed a “Guarantee Agreement and Standard Retail Charge Agreement” on February 22, 1978, whereby they agreed to guarantee payment to plaintiff of any and all accounts of defendant Wolfe Bros. Farm, Inc. and to pay finance charges at certain specified rates.

At trial before a jury, it developed that the “Guarantee Agreement” and “Standard Retail Charge Agreement” were both embodied in a single form document in fact bearing neither of the alleged designations and to which was affixed a small piece of note paper containing signatures of the eight individual defendants. One portion of the main document was headed “Credit Application.” Among the information requested therein was the desired amount of credit (“I hereby apply for credit in the amount of $_”) which had been completed to reflect $15,000.00. Another portion of the document was headed “Credit Agreement” and included various printed terms and conditions of the relationship between creditor and debtor. The first of these terms provided “Second Party guarantees payment to First Party of any and all loans, notes, accounts or advances made to or for the use, account or benefit of the Second Party, whether evidenced by bills payable, open account, notes rediscounted,” etc. The “Credit Agreement” also set forth terms regarding finance charges and the statement that “The Parties mutually agree that this is a continuing agreement, applying to all existing and future transactions between the parties until revoked in writing_” Stapled to the Credit Application and Agreement was a 5" X 5V2" sheet of note paper containing the signatures of all the individual defendants. Above these signatures appeared the typewritten words “ATTACHMENT” and “Personally Guaranteed By: ”.

Allen Holley was manager oí the Warsaw M.F.A. Exchange for the period during which Wolfe Bros. Farm, Inc. allegedly made the account purchases here in question. Mr. Holley testified that the exchange made out sales tickets for products it sold, whether delivered to or picked up by the customer. Both the exchange and the M.F.A. home office in Columbia retained copies of these tickets, which were prepared at the time of purchase. Admitted in evidence were numerous such tickets, made out to reflect purchases on account by Wolfe Bros. Farm, Inc. Most of these purchases were for “feed, probably fertilizer,' seed and health products.”

Mr. Holley also testified regarding the aforementioned Credit Application and Agreement. He stated that, “Since theirs was a corporation, all of the parties of the corporation had to sign. So I pencilled in ‘See Attachment’ or ‘Guaranteed By’ and all of those there were to sign it ... it had to be guaranteed by all of the parties to the corporation.” Mr. Holley later testified that the “it” that “had to be guaranteed” was an “agricultural loan” of $15,000.00 and that this loan was never made.

Examination of the Credit Application and Agreement reveals that Mr. Holley “pencilled in” the words “Personally Guaranteed By” in a space near the bottom of its second page, within the “Agreement” portion of the document, and beneath this heading drew four lines on which the individual defendants were to place their signatures. After Thomas Wolfe signed on the first of these lines, Mr. Holley apparently realized there would not be space enough for the signatures of all eight of the Wolfe family members. He consequently crossed out the “Personally Guaranteed By” heading and the four lines and wrote “See Attachment” above this space. However, Mr. Holley was not present when the eight individual defendants signed the small sheet of note paper now stapled to the Credit Application and Agreement.

William Bennett, retail credit manager for M.F.A. testified that his office sent a letter dated May 15, 1978, to Thomas Wolfe, president of Wolfe Bros. Farm, Inc., advising him that M.F.A. had “taken the liberty” of typing “Attachment” and “Personally Guaranteed By” on the above-mentioned sheet of note paper which the individual defendants had previously signed. The letter further stated, “Should this alter the purpose or intent of these signatures, please advise this office on or before May 22, 1978.” Mr. Bennett testified that his office received no word from defendants concerning the announced addenda.

Mr. Bennett also testified as to the “agricultural loan” for which, according to Mr. Holley, the credit application had been made. He characterized it as “[a]n in-put loan where M.F.A. agrees to provide for a long-term, but financing for no longer — for one year for purchases made through the exchange. They have to be made at the exchange — it is necessary that there is an account prior to the [loan] coming in. The requirement therefore of the ... loan, there is a credit application. The credit application is’ good for the account that exists now. The account that will he.”

In his May 15, 1978 letter to Thomas Wolfe, supra, Mr. Bennett expressed reluctance to extend the loan on previously agreed-upon security terms and proposed that Wolfe Bros. Farm, Inc. execute a new note in lieu of the original. As it happened, no “loan” was ever made. However, Mr. Bennett testified that, while “[t]he loan was not finalized — we finalized a line of credit for the Wolfes at $15,000.” Asked why no loan, as such, was made, Mr. Bennett stated, “They did not finalize the note that we had requested.”

Also testifying was John Sanders, a credit investigator for M.F.A. in charge of handling delinquent accounts from the various M.F.A. exchanges. Through him were introduced into evidence statements of account reflecting all charges to and payments on the account of Wolfe Bros. Farm, Inc., from March, 1977, through August, 1988. These statements were said to constitute a record of all charges indicated on the sales tickets about which Mr. Holley testified. They were compiled on a monthly basis, each statement reflecting a cumulative balance owed as of the end of the particular month. Mr. Sanders testified that, as of April 7,1982, the balance due on the account of Wolfe Bros. Farm, Inc., was $57,283.40 and that this figure included credit for all payments made through that date. Interest on this sum from April 7, 1982, to the trial date was said to have accumulated at “the rate that M.F.A. charges upon their open accounts” and to-talled $8,472.42.

Plaintiff also read into evidence excerpts from the depositions of the eight individual defendants. Each identified his or her own signature on the sheet of note paper marked “Attachment” and “Personally Guaranteed By.” Thomas Wolfe testified that, as keeper of most of the books and records of the corporation, he would go over the monthly statements from M.F.A., taking note of the charges thereon before filing them. Mr. Wolfe could not recall ever complaining to M.F.A. regarding the accuracy or correctness of any of the statements sent from March, 1977, through September, 1983, though he did mention that he inquired about a certain credit M.F.A. had given Wolfe Bros. Farm, Inc., for grain that would not fit in the latter's bin, and that he once pointed out to M.F.A. a sales ticket he believed to be in error to the extent of $184.00. Mr. Wolfe stated that if there had been a complaint to be made, he, as president, would have been the one to make it. He also stated that, as of the June, 1982, statement, Wolfe Bros. Farm, Inc., had made no payment not credited to its account.

At the close of plaintiff’s case, defendants moved for a directed verdict on the ground, inter alia, that, as the credit application was for a loan that was never extended to Wolfe Bros. Farm, Inc., there was no consideration to support the Credit Agreement and it therefore could not stand as a basis for the instant suit. The trial court sustained the motion.

While it is true that plaintiff purported to rely on the “Guarantee Agreement and Standard Retail Charge Agreement” referred to in its petition, the amount allegedly owed by Wolfe Bros. Farm, Inc., was for purchases made on an open account, proof of which purchases was amply supplied by statements of account. Thus, so far as concerns this account claim against the corporate defendant, plaintiffs reliance on the above-noted agreements was superfluous. That those agreements may not have been supported by consideration is irrelevant to the issue of whether Wolfe Bros. Farm, Inc., is indebted to plaintiff on its account. It was therefore improper for the trial court to grant a directed verdict as to plaintiff’s claim against the corporate defendant on the ground that there was no consideration to support the credit agreement and guaranty. Albeit plaintiff itself ought rightly to bear the blame for the trial court’s detour into and preoccupation with the irrelevant, we do not believe this circumstance warrants the extreme “sanction” of a directed verdict. The sustaining of a motion for directed verdict at the close of plaintiff’s evidence is a drastic action which should only be done when all of the plaintiff’s evidence and the reasonable inferences to be drawn therefrom are so strongly against plaintiff that there is no room for reasonable minds to differ. Mercer v. Thornton, 646 S.W.2d 375, 376[2] (Mo.App.1983); Meeks v. Berkbuegler, 632 S.W.2d 24, 26[1] (Mo.App.1982).

In order to hold the individual defendants secondarily liable as guarantors of the corporate account obligation, it was fundamentally necessary for plaintiff to show that the purported guaranty applied to that obligation. This plaintiff failed to do. It is clear from the evidence that the purported guaranty applied to whatever obligation was created by the Credit Agreement. Plaintiff’s own witness, Allen Holley, testified that Thomas Wolfe, on behalf of Wolfe Bros. Farm, Inc., completed the Credit Application and signed the Credit Agreement in order to obtain an “agricultural loan” of $15,000.00. No such loan was ever made. The Credit Agreement therefore failed for want of consideration. As there was no showing that the purported guaranty was to be supported by consideration other than that supporting the principal contract, the guaranty must also be deemed to have failed, as a matter of law. A guaranty is a contract and, like all contracts, must be supported by consideration, either independent of or the same as that supporting the principal contract, provided in the latter case the guaranty is executed contemporaneously with the principal contract. Mercantile Trust Co. v. Carp, 648 S.W.2d 920, 923[5] (Mo.App.1983); Bloom v. Calcaterra, 600 S.W.2d 192, 195[2] (Mo.App.1980).

We acknowledge that plaintiff’s witness, William Bennett, testified that although no $15,000.00 loan was made, a “line of credit” for $15,000 was extended to Wolfe Bros. Farm, Inc. However, extension of a line of credit in lieu of the loan for which the Credit Application was completed was not shown to have been a substitution of consideration to which the individual defendants, as purported guarantors, consented. A guarantor will be released from his undertaking by any material alteration of the original obligation or duty to which the guaranty relates, unless he consents thereto. 38 C.J.S. Guaranty § 72a, p. 1233. We are of the opinion that the trial court did not err in directing a verdict against plaintiff on its guaranty claim against the individual defendants.

We reverse the trial court’s direction of a verdict against the plaintiff on its account claim against the corporate defendant and remand for a new trial of that claim. We affirm the trial court’s direction of a verdict against the plaintiff on its guaranty claim against the individual defendants.

All concur.

      . The petition was styled "Petition on Account and Retail Charge Agreement.”

      . The following exchange took place on defendants’ cross-examination of Mr. Holley:
      "Q Let me ask you also — upon this agreement, what type of explanation did you make to Mr. Wolfe about it? Did you say it was an agricultural loan for $15,000?
      A That is what we filled out, the credit application. That was the reason this one was filled out.
      Q In other words you were going to give him a loan of $15,000, is that correct? A Yes.”
      This subject was further pursued on redirect:
      "Q [F]or what purpose was this application filled out? A At that time their open account was so behind and if we could get an agricultural loan—
      Q What is this? A This is a loan M.F.A. makes for a year for farm supplies, feeds and seeds.
      Q Where do you have to buy those from — M. F.A.? If I wanted to go out and buy some from someone else they wouldn’t loan me money to do it?
      A No, they wouldn’t.
      Q Do you have to have an account with M.F.A. to obtain this loan? A Yes.”

      . Thomas Wolfe also signed the underlying Credit Agreement, as president of Wolfe Bros. Farm, Inc.

      . The letter read, "There was one other problem that should be worked out before the note can be approved. The security taken was 100 acres of corn and 50 acres of milo which, according to your cash flow projections, will be utilized as feed for the dairy herd. Because it appears there will be no grain sold to generate cash, the crops are of very little value as security. However, we do feel that we could proceed with your loan request if the note is rewritten to call for a $5000 payment on June 30, 1978, $5000 due September 1, 1978 and the balance due on December 1, 1978. We are returning the original $15,000 note to Allen Holley to be returned to you."

      . Mr. Sanders stated that this open account interest charge was at “the rate that is upon the credit application.” While it nowhere appears that defendants, corporate or individual, signed a Credit Agreement in or prior to March, 1977 in order to commence their open account purchasing, the statements of account for the period from that date until execution on February 22, 1978, of the Credit Agreement here in question list rates identical to those specified in that agreement.

      . "A guaranty in its technical and legal sense has relation to some other contract or obligation with reference to which it is a collateral undertaking; it is a secondary and not a primary obligation. A guaranty can exist only where there is some principal or substantive liability to which it is collateral; if there is no primary liability on the part of the third person, either express or implied, that is, if there is no debt, default, or miscarriage, present or prospective, there is nothing to guarantee and hence there can be no contract of guaranty.” 38 C.J.S. Guaranty § 2, at p. 1130.


author: MAUS, Judge.

text:
    Robert HOGSHOOTER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 13682.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 19, 1984.
    Mark V. Clark, Columbia, for movant-ap-pellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   MAUS, Judge.

Appellant was convicted of stealing two bulls. As a persistent offender, he was sentenced to imprisonment for 8 years. Appellant’s conviction was affirmed on direct appeal. State v. Hogshooter, 641 S.W.2d 820 (Mo.App.1982). His subsequent Rule 27.26 motion initiated this proceeding. After an evidentiary hearing, that motion was overruled. While his motion alleged additional grounds, the appellant raises but a single point on appeal. He contends the motion court erred in not finding he was denied effective assistance of counsel. He asserts such ineffectiveness because his trial attorney did not adequately attempt to locate, interview and present trial witnesses.

To establish ineffective assistance of counsel, appellant had to show that his attorney’s performance did not conform to the degree of skill, care and diligence required of a reasonably competent attorney under similar circumstances. In addition, the appellant was required to show that he was thereby prejudiced. Strickland v. Washington, — U.S.-, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Witham v. Mabry, 596 F.2d 293 (8th Cir.1979); Seales v. State, 580 S.W.2d 733 (Mo. banc 1979). To establish the alleged ineffective assistance, the appellant had to prove the witnesses could have been located through reasonable investigation; they would have testified if called; and their testimony would have provided a viable defense. Franklin v. State, 655 S.W.2d 561 (Mo.App.1983); Ladd v. State, 621 S.W.2d 543 (Mo.App.1981).

The appellant initially complained of his attorney’s failure to locate and present witnesses R.L. Poindexter, Gary Floyd, Casandra Ward and Bob Lacher. However, the evidence established Poindexter was subpoenaed and appeared at the trial. He was not called because he told the attorney he knew nothing of the incident. Poindex-ter’s written statement to that effect was admitted in evidence.

The appellant told his attorney witness Floyd could be located through Prime, Inc., his employer. However, a return to a subpoena established this was not true. The attorney’s investigation located “another” Gary Floyd on South Pinoak. Nothing in the record indicates this Gary Floyd should have been subpoenaed.

The address supplied by appellant for his girl friend Casandra Ward was Doniphan, Missouri, or southeast Missouri. By diligent effort in contacting several sheriffs, the attorney caused a Casandra Ward at Grandin, Missouri, (near Doniphan) to be subpoenaed. This person subpoenaed was hostile and denied knowing the appellant. The appellant agreed she should be released from the subpoena. The attorney’s further efforts to locate a helpful Casandra Ward were unavailing. The appellant does not suggest where such a person could have been located.

The appellant told his attorney Lacher lived in the second house on the right past Manley's truck stop on North Glenstone. A subpoena to that address was returned non-est. The attorney sought to locate him by an investigator and through the parole officer. He was unsuccessful. The appellant did locate him for the motion hearing. There was no showing where he was at the time of the trial. But, it was immaterial as Lacher knew the appellant socially but denied any knowledge of the incident.

“[A]ll that is required is investigation that is adequate under the circumstances .... ” Pickens v. State, 549 S.W.2d 910, 912 (Mo.App.1977). The trial court found the trial attorney met the required standard by doing all within his power and resources to contact and subpoena the witnesses requested by the appellant. Further, the trial attorney was told the testimony of Floyd and Ward would aid the appellant. He assumed it would. However, the record is devoid of any evidence the testimony of any prospective witness would have established a viable defense. Conjecture or speculation is not sufficient to establish the required prejudice. Aikens v. State, 549 S.W.2d 117 (Mo.App.1977).

The burden of proving ineffective assistance of counsel was upon the appellant. Franklin v. State, supra; Aikens v. State, supra. The record does not establish the appellant’s experienced and able trial attorney rendered any less than skillful and diligent service. It supports the determination of the motion court the appellant had the effective assistance of counsel. Franklin v. State, supra. The judgment is affirmed.

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


author: BROCK, Justice.

text:
    THE PANTRY, INC., Plaintiff-Appellee, v. The CITY OF PIGEON FORGE, Tennessee, et al., Defendants-Appellants.
    Supreme Court of Tennessee, at Knoxville.
    Nov. 5, 1984.
    Gary R. Wade, Sevierville, for defendants-appellants.
    David A. Lufkin, Knoxville (Finkelstein, Kern, Steinberg & Cunningham, Knoxville, of counsel), for plaintiff-appellee.
   OPINION

BROCK, Justice.

The plaintiff applied for a permit to sell beer for off-the-premises consumption in the City of Pigeon Forge, Tennessee, and was denied that permit solely because its proposed location contained only 2,400 sq. ft. of heated, enclosed floor space, whereas, Ordinance No. 281 of the City forbids the issuance of a permit to any applicant whose premises contains less than 3,500 sq. ft. of heated, enclosed floor space. The plaintiff appealed and the Chancery Court held that the requirement of the ordinance that an applicant have 3,500 sq. ft. of heated, enclosed floor space was invalid because arbitrary and capricious; accordingly, the Chancery Court ordered that the permit be granted. We affirm.

The defendant City contends that its ordinance requiring 3,500 sq. ft. of enclosed, heated floor space is a valid enactment authorized by T.C.A., § 57-5-108, which provides:

“(a)(1) All incorporated cities and towns in the state of Tennessee are authorized to pass proper ordinances governing the issuance and revocation of licenses for the storage, sale, manufacture and/or distribution of such beer and/or other beverages as herein prescribed within the corporate limits, providing a board of persons before whom such application shall be made, but the power of such cities to issue licenses shall in no event be greater than the power herein granted to counties, but cities and towns may impose additional restrictions, fixing zones and territories and providing hours of opening and closing and such other rules and regulations as will promote public health, morals and safety as they may by ordinance provide.”

That this enabling statute has been given the broadest possible construction by this Court cannot be doubted. See: Watkins v. Naifeh, Tenn., 635 S.W.2d 104 (1983); Thompson v. City of Harriman, Tenn., 568 S.W.2d 92 (1978). Nevertheless, as the Chancellor held in the instant case, this broad grant of power to the city fathers to regulate the sale of beer may not be exercised in a discriminatory or arbitrary manner. The restrictions and regulations chosen by the City must be such “... as will promote public health, morals, and safety ....” T.C.A., § 57-5-108(a)(l).

The record in this ease fails to disclose that the requirement of 3,500 sq. ft. of enclosed, heated floor space bears" any reasonable relation to the public health, morals and safety of the people of Pigeon Forge; the Chancellor so held, and we agree. See City of Chattanooga v. Tennessee Alc. Bev. Com’n, Tenn., 525 S.W.2d 470 (1975). Nor does the record contain any evidence that would justify a conclusion that the plaintiffs premises which contains 2,400 sq. ft. of heated, enclosed floor space is in any manner not suitable as a location for the sale of beer for consumption off-the-premises or would in any manner be inimical to the public health, morals and safety of the people of Pigeon Forge. This is not to say that a city or town is without power to impose a restriction requiring a reasonable minimum amount of heated, enclosed floor space; we merely hold that the requirement of 3,500 sq. ft. of such space is unreasonable and arbitrary.

The decree of the Chancellor is affirmed and costs are taxed against the appellants.

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


author: KILGARLIN, Justice.

text:
    Sandra SAYRE, Petitioner, v. Dr. Charles MULLINS et al., Respondents.
    No. C-2994.
    Supreme Court of Texas.
    Nov. 21, 1984.
    Walter H. Steele, Dallas, for petitioner.
    Thomas L. Cox, Jr., Dallas, for respondents.
   KILGARLIN, Justice.

We are confronted with the novel proposition of the right of a public employee to be represented by an attorney during grievance proceedings. Sandra Sayre, petitioner, was terminated from her job at Parkland Hospital in Dallas. Following procedures promulgated by her employer, she filed a grievance. She requested that her attorney be allowed to represent her during the various “steps” of the grievance proceedings. Parkland denied the request, and upheld the termination.

Sayre filed suit seeking a judgment declaring that Parkland had acted contrary to law by denying her representation by an attorney. After an agreed statement of facts was filed with the trial court, Parkland and Sayre both filed motions for summary judgment. The trial court granted a summary judgment to all defendants and the court of appeals affirmed that judgment. 666 S.W.2d 332. We reverse the judgments of the courts below and remand this cause to the trial court.

Sayre, a ward clerk at Parkland, was discharged on December 10, 1980 for verbal disrespect toward Dr. Rawson J. Valentine on the previous day. Although the record does not reflect the language allegedly used by Sayre, apparently the incident was related to accusations that another female employee rubbed Dr. Valentine’s back in the doctor’s station. In any event, Sayre vehemently denies making any disrespectful statement to Dr. Valentine.

In May 1979, Parkland had unilaterally adopted a grievance procedure consisting of four appellate steps which allowed an employee to protest any adverse management decision. Sayre timely initiated her grievance. She was denied relief at step one, an appeal to her immediate supervisor, Harold Wright. Sayre next invoked the provisions of step two by serving written notice on Billie Martinets, a Parkland department director. At the step two hearing, Sayre brought with her a Dallas attorney, Viki Livesay, and requested that Ms. Livesay be allowed to represent her in the step two hearing. Both Ms. Martinets and Eileen Beasley, the Parkland Assistant Director of Personnel, rejected the request. Further, Ms. Beasley threatened to have Ms. Livesay physically ejected from Parkland premises. Two days thereafter Sayre was advised by Ms. Martinets that she would not be reinstated.

The following day Sayre sought her step three relief by delivering to Doug Mehling, Patient Care Administrator of Surgery, a written communication in which she again requested reinstatement, coupled with an offer to take a polygraph test. Mehling responded by advising Sayre of the time and place of the step three hearing, and further wrote that should Sayre attempt to have an attorney represent her, the griev-anee procedures would end at step three. Sayre appeared at the step three hearing, held December 24, 1980, and read a statement. Apparently, she did not otherwise participate in the hearing in which she was afforded the personal right to conduct cross-examination of Dr. Valentine. Because of her refusal to otherwise participate, Sayre’s request for a step four hearing was summarily denied by Dr. Mullins, and her termination from employment was upheld.

Parkland’s grievance procedure provides that the aggrieved employee may have any other employee of the Dallas County Hospital District, except the hospital’s attorney, serve as counsel for the employee during the grievance procedure. During argument of this case, Parkland’s attorney conceded he knew of no other district employee who was an attorney. All parties agree that Sayre is a public employee subject to the provisions of Tex.Rev.Civ.Stat.Ann. art. 5154c (law prohibiting collective bargaining or strikes by public employees) because the Dallas County Hospital District is a political subdivision of this state.

Article 5154c was one of nine bills passed by the 50th Legislature in 1947 which were designed to curtail labor organization activities in Texas. In addition to prohibiting collective bargaining by a labor organization for public employees and their right to strike, the law in section six provides:

The provisions of this Act shall not impair the existing right of public employees to present grievances concerning their wages, hours of work, or conditions of work individually or through a representative that does not claim the right to strike.

It is appropriate to note that at no time did attorney Livesay claim the right to strike, and all Parkland officials involved concede she disavowed such right.

The court of appeals, in interpreting article 5154c, conducted a semantics discussion, attempting to distinguish between “representative that does not claim” and “representative who does not claim.” The appellate court concluded that the statute was not intended to cover representation by an individual but provided for group or organizational representation, only. Therefore, that court held that Sayre was properly denied an attorney. The court of appeals opinion does not explicitly say that the organizational representative is to be a labor union or other employee association, but those fellow employees eligible under hospital grievance procedures to represent Sayre realistically would be confined to such groups.

It is significant that before this court Parkland makes no effort to defend the court of appeals holding that “representative” means organizational representative. Parkland restricts its argument to the contention that employees are only entitled to representation when presenting a grievance that affects a category or group of employees as opposed to a grievance that is personal to an employee. Sayre contends that “representative” means any representative, without restriction on the number of employees involved in the grievance or the identity of the representative.

The subject statute’s plain language seems to make it unnecessary to resort to ferreting out legislative intent as to the meaning of “representative.” However, since the court of appeals has resolved this case on the basis of word construction, we will address legislative intent. A recall of the tenor of the times (public concern about labor unrest and strikes) when Texas enacted these nine labor restrictive laws, and a review of the laws’ contents, mandates the conclusion that the individual’s right within labor’s ranks was considered by the legislature to be paramount to the rights of a labor organization. See, e.g., Tex.Rev. Civ.Stat.Ann. art. 5154e (no dues check-off without individual authorization); art. 5207a (no denial of employment on account of membership or nonmembership in a labor organization); art. 5154b (monetary liability of labor unions to an employee adversely affected by illegal picketing); art. 5154d (protection of nonstriking employee from intimidation or insults by picketers); and, art. 7428 (repealed) (labor unions, but not individual employees, subject to the provisions of antitrust laws).

Moreover, the legislature aptly demonstrated in article 5154c that it knew how to say labor organization when it meant labor organization. The term “labor organization” appears four times in the preamble to the act (Act of April 29, 1947, ch. 135, 1947 Tex.Gen.Laws 231) and four times in the statute, itself. The term “representative” appears but once. Had the legislature desired to restrict who could present a grievance for a public employee, it would have been an easy enough matter to once again use the term “labor organization” instead of “representative.” Further, had the legislature intended “representative” to mean “organizational representative,” as was held by the court of appeals, then the words “which does not claim the right to strike” would have been included in the statute. “Which” clearly refers to things or impersonal aggregations of people. Texas Law Review, Manual on Style 2:14:54 (4th ed. 1979).

Although it sometimes becomes necessary, we are unimpressed by this attempt to gleen legislative intent from choice of words, and particularly in this case, the word “that.” True, we have often said “shall” can mean “may,” and vice versa. See, e.g., Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625 (1948); National Surety Corp. v. Ladd, 131 Tex. 295, 115 S.W.2d 600 (1938); and, American Mortgage Corp. v. Samuell, 130 Tex. 107, 108 S.W.2d 193 (1937). But, in determining the meaning of words, such as “that” in the case at bar, “consideration should be given to the entire act, its nature and object, and the consequences that would follow from each construction.” Chisholm v. Bewley Mills, 155 Tex. 400, 403, 287 S.W.2d 943, 945 (1956). Indeed, this whole argument strikes us as repetitive of Humpty Dumpty’s peroration to Alice, “[w]hen I use a word, it means just what I choose it to mean—neither more nor less.”

Other appellate courts have also interpreted the meaning of “representative.” In Dallas Independent School District v. American Federation of State, County and Municipal Employees, Local Union No. 1442, 330 S.W.2d 702, 707 (Tex.Civ.App.—Dallas 1959, writ ref’d n.r.e.), it was said that “ ‘representative’ was used instead of labor union or labor organization so as to afford a wider choice of agency to the public employee.” We agree. While Sandra Sayre had the right to choose a union official as her representative, she was not limited to a labor organization for representation. The right of a public employee under article 5154c to be represented by a union official at a grievance was upheld in Corpus Christi American Federation of Teachers v. Corpus Christi Independent School District, 572 S.W.2d 663 (Tex.1978). We reversed the court of appeals holding which ruled against union representation. Corpus Christi Independent School District v. Corpus Christi American Federation, 564 S.W.2d 477 (Tex.Civ.App.—Corpus Christi 1978). But, we left untouched the statement in the court of appeals opinion that the teacher was entitled-to be represented by an attorney in the presentation of her grievance. Id. at 480. Considering the whole act, we conclude that an attorney may represent a grievant. It is ironic that the hospital seeks to prevent the major profession trained to represent clients from fulfilling its traditional function.

Turning to the argument that an employee is entitled to representation only when he presents a class-action type grievance, we note one of the primary purposes of article 5154c. That purpose was to prohibit. collective bargaining for public employees. Collective bargaining is generally considered to be negotiations between management and unions over terms of work, such as wages, hours of work, and conditions of employment. The legislature could hardly have intended on the one hand to deny collective bargaining, but on the other hand provide that the only grievances to be presented by a representative would be those involving multi-employee concerns about wages, hours of work, or conditions of work. The statute gives the right to public employees “individually” to present grievances. Pursuant to Tex.Rev.Civ.Stat. Ann. art. 10, we give the “ordinary signification” to “individually,” it not being a word of art or word connected with a particular trade or subject matter. A grievance presented individually is one person’s grievance. Moreover, one of the stated purposes in the preamble to what is now article 5451c was “to protect the individual rights of public employees to present grievances.” 1947 Tex.Gen.Laws at 231. It thus follows that we reject the argument that article 5154c, section six, is restricted to group grievances. It is undisputed that termination of employment is a “condition of work.” Fibreboard Paper Products Corp. v. National Labor Relations Board, 379 U.S. 203, 210, 85 S.Ct. 398, 402, 13 L.Ed.2d 233 (1964). Accordingly, Sandra Sayre’s firing was a proper subject for the grievance process.

The grievance procedure of the Dallas County Hospital District is in violation of article 5154c. Persons outside of the district’s employment, and specifically attorneys, cannot be denied the right to represent an aggrieved employee. Therefore, Sandra Sayre’s motion for summary judgment should have been granted.

We reverse the judgments of the courts below and hold that the Dallas County Hospital District and its other defendant employees have violated the provisions of article 5154c. We remand this cause to the trial court for further proceedings.

      . Named as defendants in the suit were Dr. Charles Mullins, Chief Executive Officer of Parkland Hospital; Dallas County Hospital District d/b/a Parkland Memorial Hospital; and, Harold Wright, Billie Martinets, Doug Mehling, and Eileen Beasley, all supervisory personnel at Parkland.

      . Because of our holding in this case it is unnecessary to address the trial court error of rendering judgment for defendants not requesting summary judgment relief. See Teer v. Duddlesten, 664 S.W.2d 702 (Tex.1984). Sayre’s motion for summary judgment sought relief from all six defendants.

      . SB 167, SB 178, SB 269, SB 276, HB 22, HB 23, HB 41, HB 73, and HB 105.

      . The Taft-Hartley Act was also passed by the U.S. Congress in 1947.


author: CAMPBELL, Judge.

text:
    Randle WILKERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 240-84.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 21, 1984.
    Thomas B. Taylor, William J. Eggleston, Houston, for appellant.
    Travis B. Bryan, III, Former Dist. Atty., Bill R. Turner, Dist. Atty. and Todd Jerms-tad, Asst. Dist. Atty., Bryan, Robert Hut-tash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted by a jury of murder pursuant to V.T.C.A. Penal Code Sec. 19.02(a)(1) and punishment was assessed at sixty years confinement in the Texas Department of Corrections. Appeal was taken to the First Court of Appeals sitting in Houston. See 670 S.W.2d 280. The Court of Appeals affirmed the conviction, holding, inter alia, that appellant’s “request for a second shuffle was not authorized under statutory or case law, and the trial court was entitled to conclude that the second shuffle would have unduly prolonged the trial.” Wilkerson v. State, No. 01-82-00615-CR, January 5, 1983 (Motion for Rehearing) (Tex.App.1983). We granted Appellant’s Petition for Discretionary Review in order to determine whether appellant’s motion for a jury shuffle was timely made, and if so, whether the trial court was in error in refusing to grant same. We will reverse.

The record reflects that appellant’s case was called for trial on May 17, 1982, and that both the appellant and the State announced ready for trial. The trial court, after making some preliminary remarks, entertained excuses, disqualifications, and exemptions of prospective jurors in his chambers, the attorneys for the appellant and the State being present. Although not temporally clear from the record, it appears that while the attorneys and the trial judge were in chambers, the court coordinator and the bailiff conducted a shuffle of the panel pursuant to a standing order from the trial judge to shuffle jury panels in “every case.”

The trial judge and the attorneys returned to the courtroom, at which time the panel was seated, in order, according to the shuffle performed by the court coordinator and the bailiff. After the trial judge cheeked the order of the panel, appellant’s attorney requested a shuffle of the panel. The trial judge replied that the panel had already been shuffled pursuant to his sua sponte order and added “I feel there has been a random shuffle and there is a fair order of prospective jurors.”

This Court has held repeatedly in non-capital felony cases that if a defendant invokes the mandatory provisions of Art. 35.11, V.A.C.C.P., he is entitled as a matter of law to have the names of those persons assigned to and seated in the courtroom, where his case will be heard, shuffled. Refusal of the trial judge to comply with such a request is reversible error, and no harm need be demonstrated by an aggrieved defendant. See Latham v. State, 656 S.W.2d 478 (Tex.Cr.App.1983), and the cases cited on page 479. Stark v. State, 657 S.W.2d 115 (Tex.Cr.App.1983); Smith v. State, 648 S.W.2d 695 (Tex.Cr.App.1983) and Hall v. State, 661 S.W.2d 113 (Tex.Cr.App.1983).

The State contends that the appellant’s motion was untimely, arguing that voir dire had already commenced and was in progress at the time the motion to shuffle was made. In support of its argument, the State contends that the trial judge was in the process of verbally seating the jury panel and was acting on statutory exemptions and disqualifications, before any motion to shuffle was made by the appellant. The record bears this out, and the record further establishes that appellant made his motion immediately (emphasis added) after the trial judge concluded seating the panel.

The thrust of the State’s argument is that the very action of the judge in verbally addressing the jury panel pursuant to disposing of their exemptions and disqualifications and in the seating of their number, constituted a phase of the voir dire, thereby rendering appellant’s motion to shuffle untimely. See Latham v. State, supra.

This contention was decided adversely to the State in this Court’s recent opinion in Yanez v. State, 677 S.W.2d 62 (Tex.Cr.App.1984). In Yanez v. State, supra, this Court held:

“For purposes of Art. 35.11, supra, we hold that the voir dire examination of the jury panel does not commence until all of the members of the jury panel have been shown to be qualified to serve as jurors in the cause and are seated in the courtroom. After it has been determined by the trial judge which persons will make up the jury panel from which will come the jury that will hear the case, and those persons have been seated in the courtroom, if the accused person then makes a motion, either orally or in writing, for a shuffle of the names of the members of the jury panel, such motion will be deemed to have been timely made.” (emphasis added.) at pg- 69.

Lastly, the State argues that the trial court, through its bailiff and court coordinator, shuffled the juror information forms after prospective jurors were released for reasons of qualifications, exemptions and excuses, and contends, in effect, that Art. 35.11, supra, does not prohibit a trial court from shuffling a jury panel sua sponte. Indeed, nothing in Art. 35.11 expressly prohibits such a sua sponte shuffling, but to hold that such a procedure should foreclose the State or a defendant from exercising this right would thwart the very intent behind the passage of the statute. We expressly hold that a sua sponte shuffle of a jury panel by the trial judge or persons operating at his direction does not foreclose the right of the State and the defendant to a shuffle that is timely requested under Yanez v. State, supra.

We find that the appellant in the instant case made a timely request for a shuffle under Art. 35.11, supra, and that the request was improperly denied.

The judgments of the court of appeals and trial court are reversed, and the cause is remanded for a new trial.


author: THOMAS G. DAVIS, Judge. TEAGUE, Judge,

text:
    James Morris McGEE, Appellant, v. The STATE of Texas, Appellee.
    No. 393-84.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 21, 1984.
    Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., and Donald G. Davis, N. R. Stevenson and Jane Jackson, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

Appellant was convicted by a jury of the offense of forgery by passing and the jury assessed punishment at ten years in the Texas Department of Corrections.

In his appeal to the court below, appellant contended that, since he received nothing of value in exchange for the instrument, it cannot be said that he “passed” that instrument. The Court of Appeals, relying on Landry v. State, 583 S.W.2d 620 (Tex.Cr.App.1979) (opinion on original submission), held that “pass,” as used in the statute, means to offer. On rehearing, Landry, supra, was reversed due to a fundamentally defective charging instrument, and only for that reason.

We reaffirm the holding in Landry, supra, on original submission, i.e., that, for Section 32.21(a)(1)(B), Vernon’s Ann.P.C., purposes, the word “pass” means to offer the instrument and does not require a showing that the defendant actually received consideration in exchange for the instrument.

Appellant’s Petition for Discretionary Review is refused.

TEAGUE, Judge,

concurring.

For purposes of the forgery statute, see V.T.C.A., Penal Code, Section 32.21(a)(1)(B), what does the word “pass” mean? The word “pass” is not defined in the Penal Code.

Although I am unable to agree with the majority that the ordinary meaning that is given the word “pass” is the same as that given to the phrase “to offer,” I am, nevertheless, compelled to agree with the result the majority reaches solely and only because of the way the forgery statute was drafted.

As proscribed by Section 32.21 of the Penal Code, a person may commit the offense of forgery by various ways. One of the ways is passing a written instrument or document to another knowing that such was not authorized.

In this instance, the evidence is undisputed that appellant unsuccessfully attempted to obtain $261.50 in exchange for what was later determined to be a forged money order. Appellant’s efforts were thwarted because the person to whom he gave the money order became suspicious and left her counter to determine whether her suspicions were justified. When the cashier left her counter, appellant left the establishment where he had attempted to cash the forged money order. Thereafter, appellant was tried and convicted on an indictment that charged him with “passing” a forged writing to another person. The Dallas Court of Appeals, relying upon this Court’s decision of Landry v. State, 583 S.W.2d 620 (Tex.Cr.App.1979), (On Original Submission), affirmed. See McGee v. State, 667 S.W.2d 295 (Tex.App.—Dallas 1984).

When first confronted with the issue of what the word “pass” means under our forgery statute, a panel of this Court held in Landry v. State, supra, on original submission, that the word “ ‘pass’ in the forgery statute means to offer the forged instrument, and it does not require a showing that the defendant actually received consideration in exchange for the cheek.” [My Emphasis.] In so holding, I believe the panel correctly resolved the issue, but did so for the wrong reasons.

Although it is true that the present forgery statute does not, as its predecessor did, make a distinction between passing and attempting to pass a forged instrument, I am unable to find any authority that supports the strained and erroneous construction this Court’s panel placed on the word “pass” in Landry v. State, supra. To reach what appears to have been the desired result, the panel reasoned that the word “pass” means the same thing as the word “utter” does. And there lies what is wrong with the panel opinion, because the average person does not give the terms the same meaning.

The common meaning given to the word “utter” is to put or send into circulation a written instrument. Thus, “to utter” a forged instrument is simply to offer same to another on the premise that it represents a good, valid, and genuine instrument, when in fact it is not. Therefore, “to utter” a forged instrument is merely to present same to another knowing that it was a forgery.

Under the present forgery statute, a person commits the offense of forgery when he issues, transfers, registers the transfer of, passes, or publishes a writing, or otherwise utters a writing that is forged knowing that it was forged. Thus, the Legislature has implicitly defined the word “pass” to mean the same thing as the phrase “to utter” does. However, but for what the Legislature saw fit to do, I would apply to the word “pass” what I believe is the ordinary meaning that is given the word, namely, that in the instance where one presents to another an instrument in writing with the intent to obtain something of value in exchange for the instrument, the instrument is not deemed to have been passed until the transaction has been completed, i.e., until the person who presented the document has received in exchange that for which the instrument was presented.

Of course, it would have been a very simple thing for the Legislature to have simply stated that the offense of forgery may be committed when a person “utters a writing that is forged within the meaning of Paragraph (A) of this subdivision ...,” and then defined the word “utters” to mean “to offer.”

Nevertheless, the trial court correctly advised the jury that “The word ‘pass,’ when used in connection with negotiable instruments, means to deliver, to circulate, to hand from one person to another.”

For the above reasons, I concur in the result the majority reaches.


author: McCORMICK, Judge.

text:
    Ex parte R.L. JEFFERSON, Jr.
    No. 69089.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 21, 1984.
    Rehearing Denied Dec. 19, 1984.
    Robert G. Brame, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

McCORMICK, Judge.

This is an application for writ of habeas corpus. The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars prosecution for the crime of theft of a pickup truck following a conviction for the offense of unauthorized use of the same vehicle. Applicant alleges that on April 12, 1982, he was convicted in Cause No. 346581 in the 177th Judicial District Court of Harris County for the offense of unauthorized use of a motor vehicle, namely a pickup truck owned by Tom Rogers. On June 24, 1982, he was convicted in Cause Number F81-33294-LU in the 291st Judicial District Court of Dallas County for the offense of theft over $200, the subject of the theft being the same pickup truck.

In findings of facts and conclusions of law, the trial judge in this case reviewed applicant’s application without holding any type of evidentiary hearing and found the application to be without merit in that the applicant had furnished insufficient facts upon which to make an adjudication of his claim. After receiving the application for writ of habeas corpus and the trial judge’s findings of fact and conclusions of law, this Court entered an order abating the application and ordering the trial court to further develop the underlying facts and, in turn, file additional findings of fact and conclusions of law.

This Court has now received the trial court’s supplemental findings of fact and conclusions of law wherein the trial court noted that it had conducted a lengthy evi-dentiary investigation and had come to the conclusion that relief should be granted. Attached to the trial court’s findings is an affidavit from the Dallas County district attorney’s office setting out that the theft charges in Dallas related to the theft of a pickup belonging to Tom Rogers of Dallas County on November 13, 1981, and applicant was arrested in Houston, Harris County, on December 12, 1981, for driving the same truck previously stolen from Tom Rogers in Dallas County.

This Court, of course, is not bound by the findings of the trial judge in Article 11.07, Y.A.C.C.P., matters, but the trial court’s findings are considered if supported by the record. Ex parte Hurd, 613 S.W.2d 742 (Tex.Cr.App.1981). In this case we believe they have merit.

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court enunciated the proper test to be used in determining whether there is more than one offense:

“The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” 284 U.S. at 304, 52 S.Ct. at 182.

Applying the Blockburger test to a situation very similar to the one in the case at bar, the United States Supreme Court, in Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), held that the double jeopardy clause prohibited prosecution for the offense of joy-riding and theft under the Ohio statutes where the charges focused on different parts of a nine-day joy ride:

“Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by the court, constitute ‘the same statutory offense’ within the meaning of the Double Jeopardy Clause — App. 23. For it is clearly not the case that ‘each [statute] requires proof of a fact which the other does not.’ 284 U.S. at 304, 52 S.Ct.; at 182. As is invariably true of a greater and lesser included offense, the lesser offense — joyriding—requires no proof beyond that which is required for conviction of the greater — auto theft. The greater offense is therefore by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.” 432 U.S. at 168, 97 S.Ct. at 2226.
“The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.” 432 U.S. at 169, 97 S.Ct. at 2227.

In Neely v. State, 571 S.W.2d 926 (Tex.Cr.App.1978), this Court held under the Texas statutory scheme the offense of unauthorized use of a motor vehicle is a lesser included offense of theft. Thus, under the reasoning of Brown v. Ohio, supra, applicant could not rightfully be convicted for both the theft and the unauthorized use of Tom Rogers’ pickup truck.

The relief prayed for is granted and applicant’s conviction in Cause No. F81-33294-LU in the 291st Judicial District Court of Dallas County is set aside and the indictment is ordered dismissed.


text:
    Josie PAEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 1105-83.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 5, 1984.

      George Scharmen, San Antonio, for appellant.
    Sam D. Millsap, Jr., Dist. Atty. and Edward P. Shaughnessy, III, Asst. Dist. Atty., San Antonio, Robert Huttash, State’s Atty. and Alfred Walker, First Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted for the murder of her husband pursuant to V.T.C.A. Penal Code, Sec. 19.02(a)(1) and was sentenced to ten years confinement in the Texas Department of Corrections, probated. She was tried jointly with her co-defendant, Amelia Bazar Pena. The Fort Worth Court of Appeals, pursuant to a transfer under Tex. Rev.Civ.Stat.Ann. art. 1738 (Vernon Supp. 1984), reversed her conviction in an unpublished opinion. Paez v. State (Tex.App.—Ft. Worth, No. 2-83-263-CR, delivered November 9,1983).

We granted the State’s Petition for Discretionary Review to determine whether the Court of Appeals erred in holding that Art. 38.22, V.A.C.C.P. required the exclusion of oral statements made by appellant, while in custody, to a child placement worker for the Texas Department of Human Resources. We reverse.

During a lengthy trial, there was much conflicting testimony concerning the manner in which the deceased was shot. Appellant was wounded during the scuffle in which her husband (the deceased) was shot to death by co-defendant Pena. She was taken to Robert B. Green Hospital in San Antonio for treatment. After appellant testified at trial, the State introduced testimony from Patricia Vera, a child placement worker with the Texas Department of Human Resources. Vera worked in protective services dealing with child abuse and child neglect. She had been working with appellant and her children for the five month period immediately prior to the death of appellant’s husband. Vera testified to the contents of a conversation she had with appellant while appellant was in the hospital for treatment.

Vera testified that at the time of the conversation in question, appellant had been arrested and was in custody; there were two uniformed policewomen in the same hospital room with Vera and appellant, and the hospital room was, in effect, a security room. Vera stated that she went to the hospital because appellant was her client. Vera was concerned about the location of appellant’s children and whether they had a place to stay. In response to a question from appellant’s trial counsel as to whether she had given appellant the “statutory warning” before speaking with her, Vera replied: “Yes, yes, I’m trying to recall because I think we did touch that issue.”

The admissibility of Vera’s testimony is governed by Art. 38.22, V.A.C.C.P. At the time of the conversation in question in August, 1979, Art. 38.22 V.A.C.C.P., Sec. 3, allowed an oral statement made as a result of custodial interrogation to be used for impeachment purposes only, and then only if six prerequisites were met. See Alfaro v. State, 638 S.W.2d 891 (Tex.Cr.App.1982). However, since August 29, 1977, the pertinent portions of Art. 38.22 have not excluded from admission into evidence all oral statements made by an accused while in custody. Sec. 5 provides: “Nothing in this article precludes the admission of a statement ... that does not stem from custodial interrogation ....” Thus, as the Court of Appeals correctly discerned, the dispositive issue in this case is whether appellant’s statements “stemmed from custodial interrogation,” since it is undisputed that the State failed to comply with the requirements of Sec. 3.

In Ancira v. State, 516 S.W.2d 924 (Tex.Cr.App.1974), this Court wrote:

“We find it difficult to formulate a general rule to distinguish custodial interrogation from non-custodial interrogation. A case by case approach in which the evidence is viewed in the light of Miranda and subsequent decisions is necessary.”

Id. at 927 [footnote added.] Miranda defines custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966). Accord, Newberry v. State, 552 S.W.2d 457, 461 (Tex.Cr.App.1977).

In Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297, 306 (1980), the Supreme Court rejected the notion “that the Miranda rules were to apply only to those police interrogation practices that involve express questioning of a defendant while in custody.” The Supreme Court held instead:

“Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Id. at 300-301, 100 S.Ct. 1689-1690, 64 L.Ed.2d 307, 308. [footnotes omitted] [emphasis added.]

The Court of Appeals relied on this Court’s decision in McCrory v. State, 643 S.W.2d 725 (Tex.Cr.App.1982), in holding that appellant's statements to Vera stemmed from custodial interrogation.

In McCrory, supra, a majority of this Court held that the oral statement in question was the result of custodial interrogation since the record as a whole clearly established that the defendant’s statement “ ‘resulted from a calculated practice ’ which all agents of the State present knew was ‘reasonably likely to evoke an incriminating response’ from him.” 643 S.W.2d at 734 [emphasis in original.]

As the Court of Appeals correctly recognized, Vera’s employment with the Department of Human Resources, while making her an agent of the “State ”, does not automatically make her an agent of the “State ”, as we used that term in McCrory, meaning law enforcement and prosecution personnel. Rhode Island v. Innis, supra, makes it clear that the term “custodial interrogation” encompasses only police practices. The police practice established in McCrory was the use of non-law enforcement personnel to accomplish what the police could not have lawfully accomplished themselves. The record in McCrory revealed a plan on the part of the police to use Dr. Holbrook as a police instrumentality in the interrogation of McCrory so that the statements made to Dr. Holbrook were as though made to the police themselves. As the Court of Appeals correctly discerned, a state employee must be acting as an agent of law enforcement pursuant to a police practice before the safeguards attendant to custodial interrogation come into play. Only under those circumstances do non-law enforcement personnel become agents of the State for purposes of distinguishing custodial interrogation from noncustodial interrogation.

In the case sub judice, the Court of Appeals erred in its application of the law to the facts as they appear in the record. The record in this case is not well developed as to what took place inside the hospital room. Vera testified that she went to the hospital to see a client concerning the wellbeing of the client’s children. The record is silent as to whether Vera had any discussion with the police officers in the room either before or after her conversation with appellant. We do not have the benefit of any testimony concerning the transaction in the hospital room from either the policewomen or the appellant. The record is also silent on how the shooting of appellant’s husband came into the conversation between Vera and appellant. We can only wonder whether it was because Vera deliberately elicited the information or because appellant volunteered the information.

The Court of Appeals found that Vera was acting as an agent of the “State” based on the following:

“Q. [by Defense Counsel]: Before you talked with Josie Paez, did you give her any kind of warning? Did you tell her, you know, the statutory warning?
“A. [by Vera]: Yes, yes, I’m trying to recall because I think we did touch that issue.
“Q. You don’t know what the warning is?
“A. Yes.
“Q. Could you recite it to me?
“A. No, I can’t.
“Q. You don’t know it and, needless to say, you couldn’t have given it verbatim?
“A. Right.”

The Court of Appeals found from these answers that Vera had actually attempted to give appellant the statutory warnings required by Art. 38.22, V.A.C.C.P. and that the only inference that could be drawn from her having so attempted was that she was in fact interrogating appellant on behalf of the onlooking police officers. We disagree.

Assuming arguendo that Vera’s answers establish that she did actually attempt to give appellant the statutory warnings, the court of appeals erred in inferring that her having done so established that she was acting as an agent of the “State”. Two other inferences strike us as being at least as reasonable as the one drawn by the court of appeals. Firstly, the police would not have wanted Vera to give appellant the statutory warnings if Vera was acting pursuant to a police plan, because appellant would have been more likely to invoke her rights were she informed of them. Secondly, if the police, who were in the hospital room, did want Vera to give appellant the statutory warnings, it seems reasonable to us to assume that they would have done so themselves or at least that they would have made sure that Vera did so correctly. Both of these inferences militate against the inference drawn by the court of appeals; all three involve more speculation than appellate courts should undertake.

Viewing the totality of the circumstances, as well as what was not developed in the record, we are unable to say that the record as a whole establishes that appellant’s statements to Vera were “the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. at 303, 100 S.Ct. at 1691, 64 L.Ed.2d at 309. [footnote omitted.] Since appellant’s statements to Vera did not stem from custodial interrogation, Art. 38.22, supra, did not require their exclusion and the trial court did not err in admitting them.

The judgment of the Fort Worth Court of Appeals is reversed, and the cause is remanded to that court for consideration of appellant’s other grounds of error.

ONION, P.J., and CLINTON, TEAGUE and MILLER, JJ., dissent.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      . Since it was not raised by appellant at trial or on appeal, we leave for another day the applicability of the Texas exclusionary rule, Art. 38.23, V.A.C.C.P., to situations involving statements by an accused made to laypersons acting as agents of the "State."