text:
    Ellis ALDRIDGE, Appellant, v. Marshall YOUNG and Tolbert Yater III, Appellees.
    No. 2-84-212-CV.
    Court of Appeals of Texas, Fort Worth.
    May 16, 1985.

      John T. Chidgey and Walter E. Steimel, Fort Worth, for appellant.
    Cantey, Hanger, Gooch, Munn & Collins, and Jack C. Wessler and J. Robert Forshey, Fort Worth, for appellees.
   OPINION

HILL, Justice.

In this suit for declaratory judgment, Ellis Aldridge appeals from a summary judgment declaring that the leases under which he had occupied his business premises had terminated and were not presently valid and enforceable, and denying him any recovery in his countersuit for damages, for specific performance of the leases and possession of the premises subject to the leases. He urges in his sole point of error that the trial court erred in granting the summary judgment since the lease agreements in question are valid and enforceable.

We reverse and remand, because we find that the summary judgment evidence failed to establish as a matter of law that the lease agreements in question are invalid and unenforceable.

In a summary judgment case, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises a fact issue with reference to the essential elements of a cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the-plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). See also TEX.R.CIV.P. 166-A. The burden of proof is on the movant and all doubts as to the existence of a genuine issue of material fact are resolved against him. All conflicts in the evidence are disregarded and the evidence which tends to support the position of the party opposing the motion is accepted as true. Farley v. Prudential Insurance Co., 480 S.W.2d 176, 178 (Tex.1972); Goodwin v. Texas General Indemnity Co., 657 S.W.2d 156, 159-60 (Tex.App.—Houston [1st Dist.] 1983, writ ref'd n.r.e.).

The provisions of TEX.R.CIV.P. 166-A are applicable both to plaintiffs and defendants who move for summary judgment. The judgment sought should be granted, and if granted should be affirmed, only if the summary judgment record establishes the movant’s right thereto as a matter of law. Gibbs, 450 S.W.2d at 828. The movant establishes his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979).

Aldridge leased the premises in question under two written leases between himself and the owners of the Thannisch Building, where the premises are located. The first lease was executed in June, 1974, and the second in December, 1974. These leases were for a five-year term ending May 31, 1979. Addendum Three of both leases provided for renegotiation of the leases within fifteen (15) days or before the 16th day of May, 1979, and further provided a formula for increasing rent after the expiration of the lease.

These original leases each contained three addenda. The June, 1974 lease contained the following addenda:

ADDENDA TO AGREEMENT OF LEASE BETWEEN THE OWNERS OF THE THANNISCH BUILDING AND ELLIS ALDRIDGE
ADDENDUM ONE:
That the Lessee shall be responsible for any willful or unwillful abuse or damage to the fire sprinkler system except that caused by fire; otherwise, the Lessor is responsible for the maintenance of the fire sprinkler system and building roof to keep each in the proper protective order.
ADDENDUM TWO:
a. That the Lessor will purchase customary standard fire insurance protection on the building structure.
b. That the Lessor shall not be liable to Lessee or to Lessee’s employees, patrons, or visitors for damage to person or property caused by fire, water, or acts of God.
ADDENDUM THREE:
a. The lease shall be renegotiated within fifteen (15) days or before the 16th day of May A.D. 1979.
b. The Lessor has option to increase lease rate up to but not to exceed thirty percent (30%) of base rate of last year of expiring lease, the base rate being three thousand and no dollars ($3,000.00).

The December, 1974, lease contained the following addenda:

ADDENDA TO AGREEMENT OF LEASE BETWEEN THE OWNERS OF THE THANNISCH BUILDING AND ELLIS E. ALDRIDGE: RE: 2454 N. MAIN STREET
ADDENDUM ONE:
A. That the Lessee shall be responsible for any willful or unwillful abuse or damage to the fire sprinkler system except that caused by fire; otherwise, the Lessor is responsible for the maintenance of the fire sprinkler system and building roof to keep each in the proper protective order.
B. The Lessee shall paint the walls and ceiling, repair or replace the ceiling lighting fixtures, install sanitary and serviceable toilet and lavatory, and replace front door screening and broken glass window panes with in [sic] sixty (60) days of the beginning date of lease term.
ADDENDUM TWO:
A. That the Lessor will purchase customary standard fire insurance protection on the building structure.
B. That the Lessor shall not be liable to Lessee or to Lessee’s employees, patrons, or visitors for damage to person or property caused by fire, water, or acts of God.
ADDENDUM THREE:
A. The lease shall be renegotiated within fifteen (15) days before the expiration date or before the 17th day of November A.D.1979.
B. The Lessor has the option to increase lease rate up to but not to exceed thirty (30) percent of base rate of last year of expiring lease, the base rate being nine hundred sixty and no dollars ($960.00).

In 1976, Aldridge and the Thannisch owners entered into subsequent addenda to the two leases. The 1976 addenda to the June, 1974 lease are as follows:

ADENDA [sic] TO AGREEMENT OF LEASE BETWEEN THE OWNERS OF THE THANNISCH BUILDING AND ELLIS E. ALDRIDGE RE: 105 AND 107 EAST EXCHANGE AVENUE
ADDENDUM ONE:
A. That the Lessee shall be responsible for any willful or unwillful abuse or damage to the fire sprinkler system except that caused by fire; otherwise, the Lessor is responsible for the maintenance of the fire sprinkler system and building roof to keep each in the proper protective order.
B. That the Lessee will make the following modifications before the 31st day of May, A.D.1979: The remodeling will cost an estimated $18,000.00:
1. Rental space 107 E. Exchange is to be remodeled for retail outlet, showroom, and office. The walls are to be paneled and floors refinished or recovered in the decor selected by the Lessee.
2. Rental space 105 E. Exchange is to be converted into a hat finishing area.
3. Doors are to be made in the walls separating 105 and 107 E. Exchange,
107 E. Exchange and 2452 N. Main, and 2452 and 2454 N. Main.
4. The existing door at back of 105 E. Exchange will be widened.
5. On completion of remodeling, proof of cost shall be furnished lessor.
ADDENDUM TWO:
A. That the Lessor will purchase customary standard fire insurance protection on the building structure.
B. That the Lessor shall not be liable to Lessee or to Lessee’s employees, patrons, or visitors for damage to person or property caused by fire, water, or acts of God.
ADDENDUM THREE:
A. The lease shall be renegotiated within fifteen (15) days or before the 16th day of May A.D.1994.
B. The Lessee has the option to extend this lease for an additional ten (10) years making a total of Twenty (20) years option. This additional option of ten (10) years may be exercised only if modifications in Addendum One B have been accomplished.
These adenda [sic] supersede adenda [sic] dated 1st day of June, A.D.1974.

The 1976 addenda to the December, 1974 lease are as follows:

ADDENDA TO AGREEMENT OF LEASE BETWEEN THE OWNERS OF THE THANNISCH BUILDING AND ELLIS E. ALDRIDGE: RE: 2454 N. MAIN STREET
ADDENDUM ONE:
A. That the Lessee shall be responsible for any willful or unwillful abuse or damage to the fire sprinkler system except that caused by fire; otherwise, the Lessor is responsible for the maintenance of the fire sprinkler system and building roof to keep each in the proper protective order.
B. The lessee shall paint the walls and ceiling, repair or replace the ceiling lighting fixtures, install sanitary and serviceable toilet and lavatory, and replace front door screening and broken glass window panes within sixty (60) days of the beginning date of lease term.
ADDENDUM TWO:
A. That the Lessor will purchase customary standard fire insurance protection on the building structure.
B. That the Lessor shall not be liable to Lessee or to Lessee’s employees, patrons, or visitors for damage to person or property caused by fire, water, or act of God.
ADDENDUM THREE:
A. The lease shall be renegotiated within fifteen (15) days before the expiration date or before the 17th day of November, A.D.1994.
B. The lessee has the option to extend this lease for an additional fifteen (15) years.
These addenda supersede addenda dated the 1st day of December, A.D.1974.

Originally the Thannisch owners brought suit, after the expiration of the primary term of the two leases, and sought a declaratory judgment that the leases were invalid and unenforceable. Aldridge coun-tersued for specific performance, damages and possession of the premises. Owners obtained a summary judgment in their favor on April 22, 1982, while Aldridge’s motion for summary judgment was denied. After the trial court had granted the motion for summary judgment, the Thannisch owners conveyed the property to Tolbert F. Yater III and J. Marshall Young, the appel-lees herein. On March 1, 1984, this court reversed the summary judgment which had been granted in favor of the Thannisch owners. Upon remand, Yater and Young intervened, seeking the same relief as had the Thannisch owners. Aldridge amended his answer and named them as third-party defendants.

Yater and Young then moved for summary judgment. Yater and Young’s motion was granted, and again Aldridge brought his appeal from the granting of summary judgment. The action between Aldridge and the original Thannisch owners was severed and proceeded as a separate action. In that case a summary judgment was entered in the owner’s favor, from which judgment appeal has also been taken.

By their terms, the 1976 addenda to the 1974 leases appear to be, as urged by Al-dridge, a renegotiation of the 1974 leases for an additional fifteen-year term.

Yater and Young urge that any extension or option to extend the lease is invalid because it failed to provide for the amount of the rent during the extended term. They maintain that the provisions in the 1974 addenda which provide a formula for increases in rent during any extended term were superseded by the 1976 addenda and therefore are no longer a part of the agreements. We agree that the 1974 rent increase formula has been superseded by the 1976 addenda, since the 1976 addenda by their terms provide that they supersede the 1974 addenda. As Yater and Young point out, the legal definition of “supersede” is “ ‘[obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. To set aside, render unnecessary, suspend, or stay.’ ” BLACK’S LAW DICTIONARY 1289 (5th ed. 1979). See also 40A WORDS AND PHRASES 335 (1964), cases cited under “supersede”. Since the formula for increases in rent was superseded by the 1976 addenda, the contract, under the 1976 addenda, is silent as to the amount of the rent for the extended term.

It is an established rule that a general covenant to renew or extend a lease which is silent as to the terms of the renewal or extension implies a renewal or extension upon the same terms and conditions as provided in the original lease and is sufficiently definite and certain to be enforceable. Watley v. Vergott, 561 S.W.2d 925 (Tex.Civ.App.—Fort Worth 1978, no writ). See also 51C C.J.S. Landlord and Tenant sec. 71 (1968); II FRIEDMAN, MILTON R., FRIEDMAN ON LEASES sec. 14.1 at 697 (2d ed. 1983); 3 THOMPSON, GEORGE W., COMMENTARIES ON THE MODERN LAW OF REAL PROPERTY 417 (1980). Since the contract in the case at bar is silent as to the terms of the rent for the extended term, it is implied that the rent is the same as that provided in the original lease. It follows that the lease is sufficiently definite and certain as to be enforceable.

Yater and Young principally rely on three cases in urging that the contract is indefinite as to rent and therefore unenforceable. The cases are Pickrell v. Buckler, 293 S.W. 667 (Tex.Civ.App.—El Paso), writ ref'd, 116 Tex. 567, 296 S.W. 1062 (1927); Kaplan v. Floeter, 657 S.W.2d 1 (Tex.App.—Houston [1st Dist.] 1983, no writ); and Schlusselberg v. Rubin, 465 S.W.2d 226 (Tex.Civ.App.—El Paso 1971, writ ref’d n.r.e.). In Schlusselberg, the renewal provision provided that the lessee was to have first refusal to renew the lease “ ‘at a price to be agreed upon or to meet any bona-fide offer.’ ” Schlusselberg, 465 S.W.2d at 227. In Kaplan, the renewal option authorized the lessee to renew the lease for a period of five years, with the monthly renewal payments to “ ‘be increased to an amount mutually acceptable to the parties hereto.’ ” Kaplan, 657 S.W.2d at 2. Finally, in Pickrell, the lessor was obligated to lease the premises for an additional five years at the same price as the lessor would be willing to rent the premises to someone else. In each of these cases these provisions were held to be invalid and unenforceable because they were indefinite as to the amount of the rent. All of these cases are distinguishable from the case at bar in that none of them were silent as to the rent for the extended term, so that they did not fall within the rule which is applicable in cases where the renewal provisions are silent as to the rent. Instead, in each of those cases, the leases contained provisions which indicated that it was not the intention of the parties that the rent remain the same as in the original term. There are no provisions in the leases in this case, as they were amended in 1976, which negate the implication that the rent in the renewal term is the same as that provided in the original lease.

Yater and Young also assert that this court cannot consider Aldridge’s point on appeal with respect to the December, 1974 lease since he failed to mention this second lease in his response. In their motion for summary judgment, Yater and Young referred to both the June, 1974 and the December, 1974 leases. In his response, Aldridge simply stated that they were not entitled to their motion for summary judgment because he had a valid and existing lease, a copy of which is a part of the record on file in this case. At that time, both leases were a part of the record on file in the case. We find the response sufficient to show opposition to the motion for summary judgment with respect to both leases.

Finally Yater and Young urge that we are bound to overrule Aldridge’s point of error by virtue of the law of the case doctrine.

A ruling by an appellate court on a question of law raised on appeal will generally be regarded as the law of the case in all subsequent proceedings in the same case. Houston Endowment, Inc. v. City of Houston, 468 S.W.2d 540, 543 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n.r.e.). In the prior appeal of this case, the motion for summary judgment obtained by the Thannisch owners was reversed for the reason that the accompanying affidavits did not show a holding over by Aldridge after the primary term. In that opinion this court stated that the Thannisch owners “did not agree tacitly, or otherwise, that the appellant could ‘hold over’ under either lease. Thus, when the appellant ‘held over’, he became a trespasser and became subject to suit in trespass to try title.” The court also, without any elaboration, overruled Aldridge’s second point of error, which stated that “[t]he trial court erred in ruling as a matter of law that Appellees were entitled to possession of the property involved in this action for the reason that there existed a valid and enforceable lease agreement between the Appellant and Appellees.” We find that this determination of the issue in the prior appeal is clearly erroneous, for the reason that it is contrary to the well-established principle previously stated. The law of the case merely expresses the practice of courts generally to refuse to reopen what has already been decided, and is not a limit to their power. The doctrine is inapplicable when the prior decision is clearly erroneous. Connecticut General Life Ins. Co. v. Bryson, 148 Tex. 86, 219 S.W.2d 799, 800 (1949); Barrows v. Ezer, 624 S.W.2d 613, 617 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ); Miller v. Winn, 28 S.W.2d 578, 580 (Tex.Civ.App.—Fort Worth 1930, writ ref’d). We sustain Aldridge’s sole point of error.

The summary judgment granted by the trial court is reversed and the cause remanded for further proceedings in accordance with this opinion, with costs of the appeal charged to Yater and Young, the appellees herein.


source: Caselaw Access Project

author: STEPHENS, Chief Justice.

license: Public Domain

text:
    KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, Commonwealth of Kentucky, Movant, v. Matilee CARTER, Respondent.
    Supreme Court of Kentucky.
    April 11, 1985.
    Reconsideration Denied May 14, 1985.
    R. Hughes Walker, Lucy B. Richardson, Cabinet for Human Resources, Office of the Counsel, Frankfort, for movant.
    David Justice, Ashland, for respondent.
   STEPHENS, Chief Justice.

The narrow issue we decide is whether, on appeal to the circuit court from a decision of the Kentucky Unemployment Insurance Commission (hereafter referred to as KUIC) pursuant to KRS 341.450, when an employer has been a party before the Commission, an aggrieved employee must join said employer as a party to the lawsuit. We conclude that the question must be answered in the affirmative and reverse the Court of Appeals.

Respondent voluntarily terminated her job with the Ashland Hospital Corporation, d/b/a King’s Daughters’ Hospital, claiming that her action was necessitated by good cause due to the conduct of her employer. She filed for unemployment compensation insurance benefits and when denied by the hospital, she appealed to the Department of Social Insurance. Following a hearing, a referee found that she was entitled to such benefits. The employer hospital appealed the referee’s decision to KUIC, which reversed the decision of the referee, thus denying benefits.

Within twenty days of the entry of the order of KUIC, Carter sought statutorily authorized judicial review by filing a complaint in the Boyd Circuit Court. KUIC was named in the caption of the complaint as the sole respondent. The only relief sought was a reversal of KUIC’s ruling denying her benefits. As conceded by respondent’s counsel, the former employer “was not named as a party due to an oversight on the part of her attorney.” In the recitation of facts, Carter identified her former employer as “King’s Daughters’ Hospital” but did not use its legally correct corporate name. Civil summons was issued and served only on the named respondent, KUIC, although an informational copy of the complaint was mailed to the hospital’s attorney of record in the proceeding before the KUIC.

KUIC filed a motion to dismiss the complaint because of the failure to join the employer as a party. Prior to the trial court’s decision on that motion, Carter tendered an amended complaint, joining the hospital. The trial court denied the motion to amend and dismissed the complaint. It noted that even in the tendered amended complaint, the name of the employer was “wrong.”

Carter then appealed the trial court’s order to the Court of Appeals, which reversed. In the opinion, that court recognized that under the appeal statute, KRS 341.450, the employer should have been joined as a party, but ruled that “given the circumstances of this case,” there was substantial compliance with the statutes and that the trial court erred when it refused to accept the amended complaint and when it dismissed the original complaint. We disagree.

On appeal, KUIC contends that the judicial review section of the unemployment statute mandates that the employer be joined as a party and that the doctrine of substantial compliance in this case is not the law of the Commonwealth. We agree.

Judicial review of KUIC’s decision is created, authorized and defined by an enactment of the Kentucky General Assembly. It appears as KRS 341.450, and is as follows:

Judicial review. — (1) Except as provided in KRS 341.460, within twenty (20) days after the date of the decision of the commission, any party aggrieved thereby may, after exhausting his remedies before the commission, secure judicial review thereof by filing a complaint against the commission in the circuit court of the county in which the claimant was last employed by a subject employer whose reserve account is affected by such claims. Any other party to the proceeding before the commission shall be made a defendant in such action. The complaint shall state fully the grounds upon which review is sought, assign all errors relied on, and shall be verified by the plaintiff or his attorney. The plaintiff shall furnish copies thereof for each defendant to the commission, which shall deliver one (1) copy to each defendant. (Emphasis added).

As stated, it is uncontroverted that Carter’s employer, Ashland Hospital Corporation, d/b/a King’s Daughters’ Hospital, was a party in the action before the KUIC and in fact, instituted said action to challenge the decision of the referee. It is also a fact that the employer was not joined as a party to the suit filed by Carter in the circuit court. It was not named in the caption of the complaint, no summons was issued or served pursuant to CR 4.04, and no relief was sought against the employer in the prayer for relief. In other words, Carter did not join the employer, in spite of a crystal clear directive in the statute that “Any other party to the proceeding before the commission shall be made a defendant in such action.” KRS 341.450.

It is argued by Carter that the mentioning of the employer (even though by an erroneous name) in the recitation of facts and the mailing of a copy of the complaint to the employer’s attorney created substantial compliance with the statute. Even if we agreed with the claim, we find no authority before the court to authorize the doctrine of substantial compliance in a case where the appeal process is Statutorily created and implemented. In the case of Board of Adjustments of City of Richmond v. Flood, Ky., 581 S.W.2d 1 (1978), the plaintiffs sought judicial review of the decision of the Board of Adjustment, under the aegis of a specific statute KRS 100.347. In direct violation of the terms of that statute, plaintiffs failed to name the Planning and Zoning Commission as a party defendant in their complaint. In ruling that the complaint was to be dismissed for want of jurisdiction, viz., failure to name all parties, we said:

There is no appeal to the courts from an action of an administrative agency as a matter of right. When grace to appeal is granted by statute, a strict compliance with its terms is required. Where the conditions for the exercise of power by a court are not met, the judicial power is not lawfully invoked. That is to say, that the court lacks jurisdiction or has no right to decide the controversy. Kentucky Utilities Co. v. Farmers Rural Electric Cooperative Corporation, Ky., 361 S.W.2d 300 (1962); Roberts v. Watts, Ky., 258 S.W.2d 513 (1953)....
It is plain as a billboard that the legislature has granted to persons aggrieved by the final action of the board of adjustments the grace of appeal to the circuit court provided they perfect that appeal by filing it in the circuit court, including the planning commission as a party, within thirty days. Here the appeal was filed within the thirty-day limitation, but no effort was made to include the Commission as a party until sixty-eight days after the final action of the Board. Consequently, one of the conditions precedent to the exercise of judicial power by the circuit court was not met and it. was required to dismiss the appeal for want of jurisdiction. Kentucky Utilities Co. v. Farmers Rural Electric Cooperative Corporation, supra. Cf. City of Danville v. Wilson, Ky., 395 S.W.2d 583 (1965); Howell v. Haney, Ky., 330 S.W.2d 941 (1960). Id. at 2. (Emphasis added).

We believe that Flood is dispositive of the case at bar and the principles enumerated therein are applicable here. These same principles have been repeated over and over in this jurisdiction. Kentucky Utilities v. Farmers Rural Electric Cooperative Corporation, Ky., 361 S.W.2d 300 (1962); City of Danville v. Wilson, Ky., 395 S.W.2d 583 (1965); Howell v. Haney, Ky., 330 S.W.2d 941 (1960); Roberts v. Watts, Ky., 258 S.W.2d 513 (1953); Scott Brothers Logging and Lumber Co. v. Cobb, Ky., 465 S.W.2d 241 (1971) and Blue Grass Mining Co. v. North, Ky., 96 S.W.2d 757 (1936).

We believe that the statute in question, and others which establish judicial review of decisions of administrative bodies and which require certain parties to be joined, in effect transform such parties into indispensable ones. CR 19.01. In the present case, the statute gives the very cogent reason for its requirement, viz., that the employer’s reserve account will be affected by the outcome of this litigation.

In arguing for the doctrine of “substantial compliance” to be applied in this case, both the Court of Appeals and respondent rely heavily on the case of Energy Regulatory Commission v. Kentucky Power, Ky. App., 605 S.W.2d 46 (1980). That reliance is misplaced. In that case, the then Kentucky Attorney General had permissively intervened in a hearing before the Commission. The Commission denied the rate increase, and Kentucky Power appealed. In the appeal, the Attorney General was not joined as a party defendant, but was sent notice of the proceedings. The Court of Appeals did not consider the Attorney General as an indispensable party and refused to dismiss the appeal. The basis of the decision was that the appropriate appeal statute did not require the Attorney General to be joined, but only to receive notice of the appeal. The Court said that the “better practice” would be to name, in the caption, all parties who appeared of record before the Commission. The court said that notice in such cases must be given “... by means of the issuance of summons of process, or to demonstrate by other concrete evidence the receipt of notice so that all proper parties are fully apprised before the reviewing court and in position to participate in the entire appellate proceedings.” Id. at p. 51. As the judicial review statute in Kentucky Power does not require the joinder of other parties that appeared before the Commission, the principle of substantial compliance was not even considered in that case. The Attorney General was a “proper party” and not an indispensable party.

Because the judicial review statute, KRS 341.450, was not followed and because, as a result, an indispensable party to the appeal was not made a party defendant, the judgment of the trial court is affirmed. The decision of the Court of Appeals is reversed.

All concur.


author: WILHOIT, Judge.

text:
    Charles E. POLK, Jr., and GC & Associates, Inc., Appellants, v. George M. WIMSATT, Jr., Yvonne A. Wimsatt, G. William Blackburn, Jr., and Stallings & Stallings, Appellees.
    Court of Appeals of Kentucky.
    March 8, 1985.
    Rehearing Denied May 3, 1985.
    Henry Meigs, II, Kenneth S. Handmaker, Middleton & Reutlinger, Louisville, for appellants.
    John A. Fulton, Joseph L. Lenihan, Woodward, Hobson & Fulton, John T. Bal-lantine, Ogden, Robertson & Marshall, G. William Blackburn, Jr., Louisville, for ap-pellees.
    Before GUDGEL, HOWARD and WIL-HOIT, JJ.
   WILHOIT, Judge.

This is an appeal from orders of the Jefferson Circuit Court dismissing the appellants’ complaint and denying their motion to file an amended complaint. The appellants claim that the court erred in its dismissal of their complaint and denial of their motion.

The complaint in this action sought damages against the appellees for breach of a contract which provided that certain funds held in escrow should remain in escrow until an agreement was reached as to their disposal, or until

a final adjudication by a court of competent jurisdiction (including that of a final appellate court, should an appeal be taken) relative to the claimed indebtedness of the parties litigant in Jefferson Circuit Court Civil Action No. 80CI-10575.

The contract was made on January 28, 1981. Civil Action No. 80-CI-10575 had begun with the filing of a complaint on November 6, 1980. On June 11, 1982, pursuant to CR 77.02(2), that complaint was ordered dismissed “with prejudice for lack of prosecution” and the proceeds held in escrow were directed to be paid over to the appellees George and Yvonne Wimsatt. Following a motion to vacate this order, on October 18, 1982, the court amended its prior order to dismiss with prejudice “all claims, counterclaims, or cross-claims of any kind or character made by any of the parties hereto” for lack of prosecution and to delete the order to pay over the funds. The appellant G.C. & Associates, Inc. took an appeal from this order and that of June 11. This Court, in an unpublished opinion affirmed the decision of the trial court, and the Supreme Court denied discretionary review on January 11, 1984. It was following this that the orders appealed from in the instant action were entered.

The appellants argue that the trial court should not have dismissed the complaint in this action because the dismissal with prejudice in Civil Action No. 80-CI-10575 did not constitute a final adjudication of the claim as it did not constitute a “final adjudication ... relative to the claimed indebtedness.”

The common law of this jurisdiction has long recognized that the dismissal of a suit for lack of prosecution alone would not operate as a bar to the cause of action. Sumner v. Brewer, 206 Ky. 579, 267 S.W. 1080 (1925); Harris v. Tiffany & Co., 47 Ky. (8 B.Mon.) 225 (1848). If this rule is operative here, then the appellants are correct that there has been no “final adjudication.” To determine the efficacy of the rule under the present circumstances, we must consider the effect of the applicable Civil Rules and this Court’s prior opinion in Civil Action No. 80-CI-10575.

A dismissal with prejudice, of course, acts as a bar to again asserting the cause of action so dismissed. It thus has the effect of a judgment on the merits constituting the cause res judicata. CR 77.02 makes no provision as to whether a dismissal under it should be with or without prejudice, and in Hertz Commercial Leasing Corp. v. Joseph, Ky.App., 641 S.W.2d 753 (1982), where the Rule had not been strictly complied with and the order of dismissal did not recite that the dismissal was with prejudice, this Court held that such a dismissal may not “be automatically considered ‘with prejudice’.” Id. at 755. The opinion in that case, however, did not specifically consider CR 41.02(3) (emphasis added), which provides:

Unless the court in its order for dismissal otherwise specifies, a dismissal under this Rule, and any dismissal not provided for in Rule ⅛1, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

See also Stephenson v. Boswell, Ky., 319 S.W.2d 457 (1959). This provision would seem to render a dismissal pursuant to CR 77.02 a dismissal with prejudice regardless of whether the trial court so provided. In any event, Hertz is distinguishable from the case at hand in that the order here specifically provided for dismissal with prejudice and the provisions of CR 77.02 were finally, though not initially, complied with.

Because of the grave consequences of a dismissal with prejudice, we have no doubt that such a dismissal pursuant to either CR 41.02 for failure to prosecute or CR 77.02 should be resorted to only in the most extreme cases, see 9 C. Wright & A. Miller, Federal Practice and Procedure § 2369 (1971), and that this Court should carefully scrutinize the trial court’s exercise of discretion in doing so. This kind of dismissal may even raise questions of constitutional import. Cf. Societe Internationale pour Participations Industrielles v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). Less drastic remedies, including dismissal without prejudice, would normally suffice to punish a dilatory, but not recalcitrant, party where the rights of other parties have not been prejudiced by the delay. Even so, the dismissal of Civil Action No. 80-CI-10575 is not open to our review. Another panel of this Court has already determined that it did not constitute an abuse of discretion. That panel’s opinion has become final. We, as well as the parties, are bound by it. See Fannin v. Davis, Ky., 423 S.W.2d 235 (1967); E.F. Prichard Co., Inc. v. Heidelberg Brewing Co., 314 Ky. 100, 234 S.W.2d 486 (1950); Skinner v. Morrow, Ky., 318 S.W.2d 419 (1958); Villier v. Watson, 168 Ky. 631, 182 S.W. 869 (1916). That opinion was a “final adjudication ... relative to the claimed indebtedness.”

Even had the appellants sought relief from the former order pursuant to CR 60.-02, such a proceeding would not have affected the finality of the order in the prior case. See CR 60.02. We find no error in the court’s dismissal of the complaint in this action.

We likewise find no error in the court’s denial of the appellants’ motion to amend their complaint. The amended complaint sought to raise the same claims as the complaint which had been dismissed with prejudice in Civil Action No. 80-CI-10575. The dismissal of that action with prejudice precludes another action on the same matter. Cf. Overstreet v. Greenwell, Ky., 441 S.W.2d 443 (1969); Yocom v. Hayden, Ky.App., 566 S.W.2d 776 (1978); 27 C.J.S. Dismissal and Nonsuit § 73 (1959).

The orders of the trial court are affirmed.

All concur.


author: CLARK, Presiding Judge.

text:
    STATE of Missouri ex rel. WHITECO METROCOM, f/d/b/a White Advertising International, Appellant, v. STATE HIGHWAY AND TRANSPORTATION COMMISSION of the State of Missouri, Respondent.
    No. WD 36073.
    Missouri Court of Appeals, Western District.
    April 2, 1985.
    As Modified April 16, 1985.
    Stephen G. Newman, Hawkins, Brydon and Swearengen P.C., Jefferson City, for appellant.
    Bruce A. Ring, Chief Counsel, Dennis J. Redel, Asst. Counsel, Missouri Highway and Transp. Com’n, Jefferson City, for respondent.
    Before CLARK, P.J., and TURNAGE and KENNEDY, JJ.
   CLARK, Presiding Judge.

Appellant owns an outdoor advertising sign located in Marion County on Route 36. In March, 1978, the Commission notified appellant to remove the sign because it was in violation of the location provisions contained in §§ 226.520 and 226.540, RSMo. 1969. Appellant obtained review of the removal order and appeals the decision by the circuit court of Cole County affirming the original commission decision. Affirmed.

The facts of the case were stipulated. The sign was erected May 30, 1968. It is therefore a pre-existing non-conforming sign entitled to a permit if it was in compliance with the location and other requirements of the statutes which preceded § 226.550.2(2) and the other sections of the Billboard Act, RSMo.1978. The further facts stipulated were that Marion County did not adopt comprehensive zoning until October 1, 1969 after the subject sign was erected, that the land on which the sign is located is zoned agricultural and that the sign is situated within 660 feet of the Route 36 right-of-way.

In the first point, appellant contends the decision ordering removal of the sign must be reversed because recourse to the Marion County zoning law adopted after appellant’s sign was in place gives the zoning law retrospective effect in violation of Article I, § IB of the Missouri Constitution prohibiting ex post facto laws. We do not reach the merits of this proposition. Appellant made no mention of the constitutional claim in proceedings before the Commission or in its petition for review in the circuit court. Constitutional questions must be presented at the first opportunity. Independent Stove Co., Inc. v. State Highway Commission, 625 S.W.2d 246 (Mo.App.1981). Appellant waived its right to raise the issue when it did not present the contention in its appearance before the Commission and it may not raise the claim for the first time on appeal. Osage Outdoor Advertising Inc. v. State Highway Commission, 687 S.W.2d 566 (Mo.App.1984).

In the second point, appellant asserts that the Commission failed to carry its burden of proving the subject sign to be unlawful because the Commission did not prove the sign was not located within one thousand feet of a commercial or industrial activity. Some explanation of the intricacies of the statutes is necessary to understand the claim.

Under § 226.550.2(2), RSMo.1978, signs erected before March 30, 1972 but on or after January 1,1968 are entitled to receive a permit if the sign was lawfully in place under existing law when the sign was erected. As regards the subject sign, its location within 660 feet of the nearest highway right-of-way was unlawful under the prior statute, § 226.520, RSMo.1969 unless the sign came within the exception of § 226.520(5), RSMo.1969. That exception permits such signs if they are located in unzoned commercial or industrial areas as defined and determined pursuant to §§ 226.500 to 226.600.

Section 226.540.4, RSMo.1969 relevant here defines unzoned commercial or industrial areas as all unzoned land within one thousand feet of any commercial or industrial activity other than outdoor advertising. Thus, appellant’s sign was lawfully erected in 1968 only if, at the time, it was within one thousand feet of commercial or industrial activity. The stipulation of facts set out that no commercial or industrial activity was present within one thousand feet of the sign when the Commission made its inspection in 1973, but the record is silent as to what conditions prevailed in 1968.

Appellant claims the burden was on the Commission in this case to present evidence showing the' lack of any commercial or industrial activity within one thousand feet of the sign in 1968 when it was erected. Absent that proof, appellants argue they are, in effect, entitled to a presumption the sign was lawful. The contention fails because under the general statute, the sign was unlawful. It is only by reason of an exception associated with industrial and commercial activity that the sign may be qualified. It was appellant’s burden to prove that the sign came within the exception.

In Superior Outdoor Advertising Co. v. State Highway Commission, 641 S.W.2d 480 (Mo.App.1982), it was noted that the Commission could not possibly be held to the burden of negating all possible exceptions under which a sign might be lawful. There, Superior had the obligation to offer evidence supporting its claim that the sign in question was lawful because it was tourist oriented. The opinion adopted the language of Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 44-45, 68 S.Ct. 822, 827-828, 92 L.Ed. 1196 (1948):

“[T]he general rule of statutory construction [is] that the burden of proving justification or exemption under a special exception to the prohibition of a statute generally rests on one who claims its benefits, ...”

Appellant cites and relies on State ex rel. White Advertising International v. State Highway Commission, 655 S.W.2d 860 (Mo.App.1983) where one of the issues was the location of a sign within or without one thousand feet of commercial or industrial activity. The court there said “We will assume without deciding that the Commission had the burden to prove the unlawfulness of the sign for which it issued its notice to remove.” . Id. at 862. Although the opinion did then undertake to demonstrate that the Commission had sustained the burden of proof, the observation quoted does not purport to be an authoritative statement of the law and was not a necessary component of the decision. The rule on burden of proof in the circumstance of exemption under a special statute is as set out in Superior Outdoor, supra. See 2 Am.Jur.2d Administrative Law, § 391 (1962) and 82 C.J.S. Statutes § 382 (1953).

The judgment is affirmed.

All concur.


author: GREENE, Judge.

text:
    In re the MARRIAGE OF James Roy JENKINS, Petitioner-Respondent, and Linda Jo Jenkins, Respondent-Appellant.
    No. 13665.
    Missouri Court of Appeals, Southern District, Division One.
    April 12, 1985.
    C. Ronald Baird, Door and Baird, P.C., Springfield, for petitioner-respondent.
    Robert B. Hankins, Springfield, for respondent-appellant.
   GREENE, Judge.

Petitioner, James Roy Jenkins, filed an application for a writ of habeas corpus in the Circuit Court of Greene County, seeking an order directing his former wife, Linda Jo Jenkins, to return to James custody of the two minor children of the parties. James claimed custody rights by reason of a judgment of the District Court of Seward County, Kansas, entered January 24, 1984, which awarded the children’s custody to him.

The trial court, after hearing evidence, issued the writ, and directed Linda to return the children to James, with the reason given for such action being that the Kansas decree was entitled to full faith and credit by the Missouri courts.

Linda appeals, contending that she is entitled to custody of the children by reason of a Greene County decree entered on August 29, 1980, as modified on July 21, 1983, and that the Kansas court had no jurisdiction to enter its decree changing custody of the children from Linda to James.

Appeal does not lie from a decision in a habeas corpus proceeding. The remedy for a losing respondent, such as Linda, is by way of an application for a writ of certiorari. While we treat her appearance here, by way of an “appeal”, as being in the nature of certiorari, State ex rel. Bennett v. Gagne, 623 S.W.2d 87, 89[4] (Mo.App.1981), our scope of review is limited to examining the record to see if the Greene County trial court had jurisdiction to entertain the application for a writ of habeas corpus filed by James. State ex rel. Danforth v. Bondurant, 566 S.W.2d 478, 480[1] (Mo. banc 1978).

Linda did not raise the issue of lack of jurisdiction of the Greene County Circuit Court to entertain the habeas corpus application, and the record indicates the children and Linda were domiciled and physically present in Greene County when its circuit court assumed jurisdiction. The record is regular on its face, and jurisdiction was properly in the Greene County Circuit Court.

The appeal is dismissed.

TITUS, P.J., and FLANIGAN, J., concur.


author: CROW, Presiding Judge.

text:
    Ruby Lee AMICK, Appellant, v. Eugene HORTON and Dale E. Amick, Respondents.
    No. 13582.
    Missouri Court of Appeals, Southern District, Division Three.
    April 15, 1985.

      Daniel E. Monaghan, Kansas City, for appellant.
    Patrick 0. Freeman, Jr., Thayer, for respondents.
   CROW, Presiding Judge.

Ruby Lee Amick (“plaintiff”) appeals from an order dismissing her cause of action with prejudice. The order was entered because plaintiff failed to answer interrogatories served on her by the two defendants: her son, Dale E. Amick, and her son-in-law, Eugene Horton.

The suit began February 16, 1982, when Columbia Mutual Insurance Company, formerly Midland Mutual Insurance Company (“the insurer”), filed a petition against the two defendants, alleging that on September 28, 1981, a dwelling owned by plaintiff and insured by the insurer against loss by fire was “wholly and totally destroyed by fire.” The petition, filed by attorney L. Dwayne Hackworth, pleaded that the fire occurred when defendant Horton parked a pickup truck owned by defendant Amick close to plaintiff’s dwelling and attempted to charge the pickup’s battery with a charger connected to a power source in the dwelling. According to the petition, the pickup had a defect in its wiring which caused the pickup to catch fire. That fire then ignited the dwelling. The petition charged both defendants with negligence in that they “knew the wiring in said pickup truck was faulty but failed to take necessary precautions to prevent such a fire.”

The petition explained that by reason of the loss, the insurer paid plaintiff the policy limits of $18,000 on the dwelling and $4,000 on the contents. The insurer, claiming it “became subrogated to and was assigned by” plaintiff all of her rights against the defendants, sought judgment for $22,000.

Plaintiff was not originally a party to the suit, but on July 2, 1982, the insurer, per attorney Hackworth, filed a motion seeking leave to join plaintiff as a party because “she claims an interest relating to the subject of this action and her joinder is necessary to allow complete relief to be given in this matter.”

Leave was granted, and a second amended petition, consisting of two counts, was filed. In Count I, the insurer reiterated its claim against both defendants. In Count II, plaintiff, alleging she had sustained $34,000 damages because of the fire, prayed for judgment in that amount against both defendants.

On September 22, 1982, the defendants served written interrogatories on plaintiff. Plaintiff neither answered nor objected to the interrogatories within the 20 days allowed by Rule 57.01(a), Missouri Rules of Civil Procedure (13th ed. 1982).

On April 13, 1983, attorney Hackworth mailed to defendants’ attorney a notice stating that on May 2, 1983, he would appear in court and “call up the above styled cause and request a trial setting at the earliest possible date.”

On April 18, 1983, defendants filed a “Motion Opposing Trial Setting,” asserting that because of plaintiff’s failure and refusal to answer the interrogatories, discovery had not been completed and could not be completed until the interrogatories were answered. That same day (April 18, 1983) defendants also filed a “Motion for Sanctions,” asking the court to order plaintiff to answer the interrogatories “within a time certain, and failing to do so, to enter appropriate relief under Rule 61.”

On May 2, 1983, the trial court entered the following order:

“Motion For Sanctions sustained; Plaintiff ordered to answer interrogatories within 20 days or petition dismissed without further order or notice; clerk to notify counsel. Motion opposing trial setting sustained.”

On May 12, 1988, the trial court received from attorney Hackworth a motion for leave to withdraw as counsel for plaintiff. The motion stated that plaintiff “has requested that I withdraw my appearance as her attorney.”

The next entry on the trial court’s docket sheet is dated June 20, 1983. It states:

“Motion To Withdraw sustained; Order filed; Clerk to notify Plaintiff Ruby Am-ick.”

The “Order” referred to in the entry states:

“On May 2, 1983, in response to defendant’s [sic] Motion For Sanctions, the Court made the following docket entry:
‘Motion For Sanctions sustained; plaintiff ordered to answer interrogatories within 20 days or petition dismissed without further order or notice; clerk to notify counsel. Motion Opposing Trial Setting Sustained.’
It is further ordered by the Court that the Clerk of the Court mail a copy of this order to Plaintiff Ruby Lee Amick, at her last known address to-wit: Route 1, Box 127, Alton, Missouri, 65606.
It is further ordered that if said Ruby Lee Amick does not respond to the order of May 2,1983 by the 5 day of July 1983, the petition herein will be dismissed without further order or notice.”

A docket entry dated June 21, 1983, states: “Copy of Order mailed to Ruby Amick.”

On June 29, 1983, the following “Stipulation for Dismissal with Prejudice” was filed:

“Comes now Plaintiff Midland Mutual Insurance Company (now Columbia Mutual Casualty Insurance Company), and its attorney, L. Dwayne Hackworth of Piedmont, Missouri, and, also comes Defendants Eugene Horton and Dale E. Amick, and by their attorney, Patrick 0. Freeman, Jr., and the parties and their counsel hereby stipulate and agree that the plaintiff’s claim against defendants shall be dismissed with prejudice at the cost of the defendants.”

The stipulation bore the signature of an official of the insurer, the signature of attorney Hackworth, representing the insurer, and the signature of attorney Freeman, representing the two defendants.

The next activity in the case occurred when the trial court entered the following “Order of Dismissal”:

“COMES NOW on this 5th day of July, 1983, Plaintiff Midland Mutual Insurance Company (now Columbia Mutual Casualty Insurance Company), in person and by its attorney L. Dwayne Hackworth, and Defendants Eugene Horton and Dale E. Amick, by their attorney Patrick O. Freeman, Jr., and submit to this Court Stipulation For Dismissal With Prejudice.
The Court finds that said Stipulation For Dismissal With Prejudice is not unconscionable and that said Stipulation is approved as submitted and that said cause be dismissed with prejudice at the costs of defendant [sic].”

Three days later, on July 8, 1983, plaintiff filed answers to defendants’ interrogatories.

On July 20, 1983, defendants filed a motion pointing out that plaintiff’s answers had been filed “three days late.” Defendants prayed that the answers “be stricken pursuant to Supreme Court Rule 61 and that plaintiff’s petition be dismissed.”

On August 4, 1983, plaintiff, through her present attorney, filed a motion praying “that the Dismissal with Prejudice entered on July 5, 1983 be set aside and that this cause be reinstated.” As grounds therefor, plaintiff alleged that at the time of the dismissal, she “was without counsel and did not understand the legal consequences of not filing timely her answers to said Interrogatories.” It is evident from this motion that plaintiff (or her attorney) feared either that the order of July 5, 1983, had dismissed plaintiff’s claim along with the insurer’s claim, or that the trial court’s order of June 20, 1983, became self-executing when plaintiff failed to file her answers to interrogatories by July 5.

The trial court held a hearing on plaintiff’s motion the day it was filed. Plaintiff, the lone witness, acknowledged that in April, 1983, she became “somewhat disenchanted” with attorney Hackworth’s representation and asked him to withdraw. She testified she did not remember whether she received a copy of his motion to withdraw, but she did recall a letter from him stating that if she got another attorney the records would be in Hackworth’s office.

Plaintiff denied knowing that the court had allowed Hackworth to withdraw on June 20, 1983, and she did not remember whether she received any notice from the court or Hackworth that he had withdrawn. She admitted, however, that by that time she had decided to change attorneys and that she had talked to a “Mr. Brown,” who said he would introduce her to an attorney.

Asked when she first became aware she was not represented by Hackworth, plaintiff replied: “I don’t remember when it was. I guess when I — I got — I don’t know. I’m all confused, this whole crap.”

Asked whether she was aware that the court had ordered her cause of action dismissed if her answers to the interrogatories were not filed by July 5, 1983, plaintiff answered: “Well, I knew something had to be filed. I didn’t know what they was talking about.”

On cross-examination, plaintiff was asked when she fired Hackworth. She replied: “I don’t know. It was sometime in — in May. I don’t know what date it was.”

Plaintiff did not remember when she first saw defendants’ interrogatories, and she denied that Hackworth told her there were some questions she had to answer. She explained: “All he was concerned about was how much stuff depreciated. That’s all he had on his mind.”

Asked when and where she signed her answers to the interrogatories, plaintiff stated: “Well, I don’t know where I signed it. It’s my signature. I signed some in the courthouse with Noel Gene Johnson, but I don’t know if that’s them or whatever.”

Plaintiff insisted she did not know when she first saw the answers. She was likewise unable to recall the length of the interval between the time she fired Hack-worth and the time she hired her present attorney.

At the conclusion of the hearing on August 4, 1983, the trial court ordered the judgment of July 5,1983, “reopened for the purpose of taking additional evidence” on plaintiff’s motion to set aside the dismissal. It appears from this that the trial court considered the order of July 5 as a dismissal of plaintiff's claim.

Thereafter, at the instance of defendants, a deposition was taken of attorney Hackworth. He testified he received a copy of defendants’ interrogatories in September, 1982. On September 27, 1982, he mailed a copy of the interrogatories to plaintiff, along with' a letter instructing plaintiff to answer them. The answers were to be returned to Hackworth’s office for review.

On February 4, 1983, having received no answers from plaintiff, Hackworth wrote her a letter pointing out that the interrogatories had to be answered before he could proceed with the suit. The letter was accompanied by another copy of the interrogatories.

On February 11, 1983, plaintiff telephoned Hackworth’s office, advising his secretary that she would come in “one day next week” and bring the papers Hack-worth needed.

On March 23, 1983, Hackworth talked to plaintiff by telephone. That conversation concerned the need for receipts evidencing the purchase of items destroyed in the fire.

On April 21, 1983, Hackworth advised plaintiff by letter that the defendants had filed a motion to dismiss plaintiff’s action for failure to answer the interrogatories. Hackworth was obviously referring to defendants’ motion for sanctions filed April 18, 1983. Hackworth’s letter stated: “It is absolutely necessary that you make an appointment with my secretary immediately to come in and bring all receipts and have your Answers to the Interrogatories. If we do not do something within the next few days, you may lose any claim you have with the insurance company.”

Hackworth met with plaintiff and her daughter at Hackworth’s office on April 25, 1983. Answers to the interrogatories were prepared and assembled for typing.

On May 5,1983, the typewritten answers were mailed from Hackworth’s office to plaintiff. The answers were accompanied by a letter from Hackworth advising plaintiff to sign the answers and return them to him in a stamped envelope supplied for that purpose. The letter added: “I would appreciate your immediately putting this document back in the mail to me as I have received notice this date from the Court that unless the same is filed within twenty days, your Petition will be dismissed.” Hackworth was referring, of course, to the trial court’s order of May 2, 1983, which directed plaintiff to answer the interrogatories within 20 days.

Plaintiff never returned the answers to Hackworth’s office.

A few days after mailing plaintiff the typewritten answers, Hackworth received from plaintiff a “written memorandum” dated “5/5/83,” which informed him that plaintiff no longer wished him to serve as her attorney.

That triggered Hackworth’s motion to withdraw, which he prepared and mailed May 10, 1983. Hackworth sent plaintiff a copy, accompanied by a letter reminding her that the interrogatory answers he had sent her May 5, 1983, needed to be signed and filed on or before May 22, 1983. The letter warned: “If you fail to have these Answers filed, you may lose any claim you have with the insurance company as your Petition will be dismissed. Therefore, you may either return the executed Answers to Interrogatories to my office for filing or request the attorney who is now representing you to file the same prior to May 22.”

According to Hackworth, all of his letters to plaintiff were addressed to Route 1, Box 127, Alton, Missouri 65606. The copy of the trial court’s order of June 20, 1983, was also sent to plaintiff at that address. The insurance policy (the inception date of which was December 12,1980) showed that address as plaintiff’s address. Plaintiff, in her interrogatory answers (sworn to on July 8, 1983), gave her address as “Rt. 1, Alton, MO 65606.” Hackworth testified that none of his correspondence to plaintiff was ever returned unclaimed.

On November 21, 1983, the trial court received Hackworth’s deposition in evidence. On December 5, 1983, the trial court again took up plaintiff’s motion of August 4, 1983, to set aside the dismissal of July 5, 1983, and defendants’ motion of July 20, 1983, to strike plaintiff’s interrogatory answers and her petition. Defendants appeared by attorney Freeman. Neither plaintiff nor her attorney appeared.

The trial court entered an “Order of Dismissal with Prejudice,” providing, in pertinent part:

“Defendants Eugene Horton and Dale E. Amick’s Motion to Strike Interrogatories and Dismiss Plaintiff Ruby Lee Am-ick’s Cause of Action filed herein on July 20, 1983, is hereby sustained and Plaintiff Ruby Lee Amick’s Petition and cause of action filed herein is dismissed with prejudice at cost of plaintiff.
Plaintiff Ruby Lee Amick’s Motion To Set Aside Order of Dismissal filed herein on July 5,1988, which Order of Dismissal was reopened for additional evidence by order of this court on August 4, 1983, and such Motion To Set Aside Order of Dismissal is hereby overruled, set aside and for naught held and plaintiffs cause of action is hereby ordered dismissed with prejudice at cost of plaintiff.
Ordered this 5th day of December, 1983.”

Plaintiff appeals from this order, briefing two assignments of error. The first is that the trial court erred in making no determination whether defendants were prejudiced by plaintiffs failure to answer the interrogatories by July 5, 1983, the ultimate deadline fixed by the court. Plaintiffs contention, as we understand it, is that it was wrong for the trial court to dismiss her claim absent a finding that her dereliction in answering resulted in prejudice to defendants.

In support of her position, plaintiff cites four cases, the most recent of which is Crompton v. Curtis-Toledo, Inc., 661 S.W.2d 645 (Mo.App.1983). There, the plaintiff, during the taking of his deposition, was asked the name of a person involved in an incident pertinent to the suit. The plaintiff replied that he did not recall the person’s name. Interrogatories requesting the same information produced a similar answer. At trial, two and a half years after the deposition, the plaintiff called the previously unidentified person as a witness. The defendant objected, asking that the witness be barred from testifying or that the trial be recessed until the following morning so that the witness’ deposition could be taken. The trial court granted the defendant no relief and allowed the witness to testify. Judgment in favor of the plaintiff was reversed, the appellate court holding that the plaintiff had breached his continuing duty to supplement the information requested in discovery. The opinion states that in such circumstances, prior to imposing sanctions on the errant party, the trial court must first determine whether in the particular situation the opposing party has been prejudiced. Id. at 650[4], The trial court in Crompton failed to make that determination. However, the appellate court, observing that the witness’ testimony was crucial to the plaintiff’s case, found that the defendant was prejudiced by the nondisclosure and that the trial court abused its discretion in not allowing the defendant to depose, or at least interview, the witness before he testified. Id. at 651[9].

The other three cases cited by plaintiff, State ex rel. State Highway Commission v. Cool’s Tall Tower Restaurant and Marina, Inc., 654 S.W.2d 224 (Mo.App.1983), Sagehorn v. Phillips Petroleum Co., 648 S.W.2d 647 (Mo.App.1983), and N.W. Electric Power Cooperative, Inc. v. Buckstead, 578 S.W.2d 314 (Mo.App.1979), deal with situations similar to Crompton.

In Cool’s Tall Tower, a condemnation case, the landowner sought to call four expert witnesses on the issue of valuation. More than two years before trial, the con-demnor had, by interrogatory, asked for the names of all expert witnesses the landowner intended to call. None were disclosed until five days before trial when the landowner supplied the names of two. At the start of the trial the landowner supplied the names of the other two. On objection by the condemnor, the trial court excluded the testimony of all four. On appeal by the landowner, the trial court was upheld.

In Sagehorn, it was discovered during trial that the defendant had inadvertently failed to disclose and produce certain documents requested by the plaintiff in pretrial discovery. The trial court refused to allow the defendant to use the documents but denied a request by the plaintiff to strike the defendant’s pleadings or to grant a mistrial. On appeal by the plaintiff, the trial court’s action was upheld.

In Buckstead, a condemnation case, the landowners’ answers to the condemnor’s interrogatories were due six days before trial. The answers were filed two days before trial (four days late). In their answers, the landowners identified themselves as the only persons who would testify on the issue of value. At a conference just before trial, the landowners identified two other witnesses they intended to call on that issue. The condemnor’s objection to those witnesses was overruled, and they were allowed to testify. On appeal by the condemnor, the trial court’s ruling was upheld, the appellate court noting that in its objection at trial, the condemnor stated no claim of prejudice. Id. at 317.

The element that distinguishes the instant case from the four cited by plaintiff is that in each of the latter, a party sought, at trial, to call witnesses or present evidence which, during discovery, the party had either failed to timely disclose or failed to disclose at all. Each of the four cases points out that in such a situation, it is for the trial court to determine whether the other party has been prejudiced, and, if so, to decide, in the exercise of its discretion, what sanctions to impose on the culpable party. Crompton, 661 S.W.2d at 650; Cool’s Tall Tower, 654 S.W.2d at 226[1]; Sagehorn, 648 S.W.2d at 649; Buckstead, 578 S.W.2d at 317.

The trial court in the instant case was not confronted by that type of problem. The issue whether to impose sanctions on plaintiff for failure to answer defendants’ interrogatories by the due date did not arise during trial. It arose when plaintiff ignored the final deadline and the trial court, consistent with its order of June 20, 1983, ordered plaintiff’s cause of action dismissed. The trial court did not find itself in the position of having to decide, during an ongoing trial, whether to allow plaintiff to use evidence that should have been, but was not, disclosed during discovery.

The instant case presents the same issue as Portell v. Portell, 643 S.W.2d 18 (Mo.App.1982), and Wipke v. Louisiana Farm Supply, Inc., 622 S.W.2d 772 (Mo.App.1981), cited by defendants. In Portell, a petitioner failed to answer interrogatories, prompting the respondent to file a motion for sanctions. The trial court granted the motion, ordering the petitioner to answer by a certain deadline and providing that if she failed to do so, her pleadings would be stricken and judgment would be entered in favor of the respondent. The petitioner ignored the deadline, and the trial court, noting the interrogatories had gone unanswered for over three and a half months, imposed the sanctions. Some time thereafter, the petitioner filed the answers. Finding that the petitioner’s conduct readily translated into a display of contumacious and deliberate disregard for the trial court’s authority, the appellate court upheld the trial court. Portell, 643 S.W.2d at 20. The opinion, noting the absence of good cause or excuse for the petitioner’s inaction, found no abuse of the trial court’s discretion in refusing to set the judgment aside. Id. at 20[3-5].

In Wipke, the plaintiff, after considerable delay, was ordered to answer the defendant’s interrogatories, but failed to answer two of them. More than two years later, the plaintiff was again ordered to answer the same two interrogatories, along with others. The plaintiff again failed to do so and, several months later, the plaintiff was once again ordered to answer. This order was likewise ignored, whereupon the trial court entered an order precluding the plaintiff from introducing certain evidence at trial and directing the plaintiff to produce other data by a certain deadline. This order stated that if the data were not produced, the plaintiff’s pleadings would be stricken. When the plaintiff failed to comply, the trial court struck the plaintiff's pleadings and dismissed the cause with prejudice. This action was upheld, the appellate court noting that the record demonstrated that the plaintiff’s inertia flouted the trial court’s authority and that the trial court did not abuse its discretion in dismissing the case. Id. at 774.

State ex rel. Jones v. Reagan, 382 S.W.2d 426 (Mo.App.1964), also cited by defendants, involved the application of similar sanctions against a defendant who failed, without justification, to answer interrogatories. Noting that the defendant was given at least four opportunities to comply with orders to answer, but failed to do so, Reagan upheld a trial court order striking the defendant’s pleadings and entering judgment by default against the defendant. The opinion states:

“If the trial court had no power to enter a default under these circumstances, then the rule has no purpose, and the answers to interrogatories could never be compelled. Whether or not defendant had an answer [to the plaintiffs petition] on file is not in point. Under the aggravated circumstances showing defendant’s utter disregard for various orders of court and notice of motions, the trial court exercised its discretionary power to enter judgment by default for defendant’s failure to answer interrogatories.” Id. at 430.

Capsulizing the evidence heretofore set out, we note that plaintiff’s answers to defendants’ interrogatories were more than three months delinquent when Hackworth wrote plaintiff on February 4, 1983, sending her a duplicate set of the interrogatories and pointing out to her that they had to be answered before the suit could proceed.

The interrogatories remained unanswered for the next two months, and on April 18, 1983, after having been notified by Hackworth that he intended to request a trial setting, defendants filed their motion for sanctions.

This prompted Hackworth to write plaintiff on April 21, 1983, warning her that it was absolutely necessary that she make an immediate appointment to confer with him and answer the interrogatories. This letter led to plaintiff’s conference with Hack-worth on April 25, 1983, in which she supplied the information to answer the interrogatories.

The trial court’s first order compelling plaintiff to answer the interrogatories was entered May 2, 1983. As noted earlier, it commanded plaintiff to file the answers within 20 days and provided that if she failed to do so, her petition would be dismissed without further order or notice.

Hackworth, on May 5, 1983, mailed plaintiff the typewritten answers prepared in his office. In an accompanying letter, Hackworth implored plaintiff to sign the answers and return them immediately, as the trial court would dismiss her petition unless the answers were filed within 20 days.

On May 10, 1983, Hackworth, having been notified by plaintiff that she was discharging him as her attorney, again warned plaintiff by letter that her answers to the interrogatories had to be filed by May 22, 1983. That date, as we have seen, passed with no answers being filed by plaintiff.

On June 20, 1983, almost a month past the deadline of May 22, the trial court entered its second order, extending the deadline to July 5, 1983. This order, like the first, provided that if the answers were not filed by the deadline, plaintiff’s petition would be dismissed without further order or notice. A copy of this order was mailed to plaintiff at the same address to which all of Hackworth’s correspondence had been directed. The trial court could reasonably find that plaintiff received all of these mailings, as none of them were ever returned to the sender.

In sum, there is persuasive evidence that plaintiff was warned by Hackworth in at least four letters that she must answer the interrogatories. Two of the letters specifically put plaintiff on notice about the first court-set deadline (May 22, 1983). Hack-worth’s letter of May 10, 1983, written after he had been notified by plaintiff that she had discharged him, even offered to file the answers for her if she would simply return them to his office.

By the time the May 22, 1983, deadline arrived, Hackworth’s motion for leave to withdraw as plaintiff’s attorney was on file. Whether that is why the trial court imposed no sanctions on plaintiff for failure to honor the May 22 deadline is not revealed.

In any event, the trial court, at the time it formally allowed Hackworth to withdraw (June 20, 1983), entered the sua sponte order allowing plaintiff until July 5, 1983, to answer the interrogatories. The trial court was careful to ensure that a copy of that order was sent to plaintiff.

The trial court could have reasonably found that plaintiff received the typewritten answers to the interrogatories a day or two after May 5, 1983, the day they were mailed from Hackworth’s office. Plaintiff, at the hearing on August 4, 1983, did not complain that any of the typewritten answers were incorrect, nor did she have any excuse for keeping them two months without filing them. Indeed, the answers ultimately filed by plaintiff were evidently the same ones prepared in Hackworth’s office.

On this evidence, it was within the trial court’s sound discretion to order plaintiff’s cause of action dismissed with prejudice. Plaintiff’s failure to answer defendants’ interrogatories, despite at least four warnings by Hackworth and two orders by the court, manifests the same contumacious and deliberate disregard for the trial court’s authority found in Portell, 643 S.W.2d 18, Wipke, 622 S.W.2d 772, and Reagan, 382 S.W.2d 426. It was consequently unnecessary for the trial court to determine whether, or to what extent, defendants were prejudiced by plaintiff’s failure to answer the interrogatories by the final deadline fixed by the court. The trial court’s action was authorized by Rule 61.-01(b)(1) and (2), Missouri Rules of Civil Procedure (14th ed. 1983), and we find no abuse of discretion. Plaintiff’s first point is, accordingly, denied.

Plaintiff’s second assignment of error maintains the trial court abused its discretion in failing to impose “less drastic” sanctions on her. Plaintiff suggests that if her claim had gone to trial, and if, at trial, defendants had demonstrated that they were prejudiced by plaintiff’s failure to seasonably answer the interrogatories, the trial court could have, at that time, chosen a “course of action” to alleviate the prejudice. Plaintiff adds that she was unrepresented by counsel at the time the answers were due and that there was no evidence that her failure to file her answers stemmed from a contumacious and deliberate disregard for the trial court’s authority.

What we have said in considering plaintiff’s first assignment of error is likewise pertinent to these contentions. The trial court and defendants were not obliged to indulge plaintiff’s disregard of the discovery rules until trial. Defendants were entitled to have their interrogatories answered by the ultimate deadline fixed by the court, so that the information requested could be used for further discovery and trial preparation. To hold that the trial court should have waited until trial to deal with plaintiff’s refusal to answer the interrogatories would emasculate the discovery rules.

As to plaintiff’s insistence that she was innocent of any contumacious and deliberate disregard for the trial court’s authority, we note that her avowed ignorance of the importance of filing answers within the time ordered by the court was in sharp conflict with Hackworth’s testimony that he repeatedly warned her about this by letter. The trial court was not required to believe plaintiff’s vague and evasive testimony. Whitenton v. Whitenton, 659 S.W.2d 542, 546[2] (Mo.App.1983); Prudential Property and Casualty Ins. Co., Inc. v. Cole, 586 S.W.2d 433, 434[3] (Mo.App.1979). Moreover, the typewritten answers were, according to Hackworth, in plaintiff’s hands by May 6 or 7, 1983. All she had to do was sign them under oath and file them. That is manifest from the fact that the answers, when belatedly filed, were the same ones prepared and typed at Hackworth’s office.

Bearing in mind that it was within the trial court’s sound discretion to impose the sanctions here applied, Portell, 643 S.W.2d at 20; Wipke, 622 S.W.2d at 774, and finding no abuse of discretion in this instance, we deny plaintiffs second assignment of error.

The order of dismissal is affirmed.

PREWITT, C.J., and TITUS, FLANI-GAN and MAUS, JJ., concur.

      . Clerk of the Circuit Court of Oregon County.

      . Evidently Farm Bureau Insurance Company. Both defendants, in answering interrogatories, stated they had insurance with that company which might be liable to satisfy all or part of any judgment against them.

      . Although it may be arguable whether the order of July 5, 1983, dismissed plaintiffs claim, any uncertainty about that has become moot, as the trial court's order of December 5, 1983, from which plaintiff appeals, specifically dismisses her cause of action with prejudice.


author: MAUS, Judge.

text:
    Karl F. BLANKENSHIP, Petitioner-Respondent-Appellant, v. Debra S. BLANKENSHIP, Respondent-Movant-Respondent.
    No. 13556.
    Missouri Court of Appeals, Southern District, Division Three.
    April 16, 1985.
    Thomas H. Hearne, Steelman, Hearne & Hearne, Salem, for petitioner-respondent-appellant.
    J.D. Rohrer, Woodward, Rohrer & Maz-zei, Steelville, for respondent-movant-re-spondent.
   MAUS, Judge.

This is an appeal from a judgment of and order for commitment for contempt. Appellant-husband was found in contempt for failure to pay respondent-wife the sum of $2,190 assertedly due by reason of his failure to make six monthly payments upon a note secured by a home owned by the parties.

The marriage of the parties was dissolved March 11, 1982. At the time of the dissolution, the parties owned the home in question. A separation agreement, incorporated into the decree, stated in pertinent part:

9. [T]he marital home ... shall be sold, ... the net proceeds of said sale shall be divided equally between husband and wife.
10. The parties mutually agree that said real estate shall be placed on the market for sale upon the execution of this Separation Agreement and Property Settlement until July 1, 1983....
11. Husband hereby agrees to make all mortgage payments on said real estate until July 1, 1983 or until time of sale of said real estate and marital home whichever date comes first.
12. [H]usband and wife shall split equally all amounts due for real estate taxes and house insurance on said real estate and marital home, provided, that if either husband or wife fails to comply with the terms of this agreement payments may be made by the complying party which would be offset against the share of the non-complying party at the time of distribution of the net proceeds of the sale of said real estate and marital home.

From the date of the dissolution until January, 1983, the husband made those payments of $365 per month. Before January, 1983, the parties refinanced the indebtedness secured by the home. As a result, $4,522.64 was deposited in an account at a local bank. The next six monthly payments of $365 each were paid from that account. From the account the wife admittedly received $500 to $600 in cash. The husband contended $1100. Her personal property taxes of $60 were paid from that account. Taxes of $306 and insurance of $105 for which the parties were equally obligated were also paid from the account. $475 was said to have been paid for medical expenses for the parties’ daughter which may or may not have been the obligation of the husband. $257 was withdrawn for the husband’s L.P. gas bill. The disposition of the remaining funds was not clearly established.

The home was sold at auction in September, 1983. The husband contended additional interest of approximately $450 accrued to him by reason of the wife’s wrongful refusal to authorize an earlier auction. The proceeds of the sale were equally divided between the parties. The wife contended she should have first been paid $2190 representing the six payments made from the fund.

By her motion that originated this cause, the wife asked the trial court to hold the husband in contempt for failure to pay her that amount. A hearing was held on that motion on October 4, 1983. That hearing resulted in evidence from which the above summary was drawn. There was no evidence directly dealing with ability of the husband to pay $2190. During the hearing the trial court held that evidence concerning the impetus for the refinancing was not germane. However, in the judgment of contempt, the wife’s consent to the refinancing was found to have been the result of coercion by the husband. That judgment concluded the husband failed to make six payments of the said indebtedness and thereby was indebted to the wife in the amount of $2190.

The husband does not directly complain about the merits of the calculation upon which the judgment of contempt is based. He presents two procedural points.

He first contends the trial court erred by failing to inquire if the husband was able to make the required payments or intentionally placed himself in a position where he could not comply with the court’s order. That abstract point is apparently based upon a cautionary direction in State ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo. banc 1976). The statement was repeated in Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976). That direction could be taken as establishing the burden of proof on that issue. However, in Teefey the court expressly declined to fix that burden.

The problem was presented in a proceeding under § 452.345 in In Re Marriage of Vanet, 544 S.W.2d 236 (Mo.App.1976). In that case the Western District, in a careful analytical opinion, held that a petitioner makes a prima facie case by proof of the judgment requiring payment of a fixed amount and nonpayment thereof. Inability to pay was declared to be in the nature of an affirmative defense. The point is discussed in an annotation. Annot., Contempt — Alimony or Child Support, 53 A.L.R.2d 591 (1957). Vanet has been followed in the Eastern District. Hopkins v. Hopkins, 626 S.W.2d 389 (Mo.App.1981); Huber v. Huber, 649 S.W.2d 955 (Mo.App.1983). It has been held to be applicable to contempt proceedings invoked under the inherent power of the court. Hankey v. Hankey, 623 S.W.2d 35 (Mo.App.1981). The point has not been before this court. It is not now before the court. Certainly, the husband’s contention concerning what if any amount was due the wife was arguably reasonable. The order adjudging the husband to be in contempt as a part of the judgment determining the amount due was premature. Payne v. Payne, 635 S.W.2d 18 (Mo. banc 1982).

The husband’s second point is that the judgment of contempt and commitment for contempt did not recite with required particularity the facts and circumstances constituting the contempt. That requirement was recently clearly stated in a criminal contempt proceeding. Ex Parte Brown, 530 S.W.2d 228 (Mo. banc 1975). It has been declared to be applicable to civil contempt. In re Marriage of Gehlert, 629 S.W.2d 503 (Mo.App.1981); Leslie v. Leslie, 620 S.W.2d 48 (Mo.App.1981); Ex Parte Ryan, 607 S.W.2d 888 (Mo.App.1980). The recitation of legal conclusions is not sufficient. Brown v. Brown, 646 S.W.2d 888 (Mo.App.1983).

The husband contended that he made the payment through the funds deposited to the account. As a corollary he argues the wife directly or indirectly received so much more of the funds than he that he is entitled to recognition for having paid them. It is obvious that the wife in effect received one half the reduction of the principal of the refinanced indebtedness resulting from the six payments in question. If the husband’s only personal use of the funds was the payment of an L.P. gas bill of $257, it is also obviously inequitable not to consider the extent of the wife’s use of the remainder of the funds. She personally received cash of $500 or $1100. To determine the amount of those funds to be charged to her requires a calculation this court cannot make from the record. To determine the amount due her, if any, may require consideration of her delay in authorizing the sale. The basic facts which could cause the husband to be in contempt is the use of those funds. Neither the judgment nor the commitment contains a finding or recital pertaining to that use. In view of the evidence and husband’s contention, the conclusion the husband failed to make the six monthly payments and was indebted to the wife in the amount of $2190 is not sufficient. Leslie v. Leslie, supra; Brown v. Brown, supra. The judgment is reversed and the cause remanded.

PREWITT, C.J., CROW, P.J., and TITUS and FLANIGAN, JJ., concur.


author: REINHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Allen PRICE, Appellant.
    No. 47775.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 16, 1985.

      David Lawrence Hoven, Private Atty., Ballwin, for appellant.
    Kristie Lynne Green, Atty. Gen., Jefferson City, for respondent.
   REINHARD, Chief Judge.

Defendant was convicted by a jury of first degree robbery and armed criminal action. The trial court sentenced defendant to twenty years on the first degree robbery charge and five years on the armed criminal action charge, the sentences to run consecutively. On appeal he argues that (1) the trial court erred in overruling defendant’s motion to suppress identification; and (2) the trial court erred in refusing to submit a separate identity instruction. We find no error and affirm the judgment of conviction.

On November 17, 1982, a man entered the Utah Food Market in the city of St. Louis and ordered a carton of cigarettes from the night manager, Mary Lotz. As she turned to hand the cigarettes to the man, he was pointing a gun at her and demanded money. Lotz gave him the money out of the cash register. The man then ordered her to lie down behind the counter, and he fled. Lotz estimated that the incident took about five minutes.

Following the robbery, Lotz called the police and gave them a description of the man, including the fact that he had two purple scars on his right cheek. Approximately four days after the robbery, the police called Lotz to the station for the purpose of viewing a lineup. Lotz picked defendant as the robber out of the five men in the lineup. The five men were of similar height, weight, and dress, and each had a mustache. Lotz recognized two purple scars on the defendant’s cheek, and also noticed bruises and cuts on the defendant’s face which were not on the robber.

Defendant was charged with first degree robbery and armed criminal action. At trial Lotz testified about the robbery and the lineup. She testified that although defendant was the only man in the lineup with a scarred and bruised face, she was not attracted to him because of his facial damage but because “[she] recognized him as the man that robbed [her].” Lotz also made an in-court identification of the defendant. The defendant did not testify.

Defendant first contends that the pre-trial lineup was impermissibly suggestive, thus rendering the in-court identification unreliable. Defendant asserts that the lineup was suggestive because he was the only man with a scarred and bruised face which attracted the witness’ attention to him.

To suppress an in-court identification, two questions must be answered affirmatively: (1) whether the pre-trial identification procedures employed by the police were impermissibly suggestive, and (2) if so, whether they were so impermissibly suggestive as to create a very substantial likelihood of an irreparable misidentification at trial. These questions are to be answered in light of the “totality of the circumstances.” State v. Higgins, 592 S.W.2d 151, 159 (Mo. banc 1979), appeal dismissed 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980).

We do not agree that the pre-trial lineup procedure was impermissibly suggestive. Lotz was shown five men of similar height, weight and dress. Each had a mustache. It is true that defendant was the only man with a scarred and bruised face. But dissimilarity in physical appearance between individuals composing a lineup, standing alone, is insufficient to establish impermissible suggestiveness. State v. Pennington, 618 S.W.2d 614, 620 (1981); State v. Burns, 671 S.W.2d 306, 310 (Mo.App.1984); State v. Haymon, 639 S.W.2d 843, 845 (Mo.App.1982). This case is virtually identical to Haymon where the defendant had a severely scarred chin. There, the court stated “if the defendant has some type of inherent physical abnormality or distinctive appearance, no lineup or photographic array can provide subjects reasonably close in appearance. In such case, as we have here, the likelihood of misidentifi-cation may be nonexistent, regardless of the circumstances of the confrontation.”

It is unreasonable to expect the police to assemble a lineup where each man has a facial scar. All that is required is a reasonable effort to harmonize the lineup. State v. Burns, 671 S.W.2d at 310.

We also find that there was an independent basis for admitting the in-court identification, since it was reliable regardless of any alleged suggestiveness in the pre-trial lineup. In considering the reliability of in-court identification testimony several factors should be considered under the totality of the circumstances: (1) The opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. State v. Higgins, 592 S.W.2d 151, 160 (Mo. banc 1979), appeal dismissed 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980). Considering these factors in the present case, it is clear that Lotz’ in-court identification was reliable. She had five minutes to observe the robber during the crime, separated only by a counter. She was attentive during the robbery, as evidenced by her detailed description and her testimony that she remained “amazingly calm” during the incident. She identified the defendant in court without hesitation, and testified that she recognized him at the pre-trial lineup, which was only four days after the robbery. For these reasons, we hold that the pre-trial lineup was not impermissibly suggestive, and in any event the witness’ in-court identification was reliable.

The defendant’s second point is that the trial court erred in refusing to submit a separate cautionary identity instruction based on that in United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972). No such instruction is required where other MAI-CR2d instructions have adequately presented defendant’s theory of innocence. We have addressed and rejected this point numerous times. See, e.g., State v. Moton, 671 S.W.2d 347 (Mo.App.1984); State v. McCain, 662 S.W.2d 864 (Mo.App.1983); State v. Cotton, 660 S.W.2d 365 (Mo.App.1983); State v. Hutton, 645 S.W.2d 22 (Mo.App.1982).

Judgment affirmed.

DOWD and CRANDALL, JJ., concur.