author: STEPHENSON, Justice. LEIBSON, Justice,

text:
    Roy Lee SCOTT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Nov. 15, 1984.
    Rehearing Denied Feb. 28, 1985.

      David L. Yewell, David C. Condon, Rummage, Kamuf, Yewell & Pace, Owensboro, for appellant.
    David L. Armstrong, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

Roy Lee Scott was convicted of murder and sentenced to forty years’ imprisonment. He appeals as a matter of right. We reverse.

The remains of Scott’s wife, Joyce Scott, were found in a sinkhole on the Scott farm in March 1983. Joyce Scott had disappeared in July 1982. A trial resulted in the conviction of Scott for murder.

Scott asserts four errors in the trial.

First Scott asserts that the Commonwealth violated his right to due process by destroying evidence.

As background to this assertion, Scott was arrested on March 8 or 9, and on March 16, his attorney filed a motion in the trial court for an order permitting Scott to have an independent examination of the body. The motion was set for hearing on March 23.

On March 9, a Dr. Wolfe, the state forensic anthropologist, went to the sinkhole where the body was discovered and made a preliminary examination of the body and adjacent area. The body was then sent from Bowling Green to Louisville for a complete forensic examination. After the examination was completed, the body was released to a family member and was cremated on March 23. There is no suggestion of bad faith on the part of the Commonwealth’s attorney. The coroner was not notified of the request and had no reason to delay the release of the body. We are of the opinion that in the circumstances presented here there is no reversible error. If there was a duty to notify the coroner before the hearing, it was borne equally by Scott’s lawyer. The motion to suppress the testimony of Dr. Wolfe was properly overruled.

In addition it is clear that an abundance of evidence remained available. Scott claims the identity of the victim, cause of death and time of death could only be proven by the body. In the course of Dr. Wolfe’s testimony, he introduced slides showing the sinkhole, condition of the body, entrance and exit wounds and single buckshot wounds. X-rays were introduced from which dental records were compared to identify Joyce Scott. X-rays were further introduced showing buckshot in the skull and other areas of the body.

The time of death, summer of 1982, was determined by insect larvae which are present only in the summer. A can containing some larvae was introduced into evidence.

A buckshot found under a decomposed part of the body was introduced into evidence. There was an extensive forensic report. Scott would be in far better position to argue his point if he had an expert examine the material introduced as exhibits to determine if anything else was needed for an independent examination. This would be a preferable posture to the theoretical argument presented by Scott, assuming that all evidence had been destroyed.

The principal basis of examination of Dr. Wolfe by Scott’s trial counsel appeared to be an inquiry as to Dr. Wolfe’s opinion as to whether the nightgown worn by the body was suitable for summer weather.

Second Scott asserts the trial court erroneously permitted evidence of other crimes into testimony.

There was testimony that a license plate, discovered buried about eighteen inches above the body of Joyce Scott, was registered to a stolen van. There was other testimony that a van brought in by Scott from out-of-state was the stolen van to which the license plate belonged and the van was registered in Scott’s name.

We are of the opinion the testimony was proper. The fact that the van was stolen was incidental to the other testimony which tended to place Scott at the burial site and to furnish a motive for burying the license plate.

Next Scott asserts improper testimony about sexual misconduct with his daughter and stepdaughter. We are of the opinion this testimony was improper and should have been excluded. The Commonwealth argues motive. The difficulty with this argument is that the record does not show that Joyce Scott had any knowledge of this alleged misconduct, and thus no motive could be imputed to Scott. This testimony was highly prejudicial and was erroneously admitted into evidence.

Finally the most egregious error, the Commonwealth was permitted to introduce testimony of various instances of falsehoods told by Scott. In effect, the Commonwealth attacked his reputation for truth and veracity. This testimony was introduced in chief and was doubly damned for Scott did not take the witness stand and thus put his reputation for truth and veracity in issue.

We should not be required to restate so ancient a rule. This rule was stated in McDonald v. Commonwealth, 86 Ky. 10, 4 S.W. 687, 688 (1887), as follows:

“The appellant offered himself as a witness, and, being examined, his general character for truth and veracity was impeached by the state. The undoubted and general rule in criminal practice is that the state cannot place the character of the accused in issue, unless the latter shall have first attempted to establish his character by proof. This rule is founded in sound policy, and prevents those charged with crime from being punished because of their bad character, rather than on the testimony adduced as to their guilt of the particular offense charged. Nor has this rule been repealed, expressly or by implication, by reason of the statute permitting the accused to testify on his own behalf. When he comes before the jury as a witness, although charged with the offense, he subjects himself to that character of examination that can be made of any other witness; and his inclination to tell the truth, or to swear falsely, may be shown by the commonwealth in the usual mode of impeaching the general character of a witness for truth and veracity.”

The rule is restated in Fry v. Commonwealth, 259 Ky. 387, 82 S.W.2d 431, 440 (1935), and noted in Buchanan v. Commonwealth, 304 Ky. 225, 200 S.W.2d 459 (1947), that the rule is codified in the Civil Code of Practice § 597. This has been carried forward to CR 43.07, permitting impeachment by evidence that in general reputation for untruthfulness renders him unworthy of belief.

The major premise is, of course, that the party has first taken the witness stand and testified, thus putting his veracity in issue as any other witness.

We are of the opinion these last two errors are so prejudicial in the circumstances of this case that Scott is entitled to a new trial.

The other assignments of error do not merit comment.

The judgment is reversed with directions that Scott be granted a new trial.

STEPHENS, C.J., and AKER, GANT, STEPHENSON, VANCE and WINTER-SHEIMER, JJ., concur.

LEIBSON, J., dissents and files a dissenting opinion.

LEIBSON, Justice,

dissenting.

Respectfully, I dissent from so much of the majority opinion as finds that the Commonwealth committed no error when it permitted the victim’s body to be destroyed while the defendant’s motion for an independent examination of the body was pending.

At the time defense counsel moved the court for permission to examine the body, and noticed the Commonwealth Attorney accordingly, the body was in the custody of the State Forensic Anthropologist, Dr. David Wolfe. There is no question but that, upon receipt of the motion, the Commonwealth Attorney could have notified Dr. Wolfe to hold the body, which would have prevented destruction of the evidence.

It is no answer to say that, “if there was a duty to notify the coroner before the hearing [on the motion], it was borne equally by Scott’s lawyer.” Majority Opinion, p. 185. The Commonwealth, through its officials, had both possession and control of the body. There is no doubt in my mind but that state officials would respect a request from the Commonwealth Attorney to hold the body pending a decision on the defense’s motion. On the other hand, there is no reason to suspect that defense counsel had access to information as to location of the body, or, if he did, any authority to control its disposition.

The testimony at trial from the state’s forensic anthropologist, which went unchallenged, was the principal evidence against the defendant. His testimony identified the body, established that the victim was killed by two shots from a shotgun, and placed the time of death in the summer of 1982, consistent with the time of her disappearance. Both the time of death and the weapon and the ammunition which were used to kill her were important evidence open to question on independent examination of the body.

Thus the Commonwealth destroyed important, material evidence, and denied the defendant the right to conduct tests in his own defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and a host of other eases hold that where the prosecution “witholds evidence on demand of an accused which, if made available, would [or might] tend to exculpate him or reduce the penalty,” such is a violation of due process. 373 U.S. at 87-88, 83 S.Ct. at 1196-1197.

The issue is not whether the appellant can prove that an independent examination of the body would have produced evidence favorable to the appellant. The principle which we should apply here is thus stated in Stipp v. State, Fla.App., 371 So.2d 712, 713 (1979):

“It is wrong for the state to unnecessarily destroy the most critical inculpatory evidence in its case against an accused and then to be allowed to introduce essentially irrefutable testimony of the most damaging nature against the accused.”

Unfortunately, were we to exclude the evidence from the state’s forensic anthropologist, the remaining evidence falls far short of a submissible case. The Commonwealth concedes that without this evidence, it has no case. Thus, a proper disposition in the circumstances is not only to reverse and remand for a new trial because of trial errors, as ordered by the Majority Opinion, but to reverse and dismiss.


source: Caselaw Access Project

author: McDONALD, Judge:

license: Public Domain

text:
    Dr. Robert H. CULLEN, M.D. and Robert H. Cullen, P.S.C., Appellants, v. SOUTH EAST COAL COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Dec. 9, 1983.
    Rehearing Denied March 2, 1984.
    Discretionary Review Denied by Supreme Court Nov. 9, 1984.

      Forrest E. Cook, Whitesburg, for appellants.
    James W. Craft, Polly, Craft, Asher & Smallwood, Whitesburg, for appellee.
    Before DUNN, LESTER and MCDONALD, JJ.
   McDONALD, Judge:

This appeal comes to us from a directed verdict granted in favor of South East Coal Company. Dr. Robert Cullen had instituted an action against South East Coal Company for interference with prospective business advantage and libel. The directed verdict was granted after Dr. Cullen’s proof was completed and the jury heard the following facts:

Facts

Dr. Cullen was born as an American in the Philippines. He studied medicine in the Philippines and took his internship in Chicago and then his residency in southwest Virginia. After duty in the Air Force he took over a medical practice in Whitesburg, Kentucky. In February, 1976, he incorporated as a public service corporation (P.S. C.).

South East Coal Company is one of the oldest and largest employers in and around Letcher County, Kentucky. In April, 1977, South East Coal initiated a very progressive and foresighted medical and health benefits plan for its employees and members of their families. There were about 700 people in the plan, and under the provisions of the plan South East Coal paid 100 percent of the participants’ health care costs. Cards were issued to the employees and their family members, who were authorized to present the card to the health care provider and the bill's would be forwarded to South East Coal Company.

In the latter part of 1977, Dr. Cullen had occasion to treat a family for lice at his clinic. Bills were forwarded to South East Coal Company which included one made by mistake for the father of the family whom Dr. Cullen admittedly did not treat.

On November 3, 1977, Margaret Trent, an employee of South East Coal, called Dr. Cullen about the bill, and an argument between the two resulted. Dr. Cullen admitted the error on the billing, but he was accused of charging too much. According to Dr. Cullen’s testimony, Mrs. Trent said, “I’m going to do something about that.” She then banged the phone down which ended the conversation.

Later, the same day, a memo was given to all employees and signed by the vice-president of South East Coal Company, which said, “Effective November 5, 1977, Dr. Robert Cullen, 108 Webb Avenue, Whitesburg, Kentucky 41858, will be removed from the list of approved doctors and clinics to serve our employees under our health benefits card. No bills will be accepted from Dr. Cullen after this date.”

The evidence at trial showed there was no approved list of physicians or clinics maintained by South East Coal Company either before or after this incident. However, as a result of the memo, 151 employees retrieved their files from Dr. Cullen and another 61 requested their files be sent elsewhere. Dr. Cullen’s practice dropped from 30 to 40 patients per day to 15 to 20. Monetarily, this translated into a claim for damages for loss in income from November, 1977, to the time of trial, in the sum of $87,553.17. Dr. Cullen testified that some patients inquired as to why the coal company would not let them be treated by him. Naturally, the employees could choose to be treated by Dr. Cullen but they would not have their bills paid by the coal company.

Eventually, Dr. Cullen moved from the Whitesburg area as a result of the appel-lee’s action against him and established a clinic in Pound, Virginia.

The trial court dismissed the case without hearing any testimony in defense. The trial court found the memo to be informational and privileged. The coal company argued that the abuse of the plan provided justification for its action, although there was no evidence of any abuse other than the one instance with Dr. Cullen. Dr. Cullen contends that he made out a prima facie case sufficient to overcome a directed verdict.

We will take Dr. Cullen’s assertions of error as they are presented.

I

THAT PLAINTIFF ESTABLISHED A PRIMA FACIE TORTIOUS INTERFERENCE WITH A PROSPECTIVE BUSINESS ADVANTAGE AND THE TRIAL COURT ERRED IN DIRECTING A VERDICT AT THE CLOSE OF THE PLAINTIFF’S PROOF.

For our purposes, 'we must examine the trial court’s directing a verdict in the light most favorable to Dr. Cullen because he was the nonmoving party to the motion. With that in mind we will look to his argument.

Dr. Cullen relies in particular on the lan-„ guage in Carmichael-Lynch-Nolan etc. v. Bennett etc., Ky.App., 561 S.W.2d 99 (1977), which states, “A party damaged by interference with his contract may recover even though he cannot establish fraud or coercion or a master-servant relationship.” This broad language, if considered out of context, would lead one to support Dr. Cullen’s position. However, the case further explains the overall basis for this type of tortious conduct which leads us to consider Restatement (Second) of Torts § 766B, Intentional Interference with Prospective Contractual Relation (1979):

One who intentionally and improperly interferes with another’s prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of
(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or
(b) preventing the other from acquiring or continuing the prospective relation. [Emphasis ours.]

The key to the above is the phrase, “and improperly interferes.” It is our conclusion that Dr. Cullen failed to prove the element of improper interference. We accept the fact that South East Coal intentionally sent the memorandum to its employees to accomplish the very thing that it did accomplish: namely, the refusal of the employees and their families to be treated by Dr. Cullen in the future. The improper interference requirement, however, requires closer analysis. In order to arrive at an improper interference conclusion we must consider South East Coal Company’s motive, the interest that it is trying to advance or protect, the nature of its conduct, the means used to interfere, and whether or not the interference was based upon malice.

Using the criteria just mentioned, we know that South East Coal had an interest in seeking that its totally subsidized health plan was not abused or taken advantage of. Its interest was self-protection and its conduct was not libelous per se, or violent. The means used by the coal company of advising its employees was that which was most reasonable, namely, by memorandum, and we cannot say that any malice was shown or proven by Dr. Cullen after the completion of his proof. So, in this regard, we conclude that the trial court was correct in granting a directed verdict.

II

THAT DR. CULLEN’S PROOF PRESENTED ISSUES OF FACT FOR JURY SUBMISSION ON LIBEL PER QUOD, AND THE TRIAL COURT ERRED IN DIRECTING A VERDICT AT THE CLOSE OF THE PLAINTIFF’S EVIDENCE.

Dr. Cullen’s argument on this point is that while the memorandum distributed to the employees was not libel per se, it was libel per quod by innuendo. The case relied upon is Sweeney & Co. v. Brown, 249 Ky. 116, 60 S.W.2d 381 (1933). The case explains libel per quod as being,

words reasonably susceptible of defamatory meaning as well as an innocent one, and may be defamatory by reason of their imputation, or by reason of certain extrinsic facts, connoting they were meant to be, and were, understood by the general public, or those reading them, to have such meaning, and that on receiving them were so construed.

249 Ky. at 120-21, 60 S.W.2d 381.

Words (libelous per quod) require evidence of pecuniary loss arising from the use thereof, other than their use to sustain a recovery. Sweeney & Co., supra, further stresses the point, “An innuendo, however, cannot enlarge or add to the sense or effect of the words charged to be libelous, or impute to them a meaning not warranted by the words themselves_” 249 Ky. at 121-22, 60 S.W.2d 381.

In this regard, Dr. Cullen makes much of the fact that there was no approved list of physicians or clinics maintained by the company and that its lie to this effect is indicative of malice or ill will in the case. We view it as simply a “nice” way of informing the employees. Our conclusion is that there was nothing defamatory in the memorandum sent to the employees. Again, we support the trial judge granting the directed verdict.

Because we have sustained the trial court in its determination that a directed verdict in favor of the South East Coal Company was proper on the grounds that a prima facie case had not been made out by Dr. Cullen, it is not necessary that we discuss issues 3 and 4 lodged by the appellants.

Judgment affirmed.

All concur.


text:
    BTC LEASING, INC., a/k/a Bulk Transit Leasing Corp., Inc., Appellant, v. Billy R. MARTIN, Appellee.
    Court of Appeals of Kentucky.
    April 20, 1984.
    As Modified On Rehearing Aug. 24, 1984.
    Discretionary Review Denied by Supreme Court March 13, 1985.

      M. Gail Wilson, Bertram & Wilson, Jamestown, for appellant.
    James Frazer, Frazer & Jones, Monticello, for appellee.
    Before McDONALD, REYNOLDS and WHITE, JJ.
   McDONALD, Judge:

This appeal is about a houseboat subjected to a mechanics’ or materialmen’s lien and appellee Billy R. Martin’s attempt to enforce that lien against the appellant, BTC Leasing, Inc., a/k/a Bulk Transit Leasing Corporation, Inc., a purchaser later in time to its creation. In examining the various statutes purportedly granting such a lien interest in the boat, we have concluded that Martin failed to assert his rights under the proper statute. It follows that BTC cannot, therefore, be charged with constructive notice of the lien. Accordingly, we reverse the judgment of the Russell Circuit Court.

Billy R. Martin acquired his interest in the houseboat, a craft sixty feet in length and equipped with a 135 horsepower Chrysler outboard motor, on or about December 1,1978, when he filed a lien statement with the Wayne County Clerk. The basis of Martin’s lien was for substantial repair and remodeling work done on the boat from November, 1977, to July, 1978, for which he had not been paid by its then owner, William Burkett. K.R.S. 376.270 and K.R.S. 376.360 were alternately cited in the lien statement as the statutory provisions creating the lien in Martin’s favor. At this time, the houseboat, while located in Wayne County at the Conley Bottom Resort boat dock, was registered in Pulaski County. No notice of the lien was ever indicated on the registration statement, however, as those documents are generally not utilized for such purposes.

Within days of the initial filing of the lien, Martin sought to enforce the lien by intervening in an action concerning title to the houseboat pending against William Burkett in Wayne Circuit Court. (78-CI-199: Cedar Lakes Foods of Tennessee, Inc. v. William Burkett). By the time that dispute went to trial, the original plaintiff had withdrawn from the litigation to be replaced by Martin. This proceeding was vigorously contested by Burkett as the first trial resulted in a deadlocked jury. A second trial held on August 24, 1982, reached a much different conclusion because Burkett chose not to defend the action. Consequently, the Wayne Circuit Court, on September 8, 1982, entered judgment against Burkett and specifically found that he was indebted to the appellee to the amount of $17,000, and that the lien against the houseboat was valid and enforceable through a sale by the Master Commissioner for Wayne County.

The most plausible explanation for Burk-ett’s decision to discontinue his defense of the action in Wayne Circuit Court is that in the intervening two years between the first and second trials, he had completely divested himself of any interest in the houseboat in favor of his ex-wife, Carolyn Burkett Lynch. This was accomplished by a property division in a divorce action between them. The actual transfer of title to Carolyn Lynch apparently took place sometime in the latter half of 1980 or the early months of 1981 as her name was listed as the owner of record on a certificate of registration for the houseboat issued by the circuit court clerk of Pulaski County on March 3, 1981.

Shortly after acquiring title, Carolyn Lynch, despite the pendency of Martin’s claim, removed the boat from Wayne County to Russell County where it was moored at Alligator Boat Dock Number 2 on Lake Cumberland. In the ensuing months, she then entered into negotiations with BTC Leasing, Inc., for the sale of the boat. As a preliminary to the final purchase, BTC tried to discover the existence of any liens or other encumbrances upon the houseboat. Unaware of its earlier history in Wayne County, BTC logically made no inspection of the records in that county. BTC did, however, research the clerk’s records in both Russell and Pulaski Counties and got assurances of good • title from Carolyn Lynch herself. When these efforts produced no evidence of any cloud upon her title, BTC proceeded to buy the boat at a price of $27,000 on October 28, 1981.

BTC’s possession of the boat remained undisturbed until early September, 1982. Then Martin received a favorable jury verdict in the suit to enforce the lien in Wayne County and was awaiting the actual entry of judgment. Realizing that the removal of the houseboat from Wayne County would render meaningless any forthcoming order for a commissioner’s sale, Martin instituted this action before the Russell Circuit Court. Along with seeking a judicial sale in Russell Circuit Court, Martin requested and was granted a temporary restraining order, and later an injunction, prohibiting BTC from moving the boat from its dock on Lake Cumberland. Whether BTC could qualify as a bona fide purchaser which took without notice of the outstanding lien was identified as the one true issue which would be determinative of Martin’s claim. Both parties moved for summary judgment. The Russell Circuit Court granted Martin’s motion, concluding specifically that Martin’s lien was properly filed with the Wayne County Clerk according to K.R.S. 376.270. As a result, BTC was charged with constructive notice of the lien and could not claim the status of a bona fide purchaser. A commissioner’s sale in Russell County was ordered, but BTC promptly sought this appeal before the execution of that order.

BTC’S FIRST ASSIGNMENT OF ERROR CONTENDS THAT THE ENTRY OF SUMMARY JUDGMENT WAS IMPROPER DUE TO THE EXISTENCE OF A GENUINE ISSUE OF FACT.

This position is indeed odd in light of the fact that BTC also moved the trial court to utilize a summary judgment on its own behalf. Having taken the stance by summary judgment motion that there was no genuine issue of fact, we feel that BTC should not now be permitted to assume a completely inconsistent posture to defeat the decision of the trial court by claiming there was a genuine issue of fact. Additionally, the circumstances of this case clearly demonstrate that this is a dispute ideally suited to resolution by summary judgment proceeding. While BTC’s brief makes vague references to unknown facts concerning the manner in which Carolyn Burkett Lynch acquired title to the houseboat, those facts, even if admitted, bear no relation to the real issue, namely, whether BTC bought the boat without notice of Martin’s lien, thus qualifying as a bona fide purchaser. This being essentially a question of law, and as the facts surrounding BTC’s acquisition of the boat are undisputed, the trial court properly considered the case on a motion for summary judgment. Bell v. Harmon, Ky., 284 S.W.2d 812 (1955), and Bonded Elevator, Inc. v. First National Bank of Louisville, Ky., 680 S.W.2d 124 (1983).

NEXT, BTC ASSERTS THAT THE TRIAL COURT ERRED IN ITS APPLICATION OF THE LAW REGARDING STATUTORY LIENS SO AS TO CHARGE BTC WITH CONSTRUCTIVE NOTICE OF MARTIN’S CLAIM TO THE HOUSEBOAT.

A survey of the numerous statutes creating such interests indicates that three separate types of liens are at least superficially applicable to the case now before the Court.

K.R.S. 376.270, lien on motor vehicle for repairs, storage, or accessories — filing of statement with county clerk, contains the first of these statutory grants. The statute generally makes provision for a lien on motor vehicles upon which the lienor has done repairs or furnished supplies. It should be noted that this is the statute relied upon by the Russell Circuit Court in granting Martin’s request for a forced sale. As an alternative to K.R.S. 376.270, Martin in his lien statement also asserted an interest in the houseboat under K.R.S. 376.-360(2) which also bestows a lien upon those who have performed repairs or given supplies to certain specified watercraft. Finally, K.R.S. 376.280, which authorizes the public sale of both motor vehicles and boats by those who are still owed for the provision of similar services, is also relevant. While there is a scarcity of ease law and other interpretive materials concerning these enactments, what little does exist, when supplemented by the plain language of the statutes and common sense, reveals that only the last, K.R.S. 376.280, is applicable to the present situation. We conclude, however, for reasons hereinafter stated, that Martin failed to assert his interest under that statute and that BTC cannot be charged with constructive notice of the purported lien and therefore stands as a bona fide purchaser. Consequently, we reverse the judgment of the Russell Circuit Court.

Our determination that the trial court improperly utilized K.R.S. 376.270 to support Martin’s claim on the houseboat is founded upon the simple proposition that such a vessel is not a motor vehicle as required by that statute. The lien granted in K.R.S. 376.270 is, by its clear and simple terms, available only to those individuals “engaged in the business of selling, repairing or furnishing accessories or supplies for motor vehicles ” (emphasis added), and covers only “the reasonable or agreed charges for repairs, work done on accessories or supplies furnished for the vehicle, and for storing or keeping the vehicle....” (Emphasis added.) Under this statute possession of the vehicle is not a prerequisite for the existence of the lien which may be perfected and preserved by following'the procedures set out in K.R.S. 376.010 and K.R.S. 376.080, the statutory guidelines for the creation and maintenance of mechanics’ and materialmen’s liens. While we must concede that Martin has indeed satisfied all these procedural requirements, we still cannot bestow upon him the protection of a lien under K.R.S. 376.270 as the houseboat involved in this dispute does not qualify as a “motor vehicle.” Traditionally, Kentucky law has never been stretched to include watercraft within the meaning of that term. K.R.S. Chapter 281, for instance, characterizes a motor vehicle as:

any motor propelled vehicle used for the transportation of persons or property on a public highway, including any such vehicle operated as a unit in combination with other vehicles, and including vehicles propelled by electric power obtained from overhead wires whether operating over rails or otherwise....

K.R.S. 281.011(2). Clearly, a houseboat does not fall within the scope of this definition.

The essence of this definition has been incorporated into K.R.S. Chapter 376. Por purposes of specifying the particular vehicles subject to the statutory lien provisions of K.R.S. 376.270 and K.R.S. 376.280, K.R.S. 376.281 states that the term “ ‘motor vehicle’ shall include vehicles used or designed for navigation of or flight in the air, as well as those used or designed for operation on the public highways.” The specific enlargement of this basic definition to include modes of air travel indicates that had the legislature intended it to also encompass watercraft, it would have added the appropriate language to the statute. Unlike K.R.S. 376.280 which was amended in 1952 for just that purpose, K.R.S. 376.-281 has never undergone such an alteration. As K.R.S. 376.281 serves as the basic definition of “motor vehicle” as used in K.R.S. 376.270, the primary statute relied upon by Martin, that statute cannot be read to create a lien in the houseboat subject to this litigation. Martin, therefore, must look elsewhere to defeat BTC’s status as a bona fide purchaser.

One such alternative is contained in K.R.S. 376.360(2), liens on steamboats and other vessels for work and supplies, also cited in Martin’s lien statement. In particular, K.R.S. 376.360(2) creates a lien in favor of persons who have furnished supplies and other materials or engaged in the repair of vessels. When read by itself, this statutory grant would appear applicable. However, subsection (1) of that same statute clearly identifies steamboats, brigs, schooners, sloops, and model barges as the only vessels encompassed by this encumbrance. Although the relevant statutes and case law provide no precise legal definitions of the various vessels enumerated in K.R.S. 376.360, we believe that reliance on the plain, everyday meaning of those terms indicates that a houseboat inescapably does not fall within its purview. A houseboat is distinguished from the enumerated vessels by its construction in such a manner as to be capable of serving as a residence.

Additionally, K.R.S. 376.390(2) mandates that these interests are subordinate to those of a subsequent purchaser taking without actual knowledge unless the suit for enforcement is brought within a year of the accrual of the cause of action or the lien is indicated on a vessel’s enrollment papers. This latter stipulation which utilizes the process of enrollment as a means of notifying subsequent purchasers of the existence of a lien suggests that a vessel must be commercial in nature in order to benefit from the protections of K.R.S. 376.-360. Enrollment is a federally created procedure. See 46 U.S.C.S. §§ 251 et seq. (1979), for the denotement of the national character of a ship engaged in the coasting trade. As the houseboat in this dispute is unquestionably a pleasure craft and therefore not subject to enrollment, we believe that Martin should not be allowed to rely upon K.R.S. 376.360 for the acquisition of a lien. To hold otherwise would be fundamentally unfair to subsequent purchasers of a vessel, such as BTC, as the absence of enrollment documents would deprive them . of one of the chief means of obtaining notification of the existence of such an encumbrance.

From our review of the various statutes granting statutory liens, we have determined that only K.R.S. 376.280, sale of boat or motor vehicle for charges — advertisement of sale — definition of “boat,” was intended to cover the property that is the subject of this appeal. Subsection (1) of that statute provides:

Any boat or motor vehicle remaining in the possession of a person who has made repairs, performed labor or furnished accessories or supplies therefor and to whom the charges for such repairs, labor, accessories or supplies has been owing for a period of more than thirty (30) days, may be sold to pay such deferred purchase money or charges. [Emphasis ours.]

In order to qualify for this type of a particular sale, watercraft must fall within the definition of the term “boat” as set forth in K.R.S. 376.280(2) which states:

The term “boat” as used in subsection (1) of this section, means any watercraft not enumerated in subsection (1) of KRS 376.360 and sloops having an overall length of forty (40) feet or less. [Emphasis added.]

Distinctly, this extremely broad definition evidences a general intent that nearly all types of watercraft be included in the coverage afforded by this statute. Unless a potential lienor can demonstrate that the vessel in which he is asserting an interest falls within one of the narrow exceptions specified in subsection (2), K.R.S. 376.280(1) stands as the only remedy in the nature of a statutory lien for those seeking to recover for charges due on the repair and supply of boats. As we have already seen, the houseboat now in controversy does not fall within the purview of K.R.S. 376.360; nor is it a sloop of less than forty feet in length. It is therefore a “boat” subject to the public sale provided in K.R.S. 376.-280(1).

However, K.R.S. 376.280 is ultimately ineffective as a means of recovering the amount owed Martin by William Burkett. Most obviously, K.R.S. 376.280(1) stipulates that anyone seeking relief under this statute must retain possession of the boat that is to be sold. The record demonstrates that Martin never enjoyed the requisite possession of the boat.

This state of affairs is indeed unfortunate and results in a decision which might seem unduly harsh to Martin, but it would be more unfortunate and harsh for this court to accept his position and hold otherwise. The fact that Martin no longer meets the requirements to recover under K.R.S. 376.280 does not empower us to fashion a remedy for him by stretching the scope of either K.R.S. 376.270 or K.R.S. 376.360 to encompass this situation. This is the function of our legislature and Martin and others similarly situated should look to that body for the appropriate relief.

As a final comment, this court would also state its inclination to reverse the decision of the Russell Circuit Court even if Martin had been correct in his assertion that either K.R.S. 376.270 or K.R.S. 376.360(2) gave rise to the lien on his behalf. This conclusion is due to the fact that regardless of whether Martin had properly asserted and preserved the lien under those statutes, there is no reasonable means by which BTC could have obtained notice of that encumbrance. Prior to the purchase, BTC inspected the clerk’s records in both Russell County, where the boat was located, and Pulaski County, where it was registered. To say that BTC was also charged with constructive notice of the records present in Wayne County, the place where the lien was actually recorded, and conceivably every other county in the Commonwealth, would be fundamentally unfair. Here, BTC had no cause whatsoever to believe that the houseboat had any connection with Wayne County. This is especially true in light of Martin’s ability to protect his interest in the houseboat throughout the course of both the original action against William Burkett in Wayne County and then against BTC in Russell County. Having asserted the lien in Wayne County, Martin took no steps to prevent the boat’s removal therefrom, thereby allowing its purchase by an unsuspecting buyer, herein BTC. Judging from the rapidity with which Martin sought to enforce the lien in Russell County upon obtaining a judgment in his favor in the original action against William Burkett, it would also appear that Martin was well aware of the boat’s whereabouts but simply took no steps to safeguard his own rights. In this situation, Martin did less than is necessary to protect his rights. We feel that we have no justification to redress Martin’s grievances when to do so would result in harm to BTC, another innocent party. Louisville Asphalt Co. v. Cobb, 310 Ky. 126, 220 S.W.2d 110 (1949). So we hold that BTC should not be charged with constructive notice of Martin’s interest in the houseboat.

LASTLY, IS BTC ESTOPPED FROM DISPUTING THE VALIDITY OF THE LIEN DUE TO THE PRINCIPLES OF RES JUDICATA?

As a final position in this appeal, appellee Martin has asserted that BTC may not dispute the validity of its lien on the houseboat as a result of the principles of res judicata. Martin apparently would maintain that that doctrine should result in a decision in his favor regardless of our earlier conclusion that neither of the statutes relied upon by Martin actually creates a lien. In support of this proposition, Martin makes reference to numerous cases regarding the operation of res judicata, most of which endorse the concept that a party will be precluded from raising an issue during the course of litigation if that same issue was raised or could have been raised with reasonable diligence during an earlier proceeding. See, e.g., Barnett v. Commonwealth, Ky., 348 S.W.2d 834 (1961); Whittenburg Eng. & Const. Co. v. Liberty Mut. Ins. Co., Ky., 390 S.W.2d 877 (1965); Norrell v. Elect. & Water Plant Bd., Ky.App., 557 S.W.2d 900 (1977); Stephens v. Goodenough, Ky., 560 S.W.2d 556 (1978); Gregory v. Commonwealth, Ky., 610 S.W.2d 598 (1980). While we would agree with the basic soundness of this principle and considering the fact that the validity of the lien was a fundamental question in both actions in Russell and Wayne counties, we cannot, however, accept Martin’s ultimate argument as to the decisive effect of res judicata. Other technical aspects of res judicata simply are not present in this case. Furthermore, general considerations of fairness have led us to conclude that it would be entirely inappropriate to apply the doctrine of res judicata.

Stated succinctly, the fundamental principle of res judicata is as follows:

[A] final judgment rendered upon the merits ... by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.

46 Am.Jur.2d Judgments § 394 (1969). The successful invocation of this doctrine is clearly then dependent upon the demonstration of each of the elements contained in the above definition, including the existence of a final judgment rendered upon the merits, an identity of the subject matter, and an identity of parties. See also Newman v. Newman, Ky., 451 S.W.2d 417, 419 (1970).

The appellee has satisfactorily established only the presence of an identity of subject matter, namely, the initial suit against William Burkett in Wayne Circuit Court and the action for enforcement of the lien against the appellant in Russell Circuit Court centered upon the issue of the lien’s validity. We question whether the original judgment in Wayne Circuit Court is sufficiently “on the merits” so as to preclude its relitigation by the appellant. That judgment was rendered in default against William Burkett who by then had completely divested himself of any interest in the houseboat and had no dealings whatsoever with the appellant. We would be very reluctant to hold a judgment of such dubious quality as binding upon the appellant.

As there obviously can be no actual identity of parties as between William Burkett and the appellant, the factor of identity of parties could be satisfied only through a finding of privity between those two parties. That we cannot do. While the con* cept of privity defies a precise, inflexible definition, a key consideration for its existence is the sharing of the same legal right by the parties allegedly in privity. This is to ensure that the interests of the party against whom res judicata has been asserted have been adequately represented by his purported privy at the initial trial of the cause of action. 46 Am.Jur.2d Judgments § 532 (1969). As stated in Newark Insurance Company v. Bennett, Ky., 355 S.W.2d 303, 304 (1962), the absolute identity of legal interest is fundamental to a finding of privity and the mere fact that two parties are interested in proving or disproving the same facts will not create privity.

The above-described factors clearly militate against a finding that the appellant and William Burkett were bound together as privies. At the time of the rendition of judgment against him in Wayne Circuit Court, Burkett no longer had any interest in the houseboat and therefore permitted a default judgment to be rendered against him. Instead, title to the houseboat had already been transferred from Carolyn Lynch to the appellant, who had no warning of either the outstanding lien or the appellee’s suit for the judicial validation of that encumbrance. As a result, the appellant’s interest in the houseboat received no representation at all on the part of William Burkett in the original action in Wayne Circuit Court. We therefore decline to hold the appellant to be in privity with William Burkett so as to be bound by the rules of res judicata.

Appellee also fails to demonstrate that the application of res judicata would be consistent with either the policies underlying the doctrine or considerations of fundamental fairness. Essentially, res judicata is justifiable by reference to two distinct policies: the public interest in bringing an end to litigation and the individual’s interest in freedom from multiple and vexatious litigation of the same cause. Barnett v. Commonwealth, 348 S.W.2d at 835. From our perspective, we cannot see how either of these interests would be served by the use of res judicata in this case. The fact that the appellee is faced with the relitigation of the validity of the lien is solely the product of his own inaction. During the long pendency of his original suit in Wayne County, the appellee took no steps to protect his interest in the houseboat, thereby allowing its removal to Russell County and its eventual sale to the wholly innocent appellant. This Court finds it difficult to lend a sympathetic ear to the appellee’s request that we save him from vexatious litigation for which he himself is responsible. Likewise, we do not believe the public interest in terminating litigation will be advanced by preventing the further consideration of the validity of the appellee’s lien. To do so would in effect give judicial approval to a result contrary to our conception of the law to the great prejudice of the appellant. Such a result is to be avoided, especially as we cannot conceive of the further pursuit of this issue beyond the current proceedings. In short, we remain unconvinced that the application of res judi-cata in the instant appeal would be conducive to any private or public end. See Floyd County Board of Education v. Layne, Ky., 474 S.W.2d 397 (1971).

As a final comment, we would also observe that res judicata is essentially a “rule of justice ... [that] is to be applied in particular situations as fairness and justice require, and that it is not to be applied so rigidly as to defeat the ends of justice or so as to work an injustice.” 46 Am.Jur.2d Judgments § 402 (1969). Without belaboring the facts, the use of res judicata in the instant appeal would work such a manifest injustice. We are here confronted with a wholly innocent appellant who purchased the houseboat in good faith after having exercised every reasonable effort to learn of the existence of the appellee’s interest. Conversely, the appellee has done far less than what was necessary to protect his interest, thereby permitting the growth of the current legal quagmire. In order to save that situation, he would now have this Court apply the doctrine of res judicata to give binding effect to a lien which has no statutory basis. Taken to its logical conclusion, the appellee’s argument ultimately stands for the proposition that no party could achieve the status of a bona fide purchaser of personalty subject to a mechanics’ or materialmen’s lien, as long as that lien had been recorded and received judicial sanction. Indeed, this would be the result even when, as in the case at bar, the purchaser had no means of obtaining notice of the lien and the lien had absolutely no statutory basis. We choose not to achieve such an incongruous and unfair result through the application of res judicata. We hold the appellant to be a bona fide purchaser of the houseboat and entitled to all the protection that status affords.

The judgment of the Russell Circuit Court is reversed.

All concur.

      . Text of footnote from page 8.
      We would note that during the pendency of this appeal, the Legislature has seen fit to make such an alteration in the statutes regarding mechanics' and materialmen's liens. Specifically, House Bill No. 686 of the 1984 Session of the Kentucky General Assembly (Kentucky Acts, Chapter —) created a new section of KRS Chapter 376 reading: “As used in KRS 376.270 and 376.275, 'motor vehicle’ shall include vessels used or designed for navigation or operation on waterways, rivers, lakes, and streams, as well as those used or designed for operation on the public highways.” This recent enactment, however, became effective as of July 2, 1984, and is therefore of no value in support of appel-lee's claim to a materialmen’s lien under KRS 376.270. Instead, this development points to the soundness of our conclusion that KRS 376.270, as written at the beginning of this litigation, did not authorize the creation of such an encumbrance in the houseboat.


author: WHITE, Judge.

text:
    Mary MORRIS, Appellant, v. Laura M. DERRY, Administratrix of the Estate of Ann Cohn, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Sept. 14, 1984.
    Rehearing Denied Nov. 9, 1984
    Discretionary Review Denied by Supreme Court March 15, 1985.
    Lanny R. Holbrook, Cincinnati, Ohio, for appellant.
    James C. Ware, Covington, for appellee.

      Before REYNOLDS, WHITE and WIL-HOIT, JJ.
   WHITE, Judge.

This appeal is from a determination by the Kenton Circuit Court that appellant Mary Morris is liable upon a note executed by her deceased husband, to whose estate she was heir.

With reference to the facts, a five-thousand-dollar note was executed on November 24, 1967, by James Morris to Ann L. Cohn. In January 1980 Ms. Cohn died; Ms. Derry was appointed administratrix of her estate the following month. In May of that same year Mr. Morris died, with Mrs. Morris being named executrix in June. In May 1981 Ms. Derry claimed Ms. Cohn’s personal effects and sometime subsequent thereto discovered the note. A complaint seeking recovery, however, was not filed until June 29, 1982.

Appellant sought dismissal below based upon KRS 396.025 which states:

All claims against a decedent’s estate which arose before the death of the decedent ... are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless proven as required by law and as follows:
(1) Within one (1) year after the date of the appointment of the personal representative.

Appellees, however, rely upon KRS 413.-210:

No action upon a cause which accrued against a deceased person in his lifetime shall, when his estate has been distributed and divided, be brought against his heirs or devisees jointly with his personal representative after the expiration of two (2) years from the date of the order of discharge of the representative.

The lower Court overruled the motion to dismiss, noting that the former statute deals with claims presented within the year after the appointment of the personal representative and the latter with those made after the distribution of the assets. To our reading this is unsatisfactory reasoning.

In order for there to be any consistency between KRS 396.025 and 413.210, we must first assume that the Legislature had a specific situation in mind which 413.210 is to address. To our satisfaction that situation relates to instances in which a claim has been properly made against the estate under KRS 396.025; however, it is disallowed by the personal representative. At that point KRS 413.210 attaches to allow two years from the discharge of the representative to pursue that same claim against the heirs or devisees jointly with the personal representative. Otherwise, the dilatory claimant would be given a second bite at a previously lost apple.

Given this interpretation, Ms. Der-ry’s action on behalf of the Cohn estate cannot be given life through KRS 413.210 alone. Having failed to have proven the claim in a timely fashion under KRS 396.-025, the action must be deemed lost. Accordingly, the Circuit Court erred in allowing it to be pursued upon the merits.

The judgment of the Kenton Circuit Court is reversed and remanded with instructions to dismiss Ms. Derry’s action as administratrix for Ann L. Cohn’s estate.

All concur.


text:
    SCHOOL SUPPLY COMPANY, INC., James J. Gormley, Jr., and Elizabeth S. Gormley, Appellants, v. FIRST NATIONAL BANK OF LOUISVILLE, Appellees.
    No. 84-CA-300-MR.
    Court of Appeals of Kentucky.
    Nov. 30, 1984.
    Case Ordered Published by Court of Appeals Feb. 22, 1985.

      Ronald A. Newcomer, Shuffett, Mooney, McCoy, Campbell, Leathers & Newcomer, Lexington, for appellants.
    John T. McGarvey, Carolyn B. Wetterer, Morgan & Pottinger, Louisville, C. Edward Hastie, Hastie & Murray, Lexington, for appellees.
    Before GUDGEL, McDONALD and MILLER, JJ.
   McDONALD, Judge:

This is an appeal wherein the appellants claim that the trial court erred in granting appellee First National Bank of Louisville a summary judgment. The appellants contend that because an issue of fact is involved a summary judgment is precluded from consideration.

Appellants’ sole claim of error is stated thus: The trial court erred in granting the in rem judgment and order of sale since the question of the commercial reasonableness of the disposition of the inventory collateral by the First National Bank is a question of fact and not one of law.

The background for the actions taken shows that appellant School Supply Company, Inc., on December 11, 1979, borrowed $240,000 from the appellee bank. The note contained a payment schedule with 12% interest and was signed by appellant James J. Gormley, Jr., President. By a separate transaction a guaranty agreement was signed by James J. Gormley, Jr., as an individual. Additional collateral securing the loan and the guaranty agreement were mortgages signed by James J. Gormley, Jr., and Elizabeth S. Gormley, his wife, securing for the bank two lake lots and a house with lot in Lexington.

In addition to the real estate mortgages, the bank held a security interest in all accounts receivable, all inventory, all machinery and equipment, all office furniture and fixtures, and certain described vehicles.

There is no question that the appellants defaulted on the notes causing the appellee to file suit demanding the following:

1. Acceleration of payments on the note and judgment in the sum of $233,088.21, plus accrued interest in the sum of $18,-541.64;

2. To be adjudged first mortgage lien on the real properties;

3. That real properties be sold by the court; and

4. That all nonreal property of School Supply Company, Inc. be repossessed, sold, and the proceeds applied to the court costs, attorneys fees and the debt; further, that the bank have judgment for any deficiency after the proceeds of sale are applied to the loan.

With the help of the Fayette County Sheriff, and armed with an order of court, the bank took possession of the premises and inventory of the defaulting company. The sheriff made a return on the writ of possession by filing an inventory list. Next, the appellee moved the court for an order of sale of the collateral repossessed but the court denied the motion.

The appellee then proceeded on its own to sell the collateral without the approval of the court. Attempts were made to dispose of the collateral through sales to dealers and wholesalers, but to no avail. The bank then sought the services of Vernon Hatton, a liquidator and auctioneer in Lexington. A decision was made to conduct a private sale on the premises of the supply company, and then auction the large and other remaining items. Notices were mailed to all concerned and advertisements were circulated.

The appellants contend that the private sale of February 25 and 26, and the auction of February 27 and March 6, 1982, were not only unapproved by the court but expressly refused by the court when approval was sought. The events were glorified garage sales which were contrary to accepted methods of liquidation of instructional materials and school supplies, and as such constituted a “commercially unreasonable” method of disposing of such collateral. Appellants’ brief stated, “Never has so much been sold for so little with so much effort.”

Argument is made that by simply looking at the mathematics of the disposition of the property, where $163,194.40 of assets were sold for a net liquidation sum of $20,564.14, these facts alone make it facially a commercially unreasonable disposition.

The appellee counters that argument by stating that out of the gross liquidated amount of $38,613.41, $18,045.27 had to be paid in expenses, i.e., $9,050 in lease and back rent payments.

In opposition to the motion for summary judgment, the appellants filed an affidavit of counsel which they believed created a factual issue sufficient to overcome summary disposition of the case. Counsel’s affidavit revealed a potential expert witness, Larry Singer, of Winwood, Pennsylvania. Mr. Singer was formerly marketing director of Instructo-McGraw Hill Publishers. He began and operated two companies dealing in school supplies and instructional materials. Mr. Singer proffered, through counsel’s affidavit, that it was not normal practice in the trade for dealers in inventories of instructional materials and school supplies of distressed businesses to sell the property at public auction because this results in excessive loss. Mr. Singer was of the opinion that the property should have been sold in bulk through an organization such as the National1 School and Equipment Association. Notwithstanding the affidavit filed, the court nevertheless granted summary judgment.

Our statutory guidance is found in K.R.S. 355.9-504(3), SECURED PARTY’S RIGHTS TO DISPOSE OF COLLATERAL AFTER DEFAULT — EFFECT OF DISPOSITION. “... Disposition of the collateral may be by public or private proceedings ... but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.” (Emphasis added.)

It is necessary for us to determine whether “commercially reasonable” is a question of law for the court to decide or a question of fact for a jury to consider. In review, the following are undisputed facts. Prior to the disposition the appellee: 1) employed a qualified and experienced auctioneer, Yernon Hatton, to advise the appel-lee and conduct the liquidation of the collateral; 2) advertised prominently the sale in 21 separate publications in the area’s largest newspapers; 3) advertised the sale in the largest professional journal for educators; 4) sent individual notices to 58 private and parochial schools; and 5) put up signs on the premises of the defaulting company and circulars were distributed in the area’s shopping centers. This effort resulted in the following: 1) 200-300 bidders attending the proceedings; 2) 116 successful bidders were accounted for on the two days of the auction; and 3) bidders came from as far away as Cincinnati, Ohio.

Unquestionably the appellants were on notice of the method of disposition of the collateral as the case progressed. We agree with the appellants that the secured party (appellee) rather than the debtor (appellants) has the burden to prove commercial reasonableness. See Bank of Josephine v. Conn. Ky.App., 599 S.W.2d 773 (1980), and Central Bank and Trust Company v. Metcalf, Ky.App., 663 S.W.2d 957 (1984).

The phrase “commercially reasonable” under the statutory scheme is the ultimate or conclusory fact which becomes the conclusion of law for the court to determine. However, K.R.S. 355.9-504(3) is explicit in requiring even the evidentiary facts to be commercially reasonable, including method, manner, time, place and terms of the disposition. If there is a dispute concerning the evidentiary facts, i.e., one party contending notices of the sale were mailed and the other party denying it, then an evidentiary fact issue is created which must be resolved by the fact finder. However, whether or not notice by regular mail is “commercially reasonable” is an issue of law for the court to decide. With the great disproportionate difference between the value of the property and what ultimately was realized from the sales and auctions, the trial court had a duty to scrutinize the proof. We are impressed that he did. Keep in mind that under K.R.S. 355.9-507(2) the fact that a better price could have been obtained by a sale at a different time or in a different method is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. This principle falls within the general theme found in Sizemore v. Bennett, Ky., 408 S.W.2d 449 (1966). There it was said that mere inadequacy of price alone is not ground for setting aside a judicial sale. We do believe that the great disproportionate difference between the value of the property and what was realized by sale created a presumption of “commercial unreasonableness” which had to be overcome.

That presumption was overcome by the trial court concluding, as a matter of law, that appellee’s disposition proceedings were commercially reasonable. It is also significant to note the fact that the appellants made no effort to stop the sale and auction.

It is our opinion that the trial court was under a duty to enter the summary judgment as it did under the authority of Bennett v. Southern Bell Telephone and Telegraph Company, Ky., 407 S.W.2d 403 (1966), because there was no genuine issue as to any material fact.

MILLER, J., concurs.

GUDGEL, J., concurs in result.


author: GUDGEL, Judge:

text:
    CHAPMAN DRUG COMPANY, INC., d/b/a Chapman Drug Company, Appellant, v. Louis H. GREEN, Jr. and Murphy H. Green, Individually and as Co-Executors of the Estate of Louis H. Green, Deceased, Appellees.
    Court of Appeals of Kentucky.
    Dec. 14, 1984.
    Discretionary Review Denied by Supreme Court March 13, 1985.

      Susan Coleman Lawson, Harlan, for appellant.
    Henry S. Johnson, James S. Greene, Jr., Harlan, for appellees.
    Before COMBS, GUDGEL and HOWER-TON, JJ.
   GUDGEL, Judge:

This is an appeal from a judgment entered by the Harlan Circuit Court which dismissed an action to enforce a promissory note. The court adjudged that appellees’ decedent signed a promissory note as an accommodation indorser, and that appellant’s action to enforce the note is barred by KRS 413.220(3), the seven-year statute of limitations governing contractual liabilities of sureties. Appellant contends that the court erred in these determinations. We disagree. Hence, we affirm.

On August 2, 1967, Louis H. Green, ap-pellees’ decedent, executed and delivered a promissory note to Hamilton National Bank. The note was evidence of a debt owed to the bank by Minnis Radio Center Drug, Inc. Green was president of the corporation and signed the front of the note in that capacity. He indorsed his signature on the back of the note, however, in his individual capacity. Appellant Chapman Drug Company, Inc., through its president, indorsed the back of the note immediately below Green’s signature. On November 10, 1967, appellant paid the bank the principal balance due on the note. Green died on December 22, 1978, and appellees were appointed co-executors of his estate. Appellant filed this action against appellees on June 17, 1981. It sought a judgment against Green’s estate for the amount it paid Hamilton National Bank to acquire title to the disputed note plus accrued interest. Appellees filed a motion for judgment on the pleadings on the ground that Green signed the note as an accommodation indor-ser, and thus, that the action against his estate was barred by the seven-year statute of limitations applicable to sureties, KRS 413.220(3). The court granted appel-lees’ motion and dismissed appellant’s action. This appeal followed.

Appellant argues the court erred by finding that Green was a surety since he did not specifically designate himself as such when he indorsed the disputed note. We cannot agree.

Article 3 of the Uniform Commercial Code (KRS Chapter 355.3) recognizes that there are two types of indorsers. First, there are indorsers who are within the chain of title to the instrument. By indorsing the instrument this indorser engages that if it is subsequently dishonored he or she will pay it. KRS 355.3-414. However, if a person indorses a note outside the chain of title, that person is an accommodation indorser, and liable on the instrument in that capacity. KRS 355.3-415(2). Here, it is undisputed that Green indorsed the back of the note outside the chain of title for the purpose of accommodating his corporation. By doing so he became liable on the note as an accommodation indorser. KRS 355.3-415(4).

The Official Comment on Section 3-415(1) of the Uniform Commercial Code, 2 U.L.A. 448-449 (1977), comments on the status of accommodation parties as follows:

1. Subsection (1) recognizes that an accommodation party is always a surety (which includes a guarantor), and it is his only distinguishing feature. He differs from other sureties only in that his liability is on the instrument and he is a surety for another party to it. His obligation is therefore determined by the capacity in which he signs. An accommodation maker or acceptor is bound on the instrument without any resort to his principal, while an accommodation indorser may be liable only after presentment, notice of dishonor and protest. The subsection recognizes the defenses of a surety in accordance with the provisions subjecting one not a holder in due course to all simple contract defenses, as well as his rights against his principal after payment. (Emphasis added.)

This jurisdiction adheres to the view that the official commentary on a uniform act is persuasive authority for purposes of interpreting the act. Couty v. Kentucky Farm Bureau Mutual Insurance Co., Ky., 608 S.W.2d 370 (1980). Pursuant to this rule, therefore, we hold that a person who signs a promissory'note as an accommodation indorser is a surety for purposes of Kentucky law. It follows, therefore, contrary to appellant’s contention, that the court did not err by finding that Green was a surety even though he did not specifically designaté himself as such when he signed the disputed note.

Next, appellant contends that by relying upon KRS 413.220(3), the statute of limitations applicable to sureties, the court impermissibly extended the scope of that statute by implication. This contention is without merit. At the time Article 3 of the Uniform Commercial Code was enacted in Kentucky, KRS 413.220(3) was in effect. The legislature left this statute unchanged and did not enact any new statute of limitations to govern actions arising under Article 3 of the Code. We conclude, therefore, that the legislature intended that KRS 413.-220(3) would be the statute of limitations applicable to actions against persons who have acquired the status of a surety under Article 3 of the Code. Reidlin Co. v. Haake, 218 Ky. 47, 290 S.W. 1050 (1927).

The court’s judgment is affirmed.

HOWERTON, J., concurs.

COMBS, J., dissents.


author: COMBS, Judge.

text:
    Preston P. NUNNELLEY, M.D. and Lucille Nunnelly, Appellants, v. Ansel HERNDON, Appellee.
    No. 84-CA-1060-MR.
    Court of Appeals of Kentucky.
    Feb. 8, 1985.
    As Modified March 8, 1985.

      David T. Enlow, Steven F. Vicroy, Murphy, King, Enlow & Dunn, Lexington, for appellants.
    James G. Sheehan, Jr., Sheehan, Barnett & Hays, P.S.C., Danville, for appellee.
    Before COMBS, MILLER and WHITE, JJ.
   COMBS, Judge.

The issue on appeal is whether the entry of summary judgment against appellants for the unpaid balance of the note properly disposed of their claim of discharge under KRS 355.3-606(l)(a).

James Nunnelly and his uncle by marriage, Brodie Carmen, were employed in the retail sales of automobiles. They decided to go into business together by purchasing a dealership in Central Kentucky. In surveying the area for possible dealerships, they were on occasion joined by James’ brother, Preston. In fact, Preston was actively involved in negotiations concerning the purchase of a Cadillac dealership. After examining their prospects, James and Brodie decided to purchase a Ford dealership from Ansel Herndon.

Part of the purchase transaction was a note payable to Herndon for $60,000.00. The note was to be paid in ten years by paying 120 monthly installments. Herndon would not loan the money unless Preston and his wife joined with James and Brodie and their wives as makers on the note. Following the execution of the note, Hern-don wrote a check in the amount of the note payable to James, Brodie and Preston. Each endorsed the check and returned it to Herndon.

The dealership had a difficult start, apparently suffering from the effects of the last recession. James, who had bought Brodie’s interest, was forced to close the business. Before the end, Herndon accepted payments of interest only from James.

After James filed bankruptcy and Brodie died, Herndon filed this action against Preston and his wife. They plead as an affirmative defense that they were sureties and their obligation had been discharged because Herndon suspended his right to enforce the note against the principal makers. They also initiated a third-party action against Brodie’s estate and his widow. Summary judgment was entered against Preston and his wife for the remaining balance due on the note. The judgment was made final by including CR 54.02 recitations. Preston and his wife appeal.

The appellants argue that they were accommodation parties, and therefore entitled to the defense found in KRS 355.3-606(l)(a). Relevant portions of that section are as follows:

The holder discharges any party to the instrument to the extent that without such party’s consent the holder (a) without express reservation of rights, releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, ...

To be entitled to this defense, the appellants must show that they are accommodation parties. An accommodation party is defined in KRS 355.3-415(1) as “... one who signs the instrument in any capacity for the purpose of lending his name to another party to it.” The evidence presented to this court is that Preston and his wife signed the note because Herndon would not sell the dealership to James and Brodie otherwise. A further factor to consider is whether Preston and his wife received any benefit from the proceeds of the note. See Annot., 90 A.L.R.3d 342 (1979).

Benefits from the proceeds of the note were used by James and Brodie to buy the dealership which they ran as a corporation. Neither Preston or his wife were a stockholder, director or officer of the corporation, and neither received any salary or commission from the corporation. However, Herndon argues that the appellants received benefits evidenced by Preston’s endorsement of the check and their use of demonstrators.

Preston’s endorsement of the check is irrelevant. It does show that Preston temporarily received the proceeds, but does not show that he received any benefit from those proceeds.

Nor does the appellants’ use of automobiles show any benefit from the proceeds of the note. This use was related to appellants’ effort to promote the dealership. Through appellants’ use of these demonstrators, the dealership was able to sell numerous automobiles. This benefit is related to transactions between the dealership and appellants and is not related to the transaction at issue.

The second issue is whether Herndon knew of the appellants’ status as sureties. The record before this court is that Hern-don demanded appellants’ signatures before he would sell to James and Brodie. Nothing in the record contradicts this proof.

The third issue is whether Herndon suspended his right to enforce the note. Clearly acceptance of partial or interest-only payments is a suspension of enforcement of the note.

The last issue is whether the appellants consented to the suspension. There is nothing in the note or the record which would indicate they did. Herndon argues that appellants agreed to future suspensions because the holder had a discretionary right to accelerate. We disagree. The right to accelerate provided the holder with the ability to enforce future payments upon a present default. This right does not include a surety’s consent to non-enforcement of a present default of payments.

The appellants are entitled to the KRS 355.3-606(l)(a) defense as a matter of law. However, Herndon is entitled to summary judgment. This opinion effects only the amount of that judgment because the appellants are only discharged “... to the extent ...” that the enforcement of the note was suspended. KRS 355.3-606. The appellants are discharged from any amount due on the note prior to the time that Herndon sought enforcement against them.

The judgment of the Lincoln Circuit Court is reversed and remanded for proceedings consistent with this opinion.

All concur.


author: TURNAGE, Chief Judge.

text:
    YES TO STOP CALLAWAY COMMITTEE, An Unincorporated Association, and David Harris, an Individual, Plaintiffs-Appellants, v. James C. KIRKPATRICK, Secretary of State of Missouri, Defendant-Respondent, and Union Electric Company, a Corporation, and James T. Friel, an Individual, Intervenors-Respondents-Cross-Appellants.
    No. 36299.
    Missouri Court of Appeals, Western District.
    Oct. 5, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Oct. 18, 1984.
    Application to Transfer Denied Oct. 25, 1984.
    Danieal H. Miller, Columbia, for plaintiffs-appellants.
    John Ashcroft, Atty. Gen., Edward D. Robertson, Jr., Deputy Atty. Gen., Jefferson City, for defendant-respondent.
    Francis X. Duda and Ann E. Buckley, St. Louis, Schlafly, Griesdedieck, Ferrell & Toft, St. Louis, for intervenors-respon-dents-cross-appellants.
    Before TURNAGE, C.J., and MANFORD and LOWENSTEIN, JJ.
   TURNAGE, Chief Judge.

Yes to Stop Callaway Committee, an unincorporated association, and David Harris, a Committee member, appealed the circuit court judgment which had affirmed the Secretary of State’s decision to not place an initiative petition on the ballot at the November 6, 1984, election.

The Committee presented a petition to the Secretary of State to have placed on the ballot a proposed law which would prohibit the operation of nuclear power plants in Missouri. The Secretary of State denominated the proposal as Proposition A, and certified that the petition lacked 331 signatures from Greene County to attain the required number of signatures to place Proposition A on the ballot.

At the outset, this court is confronted with a question of its jurisdiction. The Committee originally appealed to the Missouri Supreme Court, but that court transferred the case to this court because jurisdiction was vested here.

Section 116.200.3, RSMo Supp.1983, provides that actions brought in the circuit court of Cole County concerning initiative and referendum petitions may be appealed to the supreme court. That section can be traced to Laws of 1909, at 556 in which it was first provided that such appeals could be taken to the supreme court. Subsequent enactments of that statute resulted in the present Section 116.200, which simply carried over the provision allowing an appeal to the supreme court.

Article V, Section 3 of the Missouri Constitution, as amended on November 2, 1982, provides that in civil cases the supreme court shall have exclusive jurisdiction only in cases involving the validity of a treaty or statute of the United States, of a statute or provision of the constitution of this state, the construction of the revenue laws of this state, and the title to any state office. Article V, Section 3 of the 1945 Constitution provided for enlarging the supreme court’s jurisdiction by law. However, the August 3, 1976, amendment of Article Y, Section 3 dropped that provision. Since that time, the constitution has not allowed the supreme court’s jurisdiction to be enlarged or changed by law. Section 116.200.3 is simply a carryover from previous law, and the legislature has inadvertently failed to change the section to reflect the supreme court’s present constitutional jurisdiction. The supreme court, by transferring the appeal to this court, clearly held that section is not controlling on the jurisdiction of this appeal. The November 2, 1982, amendment gave the court of appeals general appellate jurisdiction in all cases except those within the exclusive jurisdiction of the supreme court. This case does not present any matter encompassed within the supreme court’s exclusive jurisdiction, thus, jurisdiction over this appeal is properly in this court.

The question presented in this case is whether the Secretary of State correctly refused to count 822 signatures of persons in Greene County, located in the 7th Congressional District, because the addresses they listed on the initiative petition differed from the addresses on their registration records. The precise question is thus whether or not the Secretary of State can count a person’s signature on an initiative petition when that person is registered to vote at one address, but lists a different address on the petition.

Article III, Section 50 of the constitution provides that an initiative petition shall be signed by the legal voters in the state. Section 116.060, RSMo Supp.1983, provides that any registered voter of the state may sign an initiative petition. In Scott v. Kirkpatrick, 513 S.W.2d 442 (Mo. banc 1974), the court construed the term “legal voter” as used in Article III, Section 50 and the term “qualified voter” as used in section 126.011(2), RSMo Supp.1971. The court concluded that the two terms meant registered voters. The court stated at 444-45:

It follows from this that the signature of a person otherwise qualified, but not registered, to vote is not acceptable on an initiative petition proposing an amendment to the constitution, because he is not at the time legally entitled to vote on the measure it proposes. Accordingly, we hold that the signers of an initiative petition are required to be registered voters.

The Committee contends that a person is a registered voter once his name is placed on the registration records of the election authority, and the fact that he moves and does not transfer his registration has no effect on his standing to sign an initiative petition.

By section 116.060, RSMo Supp.1983, the legislature adopted the holding in Scott and provided that any registered voter may sign an initiative petition. Section 115.139, RSMo 1978, prohibits any person who is not registered from voting, with two exceptions not material here. Sections 115.155 and 115.159, RSMo 1978, require a person to list his home address on his registration application.

Section 115.165, RSMo Supp.1983, provides that any registered voter who changes his place of residence within the same jurisdiction of an election authority may transfer his registration. Section 115.165.4, RSMo Supp.1983, provides that any registered voter who changes his place of residence within a jurisdiction before 5:00 p.m. on the fourth Wednesday prior to an election, and does not transfer his registration by that time shall not be entitled to vote in that election. Such a person is thus in the same posture as an unregistered person.

Section 116.130.1, RSMo Supp.1983, permits the Secretary of State to send copies of the petition pages to election authorities to verify that the persons whose names are listed as signers are registered voters. That section further provides that only the signatures of persons registered as voters in the county shall be counted as valid. It necessarily follows that the only signatures which may be counted are those of persons who give addresses corresponding to that shown on their registration records.

It is clear that a person is not eligible to vote in an election when he has registered at one address but has since changed his residence prior to the fourth Wednesday before the election, unless he transfers his registration within the time set by law. Thus, such a person who has changed his residence but who has not changed his registration is not registered to vote until his registration has been transferred.

The essence of Scott is that a person must be legally entitled to vote on the measure proposed by the initiative petition on the day that he signs it. Judge Seiler emphasized this point in his dissent. Scott, 513 S.W.2d at 446, n. 1. Judge Seiler pointed out the majority reasoned that in order to sign an initiative petition, the person must be legally entitled to vote on the measure at the time the petition is presented to him. Id.

The persons who signed the initiative petition in this case but listed an address different from that shown on their registration record had obviously not transferred their registration and were thus not eligible to vote on the day they signed the petition. The petition does not show the date these persons actually signed, but the Greene County Clerk examined the petition on August 16, 1984. This was before the fourth Wednesday prior to the election to be held on November 6, 1984. These persons were clearly not eligible to vote when they signed the petition, and under the Scott rationale were therefore ineligible to have their signatures counted.

The precise situation in this case was present in Whitman v. Moore, 59 Ariz. 211, 125 P.2d 445 (1942), rev’d on other grounds, Renck v. Superior Court of Maricopa County, 66 Ariz. 320, 187 P.2d 656 (1947); Brousseau v. Fitzgerald, 138 Ariz. 453, 675 P.2d 713 (1984). Similar statutes were in force in Arizona requiring registration and requiring a transfer of registration when a person moved from the address at which he was registered. The court held that a person must be a qualified elector at the date he signs the petition. Whitman, 125 P.2d at 452[12, 13]. The court further held that when a person has moved from the place at which he was registered and has not transferred his registration, he has lost the right to vote and thereby was thus not eligible to vote on the petition on the date that he signed it, and his signature would not be counted. Id. at 453[15].

The Committee contends that the failure to count the signatures of those who were registered but had moved without transferring their registration created an unconstitutional classification. The Committee does not challenge any specific law and indeed no law creates a classification of voters. Since the Committee does not attack any specific law, there is no constitutional challenge to consider. The Committee, in reality, bases its argument on the fact that in St. Louis County, the election authorities counted the signatures of persons who had failed to transfer their registration. Simply because the St. Louis County authorities counted signatures which they should not have does not give rise to an unconstitutional classification. This counting error simply inured to the Committee’s benefit, and supplies it no grounds for complaint.

The trial court properly held that the petition lacked the required number of signatures and the Secretary of State properly refused to place Proposition A on the ballot.

Union Electric Company and James T. Friel, had filed a cross-appeal in order to insure that they would obtain the fullest review possible. Because of the disposition of this case, that cross-appeal is dismissed.

The judgment is affirmed.

All concur.


author: PER CURIAM:

text:
    Leo M. MULLEN, M.D., Appellant, v. John H. RENNER, et al., Respondents.
    No. WD 35730.
    Missouri Court of Appeals, Western District.
    Nov. 27, 1984.
    Rehearing Denied Jan. 29, 1985.
    Application to Transfer Denied April 2, 1985.

      Leo M. Mullen, M.D., pro se.
    Myron S. Silverman, Gage & Tucker, Kansas City, for respondents.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   PER CURIAM:

Following his involuntary retirement from the staff of St. Mary’s Hospital, Dr. Leo Mullen, acting pro se, filed: (1) a petition against the hospital and named members of the hospital staff, and (2) a motion for a “temporary injunction allowing him to continue on the hospital staff during the pendency of the lawsuit.” Appellant sought reinstatement on the hospital staff and money damages. The defendants moved to dismiss the petition for failure to state a cause of action. Following a hearing, the trial court issued its judgment overruling the motion for injunction and dismissing the petition with prejudice.

Mullen alleged that he had been indicted by a federal grand jury for controlled substances offenses. In preparation for trial, Mullen was examined by a psychiatrist, Dr. William McNelly, of the University of Kansas College of Health Sciences and Hospital. McNelly found “that at the time of the alleged acts [Dr. Mullen’s] judgment was so impaired ... that he was unable to appreciate the wrongful nature of his acts.” Based on this diagnosis, the United States Attorney for Western Missouri, with leave of the district court, dismissed the indictment against Dr. Mullen.

In the fall of 1982, during its periodic review of physicians sixty-five years old and older, the credentials committee of St. Mary’s Hospital reviewed the report of Dr. McNelly and recommended to the executive committee that “Dr. Mullen be retired from the St. Mary’s staff.” The executive committee afforded Mullen a hearing on November 17, 1982. Although Dr. Mullen attended the hearing, he presented no affirmative evidence of his own. Rather, Mullen maintained that McNelly’s conclusions were based on symptoms caused by Mullen’s high blood pressure medicine. Mullen argued that the committee should be able to conclude, based on his appearance and demeanor before the committee, that McNelly’s report was no longer accurate (if, indeed, it was ever accurate). The executive committee decided to retire Dr. Mullen from St. Mary’s staff.

St. Mary’s Hospital gave Mullen a further “appellate review hearing” of the decision to retire him from the staff. Again, Mullen did not present any affirmative evidence on his behalf regarding his mental condition. Rather, he argued that McNelly’s report was incorrect. Dr. Mullen was subsequently involuntarily retired from the staff of St. Mary’s Hospital.

Dr. Mullen argues that the trial court abused its discretion when it dismissed his petition without, sua sponte, offering Mullen an opportunity to amend it to state a cause of action, and dismissed his petition with (rather than without) prejudice. The point is denied.

I

Before discussing the point raised by appellant, we address a jurisdiction matter raised by respondents. Respondents contend that the appeal should be dismissed because the appeal was taken from an order overruling Mullen’s motion for rehearing rather than from the trial court’s judgment of February 16, 1984. Respondents are correct in contending that the appeal lies from the trial court’s judgment and not from the order overruling the motion. An attempt to appeal from a non-ap-pealable post judgment order may or may not be a basis for dismissal of the appeal, depending on perception by the appellate court of the interests of justice, the inadvertence of the mistake and the presence or absence of a good faith attempt to present issue cognizable for appeal and discernable from the briefs and record. Pittman v. Reynolds, 679 S.W.2d 892 (Mo.App.1984). In the instant case, the conditions warrant leniency and, in the interests of disposing of the controversy, the appeal is considered as taken from the judgment dismissing Mullen’s petition.

II

We begin by noting that Mullen does not contest the correctness of the trial court’s determination that the petition, as it stands, fails to state a cause of action. Rather, Mullen’s point concerns the trial court’s action, or inaction, after making the decision that the petition was deficient.

Mullen begins by correctly noting the liberality which is accorded requests for leave to amend a petition, even during trial. Hanes v. Bacon Sales Co., 602 S.W.2d 50, 53 (Mo.App.1980); Rule 55.33. However, Mullen concedes that he “did not specifically request time to amend” his petition. Rule 67.06. He argues that the trial judge should have affirmatively offered appellant the opportunity to amend his petition. “If a plaintiff desires to file an amended petition it is up to him to ask leave to do so.” Jones v. Williams, 209 S.W.2d 907, 911 (Mo.1948). Much more recently, this court has rejected the argument that a trial judge must sua sponte grant a party leave to amend a deficient pleading. Burr v. National Life & Acc. Ins. Co., 667 S.W.2d 5, 7-8 (Mo.App.1984).

III

Appellant also argues that the trial judge improperly dismissed the petition with prejudice rather than without prejudice. “[IJnvoluntary dismissal[s] ... shall be with prejudice unless the court in its order for dismissal shall otherwise specify.” Rule 67.03. While the trial court may, in its order of dismissal, specify that it is without prejudice, appellant has presented no reason for the trial court to have taken such a step. Appellant concedes that he did not seek leave to amend his petition. When a party fails to seek leave to amend a deficient pleading, it may be assumed that the party “has made the strongest presentation of his case which the facts permit and was satisfied with his pleading.” 5 C.J.S. Appeal & Error Section 1539b, p. 1083 (1958).

IV

Appellant argues that the trial court’s actions constituted an abuse of discretion. He correctly notes that the standard of review in such a case is whether reasonable minds could differ as to the correctness of the ruling. Anderson v. Robertson, 402 S.W.2d 589, 593 (Mo.App.1966). If reasonable minds could differ, then there is no abuse. We have outlined substantial reasons supporting the trial court’s judgment of dismissal with prejudice. Appellant has presented no sufficient reason for altering that decision.

V

Before concluding, we address one additional aspect of this case raised by appellant. Mullen argues that, because he is a pro se litigant, he should not be held to as strict a standard as a party represented by an attorney. Dr. Mullen is no stranger to the courts of this state or of the United States. He has frequently been involved in litigation. He has been represented by counsel, and he has appeared pro se. Mullen v. Academy Life Ins. Co., 705 F.2d 971 (8th Cir.1983), cert. denied sub nom, Beausang v. Mullen, — U.S. -, 104 S.Ct. 101, 78 L.Ed.2d 105 (1983) (pro se); Mullen v. United States, 696 F.2d 1000 (8th Cir.1982) (decision without published opinion) (case No. 82-1846), motion to file petition for cert. out of time denied, 461 U.S. 921, 103 S.Ct. 2077, 77 L.Ed.2d 292 (1983); Mullen v. Starr, 537 F.Supp. 945 (W.D.Mo.1982), aff'd without published opinion, 696 F.2d 1000 8th Cir.1982) (case No. 82-2059), cert. denied, 461 U.S. 960, 103 S.Ct. 2434, 77 L.Ed.2d 1320 (1983), reh’g. denied, — U.S.-, 104 S.Ct. 415, 78 L.Ed.2d 353 (1983) (pro se); Mullen v. Orr, 667 S.W.2d 8 (Mo.App.1984) (pro se); Wright v. Mullen, 659 S.W.2d 261 (Mo.App.1983) (represented by counsel); Dayringer v. Mullen, 651 S.W.2d 500 (Mo.App.1983) (represented by counsel); Mullen v. General Motors Corp., 640 S.W.2d 144 (Mo.App.1982) (pro se); Mullen v. Wise, 583 S.W.2d 250 (Mo.App.1979) (represented by counsel); Mullen v. Dike Development Co., Inc., 560 S.W.2d 337 (Mo.App.1977) (represented by counsel); Mullen v. City of Kansas City, 557 S.W.2d 652 (Mo.App.1977) (represented by counsel); Poorbaugh v. Mullen, 99 N.Mex. 11, 653 P.2d 511 (Ct.App.1982), cert. denied, 99 N.Mex. 47, 653 P.2d 878 (1982) (represented by counsel); Poorbaugh v. Mullen, 96 N.Mex. 598, 653 P.2d 706 (Ct.App.1981) (represented by counsel). Mullen has met with mixed results both when appearing on his own behalf and when represented by counsel. Further, Mullen has appeared as a witness, Weaver v. Finch, 306 F.Supp. 1185, 1189 (W.D.Mo.1969) (use of letter stating diagnosis in disability case), and has had significant contacts with other litigation, [Delores] Mullen v. Roberts and Roberts Real Estate, Inc., 550 S.W.2d 588 (Mo.App.1977). Thus, Mullen is not the typical pro se litigant. We believe that the following comments by Federal District Judge Stevens, regarding pro se litigants in general and Dr. Mullen in particular, apply well to this case:

Despite the admonition, often stated by appellate courts, that pleadings of one appearing pro se should be construed liberally in favor of the pleader, those pleadings still “must set forth the claim in a manner which, taking the pleaded facts as true, states a claim as a matter of law.” (Citation omitted) .... That constraint on the application of the rule of liberality is made even more telling in this case, where plaintiff [Dr. Mullen] has filed nine matters within three years in this court in which he has appeared pro se. The court takes notice of the fact that plaintiff has filed seventeen actions pro se in the Circuit Court of Jackson County, Missouri, since the 1976 court year and since 1965 has appeared as plaintiff in ten other suits in Circuit Court. Additionally, he has filed untold actions pro se in the Associate Circuit Court of Jackson County, Missouri.
This is not to say that plaintiff should be criticized for his apparent litigiousness. Free access to the courts is a keystone of our democratic society. However, rules of interpretation designed to serve the naivete and lack of legal sophistication of the customary pro se pleader do not necessarily apply to him whose favorite hobby at least, if not vocation, must be the writing of pleadings and filing of lawsuits.

Mullen v. Starr, supra, at 948-49. (Emphasis in original.)

The judgment of the circuit court is affirmed.