author: CRANDALL, Judge.

text:
    Charles V. DEHNER, Marguerite J. Dehner, and Dehco, Inc., a Missouri Corporation, Respondents, v. CITY OF ST. LOUIS, Appellant.
    No. 48312.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 22, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.
    Application to Transfer Denied April 30, 1985.
    Robert H. Dierker, St. Louis, for appellant.
    John Musgrave, St. Louis, for respondents.
   CRANDALL, Judge.

Defendant, City of St. Louis, appeals from a judgment, entered on a jury verdict, in favor of plaintiffs, Charles V.- Dehner and others, for wrongful demolition of three buildings. The plaintiffs recovered $350,000, consisting of $175,000 for each of two buildings. The jury found for the City on the third building.

The City claims the judgment should be reversed because (1) plaintiffs were barred by collateral estoppel from relitigating the issue of wrongful demolition, (2) plaintiffs failed to exhaust their administrative remedies before bringing this action, (3) the court incorrectly directed a verdict for plaintiffs, and (4) the jury instructions on liability and damages were prejudicially erroneous and misleading. We reverse and enter judgment in favor of defendant.

This case centers around three abutting buildings which were owned by plaintiffs and which were located in the City of St. Louis. On April 29, 1976, the buildings were the scene of a five-alarm fire. Two of the buildings sustained fire damage. Firemen noted that the third building was in poor condition with evidence of structural problems, vandalism, and the presence of combustible debris. The buildings, vacant since 1974, had been inspected by firemen prior to the 1976 blaze and had been regarded as likely fire threats.

After the fire, the City began the paperwork to condemn the buildings as public safety hazards. Notices dated May 4, 1976, were sent to the owners and notices were posted on the buildings. The notices stated the owners had a seven-day appeal period.

Plaintiff Charles Dehner testified that on May 17, 1976, he read a notice received at his office in Overland Park, Kansas, although there was an indication the notice may have arrived at the office two days earlier on a Saturday. Mr. Dehner was advised by an attorney it would be futile to appeal because the seven-day appeal period had apparently passed. Mr. Dehner then sent his son-in-law to St. Louis to investigate; and when he arrived on May 19, 1976, he found demolition already under way. No action was taken to halt the demolition and the buildings were completely demolished.

Shortly after the fire, the City’s Land Clearance for Redevelopment Authority instituted a condemnation action as part of a plan for new development. An award was made to the plaintiffs to compensate them for the land. The City had obtained a lien against the proceeds of the condemnation award to recover the costs of demolition. The City’s attempt to obtain judgment on the lien was contested by plaintiffs. The circuit court found in favor of the City on its lien. Land Clearance for Redevelopment Authority v. Dehco, Inc., et al., No. 61107-F, Parcels 864-864A (Circuit Court, City of St. Louis, June 17, 1982), hereinafter referred to as LCRA case.

While the Land Clearance condemnation was pending, plaintiffs brought this action for damages for wrongful demolition. The cause was transferred to St. Louis County on a change of venue.

At trial most of the evidence by both sides consisted of testimony regarding the extent of damage to the buildings and their value prior to demolition. The City presented evidence that demolition had proceeded under a City ordinance, St. Louis, Mo., Revised Code § 57023, par. 124.4 (1980), which allows for notice merely by posting a notice on the building. Plaintiffs asserted at trial that the City had to proceed under § 67.410, RSMo (Supp.1984), which requires notice by registered or certified mail. There was no evidence the City met the requirements of § 67.410.

The trial court directed a verdict for plaintiffs, stating that the City had to “comply with the statute explicitly,” a reference undoubtedly to § 67.410. The court did so despite acknowledging that its instructions would “be in conflict with other proceedings that have already been ruled on by judges previously.”

Defendant City first argues the judgment must be reversed because of the doctrine of collateral estoppel. The City claims that the issue of whether the three buildings were wrongfully demolished was fully litigated in the LCRA case in which the City enforced the lien on the proceeds of a condemnation award.

‘It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form the issue may take in the subsequent action, whether the subsequent action involves the same or a different form of proceeding, or whether the second action is upon the same or a different cause of action, subject matter, claim, or demand, as the earlier action. In such cases, it is also immaterial that the two actions are based on different grounds, or tried on different theories, or instituted for different purposes, and seek different relief.’

Jackson v. Hartford Accident & Indemnity Co., 484 S.W.2d 315, 321 (Mo.1972).

The court in reviewing whether the application of collateral estoppel is appropriate should consider: (1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; and (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication.

Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979). A fourth factor also is to be considered: “whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit.” Id.

Plaintiffs argue that the first requirement has not been met in the present case. They claim that since the first judgment for the City on the lien did not specify on what grounds it was finding for the City, that it cannot be shown what specific issues were decided in the first proceeding, and that consequently it cannot be shown what issues in the later proceeding were identical to issues decided previously. It is clear, however, that specific findings are not required to have the effect of precluding new litigation on an issue. A finding which is implicit in a judgment can also have this effect. Hauber v. Halls Levee District, 497 S.W.2d 175, 178 (Mo.1973). “A former adjudication between the same parties on a different cause of action is binding as to the ultimate or supporting facts actually decided and necessarily determined in rendering the judgment, under what is called estoppel by verdict.” Hauber , 497 S.W.2d at 177. The exact issues must have been “unambiguously decided in the earlier case,” Owens v. Government Employees Ins. Co., 643 S.W.2d 308, 310 (Mo.App.1982).

In Owens the trial court quashed a garnishment without specifying reasons, and the appeals court found it was unclear which issues were determined. “Sufficient ambiguity exists to deny the application of collateral estoppel.” Id. at 310. In Owens the trial court could have relied on any of several different theories to reach the judgment it did.

In Kansas City v. Graybar Electric Co., Inc., 485 S.W.2d 38 (Mo.1972), the supreme court did not apply collateral estoppel because it was not clear what basis the trial court used to enter a judgment for a defendant who had pleaded several defenses. The court in Graybar stated, after finding collateral estoppel did not apply, that “[tjhere is nothing necessarily inconsistent between the 1961 judgment and the facts found in the present case.” Graybar, 485 S.W.2d at 43.

In the case now before us the opposite is true. A judgment for plaintiffs on their wrongful demolition claim would be necessarily inconsistent with the earlier finding that the City was entitled to a lien for demolition costs. The initial judgment for the City necessarily and implicitly found that the plaintiffs could not recover for wrongful demolition.

The court below directed a verdict for plaintiffs based on the finding the City had not complied with the notice procedures of § 67.410. Plaintiffs clearly had raised the notice issue under § 67.410 in the LCRA case. Even without reference to the directed verdict, plaintiffs in their brief state: “The case below thus proceeded on the premise recognized by all parties that the City could be held liable either if the buildings’ condition did not warrant demolition or if the procedures employed by the City in so acting to demolish them did not conform to the governing law.”

Plaintiffs argue that the City raised several grounds in the LCRA case upon which the trial court could have relied. Plaintiffs claim the City cannot point to any issue which was unambiguously decided in the first case. One scenario plaintiffs assert is that the LCRA court may have found plaintiffs had not exhausted their administrative remedies. But if the exhaustion doctrine prevented plaintiffs from blocking the City from obtaining judgment on a lien for demolition costs, it would also prevent recovery in a wrongful demolition action. We cannot find a reason which the LCRA court might have relied upon for its judgment for the City which would not have prevented recovery by plaintiffs in the latter proceeding. By implication, the LCRA court found the City had followed proper procedures for demolition and was entitled to demolition costs.

Plaintiffs argue that the principle of collateral estoppel does not apply here because they had a significantly heavier burden of persuasion in the initial action than in the subsequent action. Shaffer v. Terrydale Management Corp., 648 S.W.2d 596, 608 (Mo.App.1983). Plaintiffs cite to § 88.854, RSMo (1978), which states that a special tax bill is prima facie evidence of what it contains. They also cite to City of Jackson v. LaChance, 372 S.W.2d 479, 482 (Mo.App.1963), interpreting § 88.854 to require the party objecting to the tax bill to convincingly contradict the evidence included in the tax bill. Plaintiffs claim La-Chance imposed a stronger burden of proof on them in the first action than in the later proceeding. However, § 88.854 and its LaChance interpretation are not applicable here. Section 88.854 was not the statute used here so the LaChance interpretation is not applicable. The City ordinance on special tax bills does state that special tax bills are prima facie evidence of what they contain, but there is no case law interpreting what standard of proof is required. The City correctly asserts that pri-ma facie evidence and burden of proof are two separate doctrines. Prima facie evidence allows a party to shift the burden of going forward with the evidence to the other party, but, absent a statutory provision to the contrary, does not shift the burden of proof. Frank v. Wabash Railroad Co., 295 S.W.2d 16, 22 (Mo.1956). Prima facie evidence does not require a verdict for the party whose contention it supports. State ex rel. State Dept, of Public Health and Welfare v. Ruble, 461 S.W.2d 909, 913 (Mo.App.1970).

We therefore hold that collateral estop-pel prevents relitigation of the issue of wrongful demolition. In view of our holding we do not address the other points raised on appeal.

The judgment of the trial court is reversed and judgment is entered in favor of the defendant, the City of St. Louis. Rule 84.14.

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

      . We also overrule plaintiffs’ motion to strike portions of the City’s brief. Plaintiffs argue that the City’s appendix to its brief, containing materials from the case of Land Clearance for Redevelopment Authority v. Dehco, Inc., et al., are not part of the record on this appeal. The trial court below took judicial notice of the record of that prior proceeding, but plaintiffs argue defendant should have specifically offered the record into evidence, citing, e.g., First National Bank of Carrollton v. McClure, 666 S.W.2d 434, 436 (Mo.App.1983) and State v. Cullen, 646 S.W.2d 850, 855 (Mo.App.1982). Here the record made by the trial judge in this case shows that he carefully considered the record of the other proceeding. It was therefore part of the evidence of the case and is properly part of the record on appeal.


source: Caselaw Access Project

author: SIMON, Presiding Judge.

license: Public Domain

text:
    Winford L. STOKES, Appellant, v. STATE of Missouri, Respondent.
    No. 48207.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26,1985.
    Application to Transfer Denied April 30, 1985.

      Robert J. Maurer, Asst. Public Defender, Clayton, for appellant.
    Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.
   SIMON, Presiding Judge.

Winford L. Stokes, movant, appeals from a judgment denying his Rule 27.26 motion after an evidentiary hearing. We affirm.

His motion sought to vacate judgment imposing a sentence of death, following a jury trial, on a charge of capital murder. Section 565.001 RSMo:1978. This judgment was affirmed on appeal in State v. Stokes, 638 S.W.2d 715 (Mo. banc 1982).

Movant contends the trial court erred: (1) in upholding his conviction and death sentence because, as a result of the ineffective assistance of his trial counsel, movant was forced to trial when the state withdrew its original plea offer; (2) in not finding a speedy trial violation when movant was arraigned one year and thirty-one days (396 days) after the filing of his indictment; and (3) in not finding a deprivation of his state and federal constitutional rights to effective assistance of counsel.

Our review is limited to whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.-26(j). The trial court’s findings and conclusions are clearly erroneous only if a review of the entire record leaves the court with a definite and firm impression that a mistake has been made. Gentile v. State, 637 S.W.2d 30, 32 (Mo.App.1982).

Prior to his capital murder conviction in St. Louis County, movant pleaded guilty in the Circuit Court of the City of St. Louis on September 10, 1979, to second degree murder, two counts of first degree robbery, armed criminal action, two counts of escaping custody and stealing a motor vehicle. Movant was sentenced for the seven felonies to concurrent terms of imprisonment of fifty years. Movant’s Rule 27.26 motion to vacate these convictions was denied and the judgment denying the Rule 27.26 motion was affirmed in Stokes v. State, 671 S.W.2d 822 (Mo.App.1984). We borrow freely from that opinion’s recitation of facts without the use of quotation marks.

In September 1979, movant had seven felony charges, including capital murder, pending against him in the St. Louis Circuit Court, and another capital murder charge pending against him in St. Louis County. On the day set for the trial of the city charges the state offered to reduce the capital murder charge to second degree murder and recommend a sentence of fifty years with the sentence to run concurrent with the sentences for the other six felonies. The offer was conveyed to movant who wanted to know about the disposition of the pending capital murder charge in St. Louis County. The assistant city circuit attorney and defendant’s attorney spoke with the first assistant prosecuting attorney in St. Louis County, who agreed to reduce the capital murder charge to second degree murder, and recommend fifty years to run concurrently with the sentences received in the city. This offer was conveyed to movant and he agreed to it. The city and county agreements encompassing all charges in the city and county were discussed with the city trial judge, who said he had no objection to the arrangement. Thereafter, defendant pleaded guilty to the seven felonies in the city and was sentenced in accordance with the plea agreement.

Approximately 10 days later, movant was transferred to St. Louis County. The county trial judge was informed of the plea arrangements and stated he had no objection to it. The state filed an amended information reducing the capital murder charge to second degree murder. According to defendant’s attorney:

[a]t some point during the plea Winford decided he didn’t want to deal. And the Judge said to him, “Well, are you going to plead guilty?” and he said, “No.” and I said, “What’s wrong?” and he said, “They’re lying on me.” And I said, “What do you mean they’re lying on you?”
Apparently the newspapers had reported inaccurately the plea downtown and said that it was all consecutive time. And I said, “Well, you heard the Judge yourself downtown.” But he dug his heels in and said, “No, I’m not taking any kind of a plea.”
So at that point the state frankly got miffed and withdrew their offer. And the Judge said, well, there was nothing he could do about it. All he could do was schedule the case for trial.

That afternoon, movant’s attorney spoke to movant and movant agreed to again accept the plea offer. The next day, mov-ant’s attorney communicated this to the office of the St. Louis County Prosecuting Attorney, but they refused to reinstate the offer. Following a jury trial, movant was convicted of capital murder.

Movant’s first point alleges error in the court’s failure to enforce the original plea agreement, i.e., reducing the capital murder charge to murder second degree and a concurrent fifty year sentence, since his trial counsel’s actions deprived movant of effective assistance of counsel. The Rule 27.26 motion court specifically found that trial counsel had thoroughly explained the offer of the reduced charge with concurrent time to movant who encountered no problem when he entered his plea in the city. The court also found that movant’s trial counsel had approached the county prosecutor’s office the day after movant had refused to plead in the county to explain his client’s actions in an effort to have the original offer of the reduced charge with concurrent time renewed. This finding is supported by substantial evidence as the facts previously recounted indicate.

Movant further argues in this point that the state should not have been permitted to withdraw its plea offer in light of the attendant circumstances, including movant’s confusion over an inaccurate newspaper report, his partial performance of the total plea agreement by entering a guilty plea in the city, and the brevity of his consultation with his counsel prior to his court appearance in the county.

Movant argues that the plea bargain negotiated in the city and the plea bargain in the county are a single “package plea.” Under contract principles, he theorizes his plea in the city constituted partial performance or detrimental reliance to estop the county from withdrawing its plea offer. The plea agreements, although arranged within the same time frame, are two separate bilateral contracts. The county was not bound to honor its offer where movant failed to keep his promise to enter his plea in the county.

The record clearly establishes that the movant, not the state, reneged on the plea agreement. But for the action of movant, he would have been sentenced in the county circuit court in accordance with the original plea agreement. By refusing to plead guilty, movant did not perform his part of the plea agreement. A prosecutor is justified in withdrawing from the plea agreement when the defendant does not comply with his part of the agreement. Where movant refused to plead guilty in open court and no guilty plea was entered, no constitutionally protected rights or liberty interests were triggered. Accord Ma-bry v. Johnson, — U.S. —, —, 104 S.Ct. 2543, 2546-47, 81 L.Ed.2d 437, 442 (1984). Movant also contends that the failure of the prosecution to reinstate the offer, making it a “one-day only special,” was unreasonable. We know of no duty imposed upon a prosecutor to keep a plea bargain open for any length of time, accord United States v. Pleasant, 730 F.2d 657, 664 (11th Cir.1984), especially where, as here, a prosecution’s offer is rejected at the time for the entry of the plea. Mov-ant’s first point is without merit.

Movant’s second point challenges as clearly erroneous the Rule 27.26 trial court’s conclusion that the delay of over one year between movant’s indictment and arraignment on the capital murder charge in St. Louis County was an issue properly cognizable on appeal as trial error and not at the 27.26 hearing. Points not raised in the trial court nor on direct appeal from a conviction as trial error ordinarily cannot be raised in a Rule 27.26 proceeding. Rule 27.26(b)(3). Mindful of this rule, movant asserts the delay in his arraignment violated his right to speedy trial guaranteed him under the Constitution of the United States, thus qualifying the issue for consideration here. However, our Supreme Court has declined to review trial errors of alleged constitutional dimension under Rule 27.26 in certain instances where, by reason of procedural default, the issue was not preserved for review on direct appeal. See Schleicher v. State, 483 S.W.2d 393 (Mo. banc 1972); Fields v. State, 468 S.W.2d 31 (Mo.1971). These cases are in harmony with the principle that to preserve a constitutional issue for appellate review in Missouri, it must be raised at the earliest time consistent with good pleading and orderly procedure, and must be kept alive during the course of the proceedings. Neal v. State, 669 S.W.2d 254, 256 (Mo. App.1984). Otherwise, the failure to assert the constitutional right to a speedy trial at the onset reflects a defendant’s apparent desire to delay his trial date. However, considering that Stokes has received the death penalty, we review the issue ex gra-tia on its merits, rather than rejecting this point outright on procedural grounds.

The right to speedy trial attached from the time of the indictment. State v. Morris, 668 S.W.2d 159, 162 (Mo.App.1984). The period considered in determining the length of delay is between the earliest of arrest, indictment, or information and trial. Id. Movant was indicted on June 12, 1978, and stood trial on October 22, 1979, a delay of approximately sixteen months.

The issue is whether the sixteen month delay between the time of the indictment and the time of trial resulted in a denial of movant’s right to a speedy trial. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court utilized a four factor balancing test, to be applied on an ad hoc basis, in determining whether a defendant was denied his right to a speedy trial. These factors are: (1) length of pretrial delay; (2) the reasons for the delay; (3) whether defendant has asserted his right to a speedy trial; and (4) prejudice to the defendant resulting from the delay. Id. at 530, 92 S.Ct. at 2192.

First, the length of pretrial delay was sixteen months. We will assume the sixteen month delay to be presumptively prejudicial. See State v. Harris, 673 S.W.2d 490, 493 (Mo.App.1984) (Fifteen month delay presumed prejudicial.) Second, the reason for the delay between the indictment and the trial was due apparently to movant’s incarceration in the City of St. Louis for several felonies, including capital murder, unrelated to the capital murder charge pending in St. Louis County. Although the state is required to bring the defendant to a timely trial, the reasons for the delay reflect no dereliction by the state. Third, we consider movant’s assertion of his right to a speedy trial. Movant did not assert his right to a speedy trial until his Rule 27.26 hearing. Additionally, although amounting to about one month, movant sought and obtained two continuances of his trial in St. Louis County. The inordinate delay in asserting the right to a speedy trial should weigh against a defendant. State v. Morris, 668 S.W.2d at 163[7]. Fourth, the factor of prejudice to defendant is considered. The factors to be assessed in determining whether delay resulted in prejudice to the defendant are: (1) prevention of oppressive incarceration; (2) minimization of anxiety and concern of the accused; and (3) limitation of the defendant’s ability to defend himself. State v. Harris at 494[7]. To justify a vacation of judgment, “the claimed prejudice resulting from the delay must be actual prejudice apparent on the record or by reasonable inference — not speculative or possible prejudice.” Id. Although a presumption of prejudice is created by the delay of sixteen months, the record is a true barometer of prejudice. The movant was already confined in the city on capital murder and other felony charges. The record does not indicate that the delay on the county charges caused movant anxiety or concern. Further, our search of the record fails to uncover any impediment to movant’s ability to defend himself. Here, the record rebuts the presumption of prejudice and fails to support movant’s contention. Point denied.

Movant’s final point asserts that the failure of his trial counsel to have mov-ant’s guilty pleas in the City of St. Louis set aside or to properly prepare for the sentencing phase of movant’s trial reflects ineffective assistance of counsel. To establish this, movant must show counsel did not exhibit the customary skill and diligence exercised by a reasonably competent attorney under similar circumstances. Tate v. State, 675 S.W.2d 89, 90-91[2] (Mo.App. 1984). Movant must “show that there is a reasonable possibility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, — U.S. —,—, 104 S.Ct. 2052, 2068[19], 80 L.Ed.2d 674, 698 (1984); Smith v. State, 674 S.W.2d 638, 640[4, 5] (Mo.App.1984).

Trial counsel’s decision not to challenge the guilty pleas in the city was made in light of the knowledge that, if set aside, movant would probably face trial on the capital murder and other felony charges. The Rule 27.26 court properly found this decision to be a matter of trial strategy. Movant also challenges his trial counsel’s failure to call his parents or certain expert witnesses to testify in his behalf during the sentencing phase of his trial.

In Milton v. Procunier, 744 F.2d 1091 (5th Cir.1984), the defendant argued his lawyer’s failure to offer mitigating evidence at the punishment phase of his capital murder case amounted to ineffective assistance of counsel. The court rejected defendant’s argument and concluded that the defendant failed to establish the Strickland test: that the work of his counsel was deficient and that this deficient performance resulted in prejudice to him. 744 F.2d at 1099. We note movant’s claim that his trial counsel failed to present witnesses during the sentencing phase of his trial ignores testimony in the record that movant, advised he could testify if he wished, prudently declined to do so and also did not suggest any witnesses who might testify in his behalf. The likelihood that testimony of movant’s parents in his behalf would have engendered sympathy in the jury is purely conjectural and, given movant’s infrequent contact with his parents, remote. The two expert witnesses movant now proffers as willing witnesses would have testified only that the death penalty was not a deterrent and that the Bible opposes the death penalty. This evidence in no way relates to or mitigates movant’s crime. Without deciding whether such testimony would have been proper had it been offered, we note that an attorney handling a trial is in a better position than anyone else to know how a witness’s testimony may help or hinder his client. Trial counsel’s decision not to call a witness is a matter of trial strategy which will not be lightly judged to be erroneous. Smith v. State, 674 S.W.2d at 640[6], Finally, movant contends his trial counsel was ineffective because he failed to make a long, meaningful argument during the sentencing phase of movant’s trial. We have reviewed trial counsel’s and the prosecutor’s arguments during the sentencing phase of movant’s trial, as well as the closing arguments during the guilty phase of the trial. Trial counsel’s statement, viewed in the context of the entire trial record and not just the excerpts which movant has isolated, contained strong arguments in mov-ant’s behalf. We conclude the trial court did not err in denying the movant relief under Rule 27.26.

Judgment affirmed.

STEPHAN, J., and FRED C. SCHOEN-LAUB, Special Judge, concur.


author: CRIST, Judge.

text:
    Constance A. SANDERS and Raymond Sanders, Appellants, v. H. NOURI, M.D., INC., and Hassan Nouri, M.D., Respondents.
    No. 48350.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.
    Application to Transfer Denied April 30, 1985.

      Arnold T. Phillips, Jr., St. Louis, for appellants.

      Joseph M. Kortenhof, Rochelle Kaskow-itz, Kortenhof & Ely, St. Louis, for respondents.
   CRIST, Judge.

Appeal from the dismissal of an action for wrongful conception.

Appellants (patient and her husband) brought an action against respondent (doctor) for wrongful conception. The trial court dismissed their petition as barred by the statute of limitations. Section 516.105, RSMo 1978. Patient and her husband appeal. We reverse on Counts III and IV.

Appellants’ petition presents three counts of patient against doctor. Husband joins a derivative count for loss of consortium, medical expenses, and cost of raising the child.

In Count I patient alleges the following: patient consulted doctor concerning a sterilization on or about October 10, 1980; thereafter, doctor performed the sterilization; doctor carelessly and negligently failed to remove enough of the tubes to have sterilization result; during the summer of 1981, patient saw doctor professionally regarding a missed period; on August 24, 1981, after several more visits, doctor confirmed her pregnancy; a son was born on February 5, 1982. Appellants concede the sterilization occurred on November 4, 1980. Their petition was filed on August 18, 1983. Patient and husband had two years from the date of the act complained of to bring suit. Miller v. Duhart, 637 S.W.2d 183, 188 (Mo.App.1982); Section 516.105, RSMo 1978. This was not done. Count I is barred by the statute of limitations.

In Count II of their petition, appellants allege the consultation on October 10, 1980, constituted a contractual agreement for sterilization which was breached. Patient’s pregnancy resulted from the breach.

Appellants do not show wherein and why this states a cause of action. The count does not have a factual basis for recovery. In essence, Count II alleges strict liability applied to physicians. This is not a basis for recovery. Hershley v. Brown, 655 S.W.2d 671, 674-75 (Mo.App. 1983).

In Count III appellants allege after the October 10; 1980, consultation, doctor agreed to and contracted with patient for her sterilization. During the operation, doctor removed .8 cm of the right tube and 1.1 cm of the left tube. However, in a statement concerning the operation doctor stated that 3.5 cm of each tube was removed.

Appellants allege doctor did not perform the surgical procedure to which patient consented. Patient was not apprised of the removal of smaller portions of tube. Doctor had actual knowledge he had removed substantially reduced pieces of each tube.

Appellants further allege after the operation doctor did not inform patient of the reduced amount of tube resected to prevent the possibility of a malpractice claim against himself. Relying on the doctor’s previous statements regarding the sterilization, patient engaged in normal sexual relations following the operation. She became pregnant and bore a child.

Appellants allege doctor committed a battery on patient by performing a surgical procedure on her other than the one to which she had consented. They further allege doctor fraudulently concealed this battery from his patient immediately after the operation and during patient’s later visits. We find Count III states a cause of action upon which relief can be granted.

Appellants rely on Hershley v. Brown, 655 S.W.2d 671 (Mo.App.1983), which held fraudulent concealment of a battery tolls the 2-year statute of limitations by virtue of Section 516.280, RSMo 1978. In Hersh-ley, the patient agreed to a tubal ligation. Without her consent, the doctor allegedly inserted a tubal ring instrument in the patient’s body. By implanting a foreign object in the patient, the doctor performed a different surgical procedure than agreed upon. This constituted a battery which the doctor allegedly concealed. This improper act tolled the running of the 2-year statute of limitations until the fraud was discovered or could have been discovered through reasonable diligence. Hershley, supra at 676-77; Sections 516.280 and 516.105, RSMo 1978.

The allegations in Hershley differ from those in the case at bar. Unlike the patient in Hershley, patient in the instant case did not undergo a surgical procedure different in kind from the sterilization to which she had consented. Appellants allege only a smaller amount of tissue was removed. No foreign object was implanted in the body. Appellants’ allegation of battery falls short of the standards set forth in Hershley v. Brown, supra at 676.

The scope of review in appeals from dismissal of a petition for failure to state a claim is well settled. The petition is to be construed favorably to the plaintiffs, giving them the benefit of every reasonable and fair intendment in view of the facts alleged. Ingalls v. Neufeld, 487 S.W.2d 52, 54 (Mo.App.1972). The pleader is required only to state ultimate facts. If the facts so pleaded, together with reasonable inferences that can be drawn from these allegations, show any ground upon which relief can be granted, the motion should be denied. Sutton v. Sutton, 567 S.W.2d 147, 148 (Mo.App.1978).

Although appellants’ allegations may fall short of fraudulent concealment of a battery, as presented in Hershley v. Brown, 655 S.W.2d 671 (Mo.App.1983), we find the acts complained of in Count III sufficiently allege fraudulent concealment of medical malpractice which action also tolls the 2-year statute of limitations. Section 516.280, RSMo 1978. Brewington v. Raksakulthi, 584 S.W.2d 112,114 (Mo.App. 1979).

That appellants have used the label battery rather than negligence is not fatal to their claim. In this area nomenclature is not firmly established. Some courts regard torts once considered battery as medical malpractice. Vargas v. Rosal-Arcillas, 108 Misc.2d 881, 438 N.Y.S.2d 986 (1981). An unauthorized operation in which no negligence is alleged can sound in negligence or malpractice. Physicians’ & Dentists’ Business Bureau v. Dray, 8 Wash.2d 38, 111 P.2d 568 (1941); Maercklein v. Smith, 129 Colo. 72, 266 P.2d 1095, 1098 (1954). In informed consent cases, plaintiff has been allowed to bring his action in either negligence or battery. Brown v. Wood, 202 So.2d 125, 130 (Fla. App.1967); see Annot., 89 A.L.R.3d 32, 53-54. Allegations similar to those pleaded in the case at bar have been found to state a cause of action in negligence. Hardin v. Farris, 87 N.M. 143, 530 P.2d 407 (App. 1974).

Regarding labeling, the Colorado Supreme Court has stated that the question is not whether plaintiff has alleged battery or negligence, but whether the allegations support a claim for negligence. Maerck-lein, supra, 266 P.2d at 1098. When compared with the requisite elements enumerated in Brewington v. Raksakulthi, 584 S.W.2d 112, 114 (Mo.App.1979), appellants’ allegations support a claim for fraudulent concealment of medical malpractice.

Under Brewington, six things must be proven in a fraudulent concealment claim under Section 516.280 RSMo 1978: (1) in performing the surgery doctor did or failed to do something which caused the injury; (2) doctor’s conduct was negligent; (3) doctor had actual knowledge that he caused the injury; (4) with that knowledge doctor intended by his postoperative conduct and statements to conceal from patient the fact that she had a claim against him for malpractice; (5) doctor’s acts were fraudulent, and (6) patient was not guilty of lack of diligence in not sooner ascertaining the truth. Brewington v. Raksakulthi, 584 S.W.2d at 114.

Appellants’ petition sufficiently alleges each element: (1) appellants allege doctor removed without consent smaller sections of tube than he later stated. Patient relied on statements indicating amounts removed would be sufficient for sterilization and engaged in sexual relations following the operation. Patient became pregnant and bore a child; (2) appellants allege doctor did not perform the surgery to which patient had consented. This charge can sound in negligence. See discussion infra; (3) appellants allege doctor had actual knowledge he removed substantially reduced pieces of each tube; (4) appellants allege doctor did not tell patient he removed a reduced amount of tube to conceal the knowledge of malpractice from patient; (5) appellants allege doctor’s knowledge of and failure to disclose surgical information after surgery and at successive visits of patient. Reasonable inference can be drawn from the facts alleged that doctor’s failure to reveal actual surgical procedure was fraudulent. See Brewington, supra at 115; (6) appellants allege patient returned to doctor complaining of a missed period. Doctor did not then reveal the actual nature of the operation performed.

Count III adequately states a cause of action for fraudulent concealment of medical malpractice. Judgment on the motion to dismiss is reversed and remanded as to Counts III and IV and affirmed in all other respects.

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


author: MANFORD, Judge.

text:
    Amy NELSON, b/n/f Robert J. Wharton, et al., Appellants, v. MISSOURI DIVISION OF FAMILY SERVICES, Respondents.
    No. WD 35739.
    Missouri Court of Appeals, Western District.
    Feb. 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied April 30, 1985.

      John Edward McKay, Kansas City, J.D. Williamson, Independence, for appellants.
    John Ashcroft, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondents.
    Before TURNAGE, C.J., and MANFORD and KENNEDY, JJ.
   MANFORD, Judge.

This is a civil action seeking actual and punitive damages upon alleged statutory and common law negligence. This appeal has been taken from a judgment in the form of an order of dismissal. The judgment is affirmed.

Four points are presented, which in summary charge that the trial court erred in (1) failing to acknowledge a civil cause of action under § 210.145, RSMo 1978, (2) barring the cause of action under the public duty rule, (3) failing to acknowledge a cause of action under the common-law rescue doctrine, and (4) barring the cause of action on the basis of sovereign immunity because of expressed consent under § 207.-020.1, RSMo 1978.

Because of the disposition of this appeal, appellants’ points are neither reached nor ruled. In addition, only a brief summary of the pertinent facts is necessary.

In their brief, appellants generally charge that two “hot line” calls were made to report child abuse. These calls allegedly occurred in November, 1978 and May, 1979. It is alleged that these calls were reports of child abuse perpetrated by the natural mother of the children, along with others. Since this matter was first filed and ultimately disposed of in the United States District Court (Western District-Missouri), a more detailed account of the facts can be found in that case. See Nelson v. Freeman, 537 F.Supp. 602 (W.D.Mo.1982).

The following facts are those pertinent to the disposition of this appeal.

On September 24, 1980, appellants filed this claim in the United States District Court, Western District of Missouri. There followed an amended complaint which no longer named the Department of Family Services (respondent herein and hereinafter the D.F.S.), and another individual employee was named as a co-defendant. The D.F.S. was excluded in the amended complaint due to a ruling by the federal court that the D.F.S. was immune from such action in the federal court by virtue of the 11th Amendment to the United States Constitution. The remaining defendants were the Director of the Division of Farhily Services, the supervisor of Jackson County Child Abuse Hotline caseworkers, and two caseworkers. These defendants were all employees of the D.F.S..

The negligence alleged in both the federal proceeding and the present action was based upon the same circumstances, that is, upon an alleged failure to investigate.

The United States District Court ultimately granted summary judgment to the favor of the remaining defendants. See Nelson, supra. The federal proceeding was a diversity of citizenship proceeding, and the federal court concluded that the law of Missouri governed under the rule announced in Erie Railroad Co. v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and that the facts did not state a cause of action because the Missouri child abuse statute created only a public duty and not any duty to individuals.

After the federal court had dismissed the federal proceedings against the D.F.S., and on December 16, 1980, appellants initiated this action against the D.F.S. only. On February 2, 1984, the circuit court dismissed appellants’ petition. In its dismissal, the circuit court concluded:

It follows that the defendant’s motion to dismiss should be SUSTAINED on three grounds:
1. The statute did not create any duty to plaintiffs
2. That issue has already been decided against plaintiffs by the Eighth Circuit Court of appeals in Nelson vs. Mo. Div. of Fam. Services.
3. The defendant is shielded by the doctrine of sovereign immunity.

The main issue before this court is whether the doctrine of res judicata prevents appellants from proceeding. The affirmative defense of res judicata was presented by the D.F.S. and has been pursued throughout this proceeding.

Traditionally, res judicata (defined as claim preclusion) precludes the same parties or their privies from relitigat-ing the same cause of action. This is to be distinguished from collateral estoppel (defined as issue preclusion) which precludes the same parties or those in privity from relitigating issues which have been previously litigated. American Polled Hereford v. City of Kansas City, 626 S.W.2d 237 (Mo.1982).

For res judicata to be applicable, there must generally be: (a) identity of the thing sued for, (b) identity of the cause of action, (c) identity of the persons or parties to the action, and (d) an identity of the quality of the person for or against whom the claim is made. It has been held, “The rule stated is, however, general and not exclusive.” Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118, 122 (1944).

Res judicata also mandates that a former judgment shall be a bar to the subsequent maintenance of an action involving the same material facts or question and applies not only against parties of record in the former action, but against person or entities in privity with parties to the action. Varnal v. Kansas City, 481 S.W.2d 575 (Mo.App.1972). This principle is partieulary applicable with respect to governmental bodies or units, their officers, and employees. Thus, it has been held in Varnal at 579:

Generally a governmental body and its officers, boards, commissions, agents, and representatives form but a single entity with respect to application of the rule of res judicata, so that the governmental body may be bound by judgments obtained in actions in which its authorized representatives were parties.

In Varnal, the court found privity between a city employee and the municipality as employer. The court also noted that there was no showing of any variance between the case against the employee in the federal court and the case in the state court against the municipality which employed the original employee defendant. The court also pointed out that the same material facts or questions were in issue in both cases and that the plaintiffs had their day in court with full opportunity to try their case.

The record herein reveals that the present case involves the same parties as plaintiffs in both the federal and state proceedings. The defendants in the federal proceedings were all sued as employees of the D.F.S.. The D.F.S. is the defendant in these proceedings. The rule in Varnal declares that the D.F.S. herein is in privity with the employee defendants in the former federal proceeding. The same cause of action, negligence, was presented in the federal proceeding as it has been in these proceedings. Stated another way, appellants have asserted the same allegations of negligence against the D.F.S. in these proceedings that they asserted against the employee defendants in the federal proceedings. The federal court previously found that there existed no cause of action under the statute which required investigations of reported child abuse cases under § 210.145, RSMo 1978. If there is no duty to appellants under the statute, it does not matter whether they are suing the employees of an agency or the agency itself, the result is the same. Vamal, supra.

While appellants assert the aforementioned points before this court, these points need not be reached or ruled in light of the application of the doctrine of res judicata.

The judgment of dismissal is affirmed.

All concur.

      . Affirmed 706 F.2d 276 (8th Cir.1983).


author: KENNEDY, Presiding Judge.

text:
    David SWEET and Colleen Sweet, Respondents, v. HERMAN BROTHERS, INC., and Fruehauf Corporation, Appellants, Herzog Contracting Corporation, Respondent.
    No. WD 35927.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied April 30, 1985.
    John K. Thomas, St. Joseph, for appellant Herman Bros., Inc.
    George A. Barton, Kansas City, for Frue-hauf Corporation.
    Richard A. Heider, St. Joseph, for respondents Sweet.
    Jeffrey B. Davison, St. Joseph, for Her-zog Contracting Corp.
    Before KENNEDY, P.J., and DIXON and LOWENSTEIN, JJ.
   KENNEDY, Presiding Judge.

Plaintiff David Sweet was an employee of Herzog Contracting Corporation on September 10, 1981 when he sustained burns from a spill of hot asphalt as he was unloading a tanker truck. He received workers’ compensation benefits from Herzog or its insurer. The present action for damages is brought by Sweet and his wife against the owner of the tanker truck, Herman Brothers, Inc., and the manufacturer thereof, Fruehauf Corporation. The plaintiffs’ petition alleges that a valve on the tanker truck was defective and unreasonably dangerous and that such defect caused Sweet’s injuries.

Herman Brothers and Fruehauf, pursuant to leave granted by the court, filed a third-party petition against Herzog, plaintiff David Sweet’s employer, alleging that Sweet’s injuries were caused in whole or in part by Herzog’s negligence, and seeking contribution from Herzog for its proportionate contribution to the total causation of Sweet’s injuries.

Later Herzog’s motion to dismiss the third-party petition was granted. It is this order of dismissal that is now before us on appeal. The question presented is whether Herzog, under the workers’ compensation immunity provision of § 287.120.1, RSMo 1978 is immune from suit for contribution, or if its negligence counts in any way under the comparative fault principles of Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), and under the provisions of the Uniform Comparative Fault Act which were adopted by the Supreme Court in that case.

Employer Herzog says the issue is settled by State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979), which held that the employer’s statutory immunity under section 287.120.1 shielded the employer from any liability for contribution under the apportionment of fault doctrine of Missouri Pacific Railroad v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978).

We think Herzog’s position is correct and we affirm the trial court’s judgment.

Maryland Heights, of course, preceded Gustafson v. Benda. It is the position of appellants Herman Brothers and Fruehauf that Gustafson v. Benda and the provisions of the Uniform Comparative Fault Act have introduced a new approach, and that section 287.120.1 does not any longer furnish an impenetrable shield protecting the workers’ compensation employer from all liability for contribution if his fault contributes to the employee’s injury. They suggest three different approaches, which are thus summarized in appellant’s brief:

In Point I, appellants suggest that the liability of the defendants should be reduced in accordance with the relative degree of fault of the employer in causing the employee’s injury, up to a maximum of the employer’s subrogation interest in the employee’s lawsuit against the defendants. To the extent the employer is found at fault in causing the employee’s injuries, his subrogation interest would be reduced accordingly.
In Point II, defendants propose that they would be liable only for their respective percentages of fault, and that the employer be treated as a released party under § 6 of the Uniform Comparative Fault Act.
In Point III, defendants suggest that contribution be allowed against the employer.

As between the other tortfeasors and the employer, we do not see that Gustafson v. Benda has in any way changed the fundamental apportionment of fault principles announced by Whitehead & Kales, which were in effect at the time of the Maryland Heights decision. All the appealing arguments which Herman Brothers and Frue-hauf make for one or the other of the three alternative positions urged upon us were just as relevant under Whitehead & Kales before Gustafson v. Benda as after the latter decision.

There is nothing about Gustafson v. Benda or the Uniform Comparative Fault Act which eliminates the principle that liability for contribution depends upon the existence of actionable negligence of the defendant toward the plaintiff. In the absence of actionable negligence toward the plaintiff, an alleged tortfeasor is not liable to other defendants for contribution. That is a fundamental principle of the apportionment of fault doctrine under Whitehead & Kales. Kendall v. Sears, Roebuck & Co., 634 S.W.2d 176,179 (Mo. banc 1982); Safeway Stores v. City of Raytown, 633 S.W.2d 727, 730 (Mo. banc 1982); Missouri Pacific Railroad v. Whitehead & Kales Co., 566 S.W.2d at 468. And see, for an intelligent discussion of the principle, Downie v. Kent Products, Inc., 420 Mich. 197, 362 N.W.2d 605 (1984). It remains a fundamental principle of the comparative fault system under Gustafson v. Benda. Section 4 of the Comparative Fault Act says: “(a) A right of contribution exists between or among two or more persons who are jointly and severally liable upon the same indivisible claim for the same injury, death or harm....” Gustafson v. Benda, 661 S.W.2d at 24. Unless the plaintiff has (or had) a cause of action against the person from whom contribution is sought, that person is not liable for contribution to other defendants.

That a workers’ compensation employer is not liable for contribution under the Uniform Comparative Fault Act is borne out by the Commissioner’s comment to § 6 of the Uniform Comparative Fault Act, which states as follows:

Worker’s compensation. An injured employee who has received or is entitled to worker’s compensation benefits from his employer may ordinarily bring a tort action against a third party, such as the manufacturer of the machine that injured him, and recover for his injury in full. Under the rule in most states, the defendant is not entitled to contribution from the employer, even though the employer was negligent in maintaining the machine or instructing the employee in its use. This casting of the whole loss on the tort defendant may be unfair and greatly in need of legislative adjustment. It is so affected by the policies underlying the worker’s compensation systems, however, and these policies vary so substantially in the several states that it was felt inappropriate to include a section on the problem in a uniform act. (Emphasis added.)

Gustafson v. Benda, 661 S.W.2d at 27.

Thus the Comparative Fault Act refers us back to the “policies underlying the worker’s compensation systems ... in the several states”. That policy, as expressed in Maryland Heights, is as follows:

We need not examine the breadth and scope of Whitehead & Kales, supra, because the question is answered by section 287.120.1, RSMo 1978, which provides:
1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person....
The statute, supra, is clear and unambiguous. It operates to release the employer from all other liability.

588 S.W.2d at 490.

We affirm the judgment of the trial court.

All concur.

      . If a plaintiffs remedy against a certain tort-feasor is barred by limitations, that tortfeasor may yet be liable to other tortfeasors for contribution. See State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764 (Mo. banc 1984) and Rowland v. Skaggs Companies, 666 S.W.2d 770 (Mo. banc 1984). Presumably released tort-feasors are not liable for contribution, Sec. 6 Comparative Fault Act, 661 S.W.2d at 26, putting to rest a degree of confusion about that subject springing from State ex rel. Tarrasch v. Crow, 622 S.W.2d 928 (Mo. banc 1981) and later comments in Kendall v. Sears, Roebuck & Co., supra, 634 S.W.2d at 181, 182 and in Gustafson v. Benda, 661 S.W.2d at 14.


author: TITUS, Judge. CROW, Presiding Judge,

text:
    Eugene HOLT, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 13883.
    Missouri Court of Appeals, Southern District, Division Three.
    March 19, 1985.
    David Robards, Joplin, for movant-appel-lant.
    William L. Webster, Atty. Gen., Mark A. Richardson, Asst. Atty. Gen., Jefferson City, for respondent.
   TITUS, Judge.

Eugene Holt was jury-convicted of second degree murder in the Circuit Court of New Madrid County. His conviction and sentence to life imprisonment was affirmed on appeal. State v. Holt, 592 S.W.2d 759 (Mo. banc 1980). This appeal concerns Holt’s objection to the court nisi’s dismissal of his pro se Rule 27.26 motion without an evidentiary hearing based upon the state’s “Motion to Dismiss or For Summary Judgment.”

Holt, now movant, on November 29, 1983, filed his pro se Rule 27.26 motion in the Circuit Court of New Madrid County in form mandated by the Appendix to the rule. On the first page of the motion following the printed instruction that “This motion must be filed in the Circuit Court which imposed sentence,” appeared two typewritten paragraphs added to the form by movant. The second such paragraph (the first being for appointment of counsel) reads: “II. MOTION FOR DISQUALIFICATION OF JUDGE, STATE EX REL. CARVER v. WHIPPLE, 608 S.W.2d 410 (Mo. Banc).”

On December 5, 1983, the prosecuting attorney filed a “Motion to Dismiss or For Summary Judgment” directed at movant’s Rule 27.26 motion. On January 19, 1984, movant filed “Response to the Motion to Dismiss Requesting Appointment of Counsel For Further Proceedings Under Rule 27.26.” This response was filed pro se, notwithstanding that, as indicated on the docket sheet for the case, counsel was appointed for movant on November 30, 1983.

There never was a disqualification of the circuit judge of New Madrid County as moved for by movant on the first or front page of his Rule 27.26 motion. The record here also shows no compliance with the mandatory requirements imposed upon appointed counsel as set forth in Rule 27.-26(h). Clearly, there was no effort made by said appointed counsel (different from the one now representing movant on appeal) to cause the judge’s disqualification as required by Rule 51.05. Neither did the attorney undertake to amend the pro se motion. Although some seven months elapsed between the lawyer’s apparent appointment and when the state’s motion was argued July 17, 1984, with movant absent, there is no suggestion in the material forwarded this court that movant’s then counsel had ever corresponded or conferred with movant regarding the motions or any related problems.

A point relied on by movant on appeal is that the trial court erred in disposing of movant’s Rule 27.26 motion because when movant moved for disqualification of the judge that judge was thereafter without jurisdiction to proceed in the case and, therefore, the actions taken by said judge were a nullity. We agree.

The state’s only challenge to this point is that no error appeared because movant’s statement was inadequate to disqualify the judge in that it stated only: “Motion for Disqualification of Judge, State ex rel. Carver v. Whipple, 608 S.W.2d 410 (Mo. banc).” We disagree.

In Fulsom v. State, 573 S.W.2d 116, 117 (Mo.App.1978), it was claimed there was no “attempt to comply with Rule 51.05” because the Rule 27.26 motion only sought disqualification of the judge. The judgment entered by the “disqualified” judge was reversed and remanded for, as observed in Hontz v. State, 574 S.W.2d 522, 525 (Mo.App.1978), “Fulsom represents the view of modern cases with respect to requests for change of judge and demonstrates the trend towards eliminating technical grounds for denial of such requests.” The second paragraph added to the Rule 27.26 motion here was labeled “Motion for Disqualification of Judge.” While there may be some technical distinction between “change” and “disqualification” of a judge, we are not prone to hold a pro se movant to knowledge of such, as both seek the same end. We cannot conceive that the state is serious when it says the second paragraph added to the Rule 27.26 pleading did not constitute a “motion” because there was “no motion in the record nor attached to the petition seeking to disqualify the Judge.” We know of no rule or requirement mandating that such a motion be separately submitted. Likewise, the omission to specifically refer to Rule 51.05 cannot defeat movant’s quest, for the case cited, State ex rel. Carver v. Whipple, supra, is steeped with references to and the requirements of said rule. In other words, “The authority [movant] cited made mandatory disqualification by the ... trial judge.” Manis v. State, 659 S.W.2d 337, 339 (Mo. App.1983). In Fulsom, supra, as here, the trial judge received notice of movant’s claim with respect to disqualification of the judge by its inclusion in the motion itself and, on appeal, it was noted that Rule 51.05 requires the judge sought to be disqualified to sustain the motion and transfer the cause to another judge to try the case.

The judgment is reversed and the cause is remanded. Movant’s request for oral argument is denied.

PREWITT, C.J., and FLANIGAN and MAUS, JJ., concur.

CROW, P.J., concurs in result only and files opinion.

CROW, Presiding Judge,

concurring.

I concur in the result but am troubled by the haziness surrounding the change of judge issue presented by the record before us. The only indication in the record that appellant desired to exercise his right under Rule 51.05 to a change of judge is the cryptic paragraph numbered “II” on the first page of his motion. That paragraph is quoted in full in the majority opinion. The paragraph was, of course, placed on the motion before it was filed and, consequently, before the matter was assigned to any judge.

Judge Bailey, who entered the judgment whence comes the instant appeal, was not the judge who presided at the trial which resulted in the underlying conviction. Indeed, Judge Bailey was not a circuit judge during the time those proceedings were pending, having become circuit judge in 1981. Official Manual, State of Missouri, 1983-1984, p. 238.

At the time appellant’s motion to vacate was filed, Judge Bailey was the only circuit judge of Judicial Circuit 34, comprising New Madrid and Pemiscot Counties. § 478.160, RSMo 1978. It may therefore be that appellant anticipated his motion to vacate would be heard and determined by Judge Bailey, that he (appellant) did not want the matter to be adjudicated by Judge Bailey, and that paragraph “H” on the first page of appellant’s motion was an effort by appellant to exercise his right under Rule 51.05 to the one change of judge to which he was entitled. Rule 51.06(a).

Whether the foregoing was in fact what appellant had in mind is uncertain, however, as there was no protest by appellant’s attorney to Judge Bailey when the arguments on the State’s motion to dismiss or for summary judgment were heard by Judge Bailey on July 17, 1984. One could reasonably assume that if appellant was truly serious about a change of judge from Judge Bailey, some mention of the matter would have been made by appellant’s attorney at the start of that hearing.

Be that as it may, in order to avoid problems of this nature in the future, the trial courts could, when faced with motions to vacate prefaced by paragraphs such as paragraph “II” of appellant’s motion, ascertain at the outset that the moving party is aware of the identity of the judge to whom the motion has been assigned and that such judge is indeed the one from whom such party seeks the lone change to which he is entitled.

Inasmuch as it is at least inferable from the record in the instant ease that appellant anticipated his motion to vacate would be assigned to Judge Bailey and that it was Judge Bailey from whom appellant desired a change of judge, I cannot disagree with the result reached by the majority opinion. I therefore concur in the result.

      . References to rules are to V.A.M.R.

      . Hon. AJ. Seier, as Special Judge, conducted that trial. State v. Holt, 592 S.W.2d 759 (Mo. banc 1980).

      . In addition to Judge Bailey, the Circuit Court of New Madrid County has an associate circuit judge, thus it is possible the matter could have been assigned to him. § 478.240.2, RSMo 1978.

      .As noted in the majority opinion, the attorney representing appellant on this appeal is not the attorney who represented appellant at the hearing before Judge Bailey, and appellant was not brought to court for that hearing.


author: PER CURIAM.

text:
    Joseph DONNELL, Pro Se, Appellant, v. GENERAL MOTORS ASSEMBLY DIVISION, Respondent.
    No. 48382.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 19, 1985.
    Joseph Donnell, pro se.
    John L. Harlan, Jr., Harlan & Harlan, St. Louis, for respondent.
   ORDER

PER CURIAM.

Joseph Donnell appeals from a decision of the St. Louis City Circuit Court, affirming the final judgment of the Labor and Industrial Relations Commission which resulted in a $4,366.95 award for Donnell. The evidence supports the findings of the Commission and no error of law appears. No jurisprudential purpose would be served by a written opinion. The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


author: CLEMENS, Senior Judge.

text:
    Kenneth Ray CLEMENTS, Respondent, v. Mary Lee CLEMENTS, Appellant.
    No. 48425.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 19, 1985.
    William R. Gartenberg, Clayton, for appellant.
    Donald Aulbert, St. Louis, for respondent.
   CLEMENS, Senior Judge.

Appellant wife challenges the three-year limit on the $100 weekly maintenance award granted her. We reverse and remand with instructions to delete that time limit from the decree.

The record shows wife’s financial needs will not improve in three years. At her husband’s urging the wife had always devoted her time to keeping house and rearing their two children. She had no vocational training nor had she worked for over 30 years. Since the husband deserted her five years ago she has been nervous and has trouble sleeping; at her doctor’s direction she regularly takes medication for this. There is no evidence the wife can ever support herself.

Three appellate decisions show the trial court erred in limiting the wife’s $100 weekly award to three years.

First, Doerflinger v. Doerflinger, 646 S.W.2d 798[4] (Mo. banc 1983) holding: “A limited award of maintenance follows an appraisal of future events. Whether a decision to limit maintenance is or is not appropriate in the circumstances depends not upon reassessment by hindsight, but upon whether there was substantial evidence at the time to justify imposition of the limitation. The remedy for the spouse who is aggrieved by a limited maintenance award is by appeal.”

In Wasson v. Wasson, 657 S.W.2d 683[2-4] (Mo.App.1983) a marriage of 18 years with factors comparable to our case the court citing Doerflinger supra, reversed and remanded the judgment limiting duration of the wife’s maintenance, holding: “The decision to limit maintenance depends upon whether there was substantial evidence at the time to justify imposition of the limitation.... The record before us does not contain substantial evidence of wife’s ability to meet her future needs.... Therefore, the maintenance award of limited duration amounted to speculation.”

Another case in point is Turner v. Turner 650 S.W.2d 662[2] (Mo.App.1983). There we remanded a decree limiting maintenance to two years, holding: “Awards of limited duration should not be based on speculation as to future conditions of the parties.... Such awards are proper only where the trial court has before it evidence of some impending change in the financial conditions of the parties or at least some reasonable expectations that such a change will occur.”

To affirm the trial court’s time-limited maintenance award here would do violence to these cited cases.

Reversed and remanded with instructions to amend the decree by deleting the time limitation on wife’s maintenance.

CRIST, P.J., and CRANDALL, J., concur.


text:
    STATE of Missouri, Respondent, v. Adell WILLIS, Jr., Appellant.
    No. 48434.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 19, 1985.
    Terry J. Flanagan, St. Louis, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CRANDALL, Judge.

Defendant, Adell Willis, Jr., appeals from his convictions, after a jury trial, of burglary in the second degree and stealing over $150. He was sentenced as a persistent offender to concurrent terms of imprisonment of fifteen years on each count. We reverse and remand.

Since defendant does not challenge the sufficiency of the evidence, it is adequate to state that substantial evidence was adduced by the State from which a jury could find beyond a reasonable doubt that defendant was guilty as charged. For reasons to be discussed below, we note that three of the five witnesses for the State were police officers. One of the officers identified the defendant as a man he saw fleeing from a car the night of the burglary. Two officers testified that the car contained the stolen goods.

Defendant first alleges error in the trial court’s failure to sustain his challenge for cause to Venireman Tracy. The following excerpts from the voir dire examination provide the basis for defendant’s claim:

[MR. EVANS, PROSECUTING ATTORNEY]: Now, as you noticed, some of the witnesses the State will be calling to the witness stand to testify here, are police officers. Now, is there any among you here would give either more or less weight to their testimony, simply because they are police officers? Other witnesses will be lay witnesses, or non-police officers. Is there any among you here who would tend to believe a person simply because they are a police officers or solely disbelieve them simply because they are a police officer? I take it by your silence you would not.
⅝ * * ⅝ ⅜ *
[MR. EVANS]: Is there anyone here related to a law enforcement official or lawyer? Anyone in this section here? Mr. Tracy, you have your hand up? MR. TRACY: Yes.
MR. EVANS: You are related to a law enforcement official?
MR. TRACY: Yes.
MR. EVANS: Is this person a police officer?
MR. TRACY: Yes.
MR. EVANS: St. Louis County?
MR. TRACY: St. Louis City.
MR. EVANS: What relation did you bear to the person?
MR. TRACY: Cousin.
MR. EVANS: Have you had occasion to discuss your cousin’s job?
MR. TRACY: Yeah.
MR. EVANS: To any great extent?
MR. TRACY: No. I don’t see him that often.
MR. EVANS: Thank you, sir. Anyone else related to a law enforcement official?
* * * * * *
MR. EVANS: Mr. Tracy?
MR. TRACY: You didn’t ask me that question after I told you my cousin was a policeman. I think you asked us that before who the witnesses were going to be police officers. And, it is a question to me. I may place a little more reliance on a policeman.
MR. EVANS: You realize, Mr. Tracy— MR. TRACY: —Now that I have had a little time to think about it.
MR. EVANS: You realize, police officers and all witnesses in criminal cases, before they give testimony, raise their right hand and give an oath?
MR. TRACY: Yes.
MR. EVANS: If you are a juror, can you sit back and view their testimony and follow the instructions of the court, sit back and go by their demeanor?
MR. TRACY: Their demeanor and everything might influence me more than what they are saying, just the fact they are a police officer.
MR. EVANS: Is this due to your relationship to your cousin, the detective? MR. TRACY: Yes.
MR. EVANS: Thank you for your candor, Mr. Tracy. Is there anyone else who would like to ask anything here? Does anyone know any attorneys and have any close dealings with attorneys, or friends?
******
[MR. COFMAN, DEFENSE COUNSEL]: Mr. Tracy, I am not going to try and pick on you. You indicate that if a police officer were to come in, you might give more weight and credibility to that police officer than to anyone else who might testify?
MR. TRACY: Mainly because of the relationship with my cousin, I don’t have anything against the defendant.
MR. COFMAN: I don’t mean to pick on you, but there are some people who think well, if he were here, he is guilty and if he were some place else, he’d be innocent.
******
MR. COFMAN: My question is, is there anyone here who is going to give greater weight and credibility to the identification that a police officer might give than to maybe a lay person who would come in and testify, with the exception of Mr. Tracy? Okay. Mrs. Wolfe, you feel you would?
MS. WOLFE: I feel that I consider a police officer a trained observer and I would give that identification more credibility than an ordinary person.
MR. COFMAN: Mr. Mulcahy?
MR. MULCAHY: Same thing.
MR. COFMAN: You feel they wpuld gather certain experience through training that would better allow them to identify someone?
MR. MULCAHY: Just that they are a trained observer. As such, I would put more credibility into their observation than I would the untrained person.
MR. COFMAN: Mr. Tracy?
MR. TRACY: That has nothing to do with my relationship with my cousin. I feel the same way these people would.
******
MR. COFMAN: Mr. Tracy, speaking about fair and impartial, the cliche is, what do you feel, based on your relationship with your cousin and giving more weight and credibility to a police officer before you hear the testimony, whether you feel you can be a fair and impartial juror in this case. You don’t feel you could; is that correct?
MR. TRACY: I feel I am apprehensive about it.
******
MR. COFMAN: We move to strike for cause Mr. Tracy, juror number 7.
THE COURT: I will overrule the Motion to Strike for Cause. I feel he has stated that his only feeling is that a police officer is a trained observer, since he agreed with the others that his only prejudice would be with that respect.
MR. EVANS: He said it might.
THE COURT: He later said it would not have any effect, whatsoever, on his trial of Willis and his feelings were the same as jurors 26 and 27.

The general principles of voir dire have been recently summarized by the Missouri Supreme Court:

To protect the defendant’s right to a jury free from objectively demonstrated and subjectively sensed partiality, he must be afforded a full panel of qualified veniremen from which to make his allotted peremptory challenges. While trial court refusal to sustain a valid challenge for cause constitutes reversible error, it is well established that the trial court has wide discretion in determining the qualifications of a venireman, and its decision thereon will not be disturbed absent a clear abuse of discretion and real probability of injury to the complaining party. A clear line cannot be drawn for all cases as to when a challenge for cause should be sustained; there will be instances in which an appellate court might have done differently but cannot say there was an abuse of discretion; each case must be judged on its particular facts; a determination by the trial judge of the qualifications of a prospective juror necessarily involves a judgment based on observation of his demeanor and, considering that observation, an evaluation and interpretation of the answers as they relate to whether the venireman would be fair and impartial if chosen as a juror. Because the trial judge is better positioned to make that determination than are we from the cold record, doubts as to the trial court’s findings will be resolved in its favor.

State v. Smith, 649 S.W.2d 417, 422 (Mo. banc 1983), cert. denied, — U.S.—, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983) (citations omitted).

Given this wide discretion, it is nevertheless true that a closer scrutinization by appellate courts is justified when the trial court does not independently examine a venireman who expresses doubt as to his ability to be fair and impartial. State v. Williams, 643 S.W.2d 832, 834 (Mo.App.1982); State v. Ealy, 624 S.W.2d 490, 493 (Mo.App. 1981). If a venireman expresses a fixed partiality toward police testimony per se, as a generic class, the bias of credibility contrary to the interest of the defendant disqualifies the venireman from service as a juror. State v. Williams, 643 S.W.2d at 834.

A review of the voir dire examination of Venireman Tracy shows a prospective juror who, at best, is uncertain and ambiguous in his answers or, at worst, is actually biased to such an extent that he would be unable to give the defendant a fair and impartial trial.

In State v. Smith, 649 S.W.2d 417, a prospective juror equivocated in his response to questions asked touching upon his ability to give the defendant a fair trial. Upon inquiry by the trial judge, the venireman was rehabilitated and the motion to strike him for cause was properly overruled. Thus the record on appeal showed a basis for the exercise of the trial judge’s discretion. In State v. Miller, 655 S.W.2d 797 (Mo.App.1983), a prospective juror initially equivocated in his answers but later rehabilitated himself. Again the record on appeal provided a basis for upholding the trial judge’s denial of the defendant’s challenge for cause.

In this case the venireman was never rehabilitated. State v. Williams, 643 S.W.2d at 834. Mr. Tracy’s expressed opinions went beyond a mere agreement with Veniremen Wolfe and Mulcahy that a police officer was a trained observer. Compare State v. Dickerson, 588 S.W.2d 190, 193 (Mo.App.1979). Tracy was related to a law enforcement officer, and because of that relationship was “apprehensive” about his ability to give the defendant a fair trial. Further, the credibility of the police officers who testified was the key issue in the case, thus making the failure to strike this venireman more significant. Compare State v. Smith, 649 S.W.2d at 424, and State v. Butler, 660 S.W.2d 225, 227 (Mo. App.1983).

We therefore find a clear abuse of discretion by the trial court in overruling defendant’s challenge for cause of Venireman Tracy. In so holding we observe that given the large pool of prospective jurors available for service in a criminal case “[ejrrors in the exclusion of potential jurors should always be made on the side of caution.” State v. Carter, 544 S.W.2d 334, 338 (Mo.App.1976).

In view of our holding, we decline to address defendant’s second point. The judgment of the trial court is reversed and the cause is remanded for a new trial.

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

      . We accept as true the documentation in the legal file which shows that defendant was forced to exercise one of his peremptory challenges to remove Venireman Tracy from the jury panel. See State v. Morrison, 557 S.W.2d 445, 447 n. 2 (Mo. banc 1977).


author: HAROLD L. LOWENSTEIN, Special Judge.

text:
    Rubin RODGERS and Elizabeth Rodgers, Respondents, v. CITY OF ST. LOUIS, et al., Appellant.
    No. 48684.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 19, 1985.

      Eugene H. Fahrenkrog, Jr., Pamela M. Triplett, St. Louis, for respondents.
    James J. Wilson, City Counselor, Robert H. Dierker, Jr., Associate City Counselor, Kathleen A. Gormley, Asst. City Counselor, St. Louis, for appellant.
   HAROLD L. LOWENSTEIN, Special Judge.

This is a personal injury claim where respondent Elizabeth Rodgers fell on a sidewalk. The petition alleged a slab in the sidewalk was negligently maintained by St. Louis and was IV4 inches below the rest of walk. A jury awarded Mrs. Rodgers $35,-000 and initially found in favor of the city on Mr. Rodgers’ consortium claim while putting in damages at zero. After being sent back twice for further deliberation, the jury finally returned a verdict for Mr. Rodgers but assessed his damages at zero. The city appeals both these verdicts.

The city’s first point is that the Rodgers failed to make a submissible case for the jury because Mrs. Rodgers’ testimony that the sidewalk where she fell “didn’t look raised” constituted a judicial admission which must be taken as true, and therefore negates a crucial element of the Rodgers’ case. A judicial admission is defined in Beck v. Edison Brother’s Stores, Inc., 657 S.W.2d 326, 328 (Mo.App.1983), as when “a party testifies unequivocally and understandingly to a material fact peculiarly within her own knowledge.”

However, when a party’s testimony is merely an opinion or an estimate, it does not have the effect of a judicial admission. In Smith v. Siercks, 277 S.W.2d 521, 525 (Mo.1955), the supreme court said this rule is especially applicable in the case of an accident or similar event “because in such a case the party’s testimony is subject to inexactness of observation and memory.” In the present case Mrs. Rodgers was merely giving her opinion on how the sidewalk looked to her, not a positive statement of fact as to the actual condition of the sidewalk. The judicial admissions rule is not applicable here.

The city’s second point the alleged defect of 1¼ inch rise between slabs of the sidewalk was of such a trivial nature that it was not actionable as a matter of law. The city cites Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562, 564 (1937), for the proposition that a municipality is “not liable for every defect or obstruction, however slight or trivial, or likely to cause injury, or for every mere inequality or irregularity therein.” However, the Taylor court went on to hold that with a slant or slope in the surface a sidewalk of IV2 inches in 8 inches, the court would not feel justified in holding, as a matter of law, such a condition is not actionable.

Furthermore, in Fischer v. Kansas City, 446 S.W.2d 451, 454 (Mo.App.1969), the court held “the depth of the sidewalk depression or elevation is not the sole factor to be considered in determining if there is, or if there is not, actionable negligence.” In Fischer the plaintiff fell after catching her heel on a raised place in the sidewalk that was one to one and one-quarter inches higher. In the present case the issue of negligence was properly for the jury and the trial court was correct in not directing a verdict for the city.

The third point in contention is whether the trial court’s action constituted prejudicial error in allowing references to the Rodgers’ impoverished financial condition. In both the opening statement and direct examination their attorney made references to the Rodgers’ inability to pay for doctor visits and for certain medicine. The Missouri Supreme Court said in Pyles v. St. Louis Public Service Company, 372 S.W.2d 114, 116 (Mo.1963), that a showing of poverty is ordinarily not material to the issues in a damage suit and consequently such evidence should be excluded.

All the Missouri cases the city cites concern a defendant’s attempt to introduce evidence of poverty in order to show an inability to satisfy a judgment. A defendant’s ability to pay has no bearing on its liability or the amount of damages. The Pyles case did involve a plaintiffs financial status yet the court found the reference “simply a way of attempting to convince the jury the respondent could not afford to loaf and would be back on her job if her physical condition permitted it.” Id. The supreme court went on to say if the remark should have been excluded, the failure of the trial court to do so was not reversible error. The same holds true in this case.

The standard of review for this court was set out in Schmid v. Langenberg, 526 S.W.2d 940, 946 (Mo.App.1975), where this court quoted Handshy v. Nolte Petroleum Company, 421 S.W.2d 198, 202 (Mo.1967). This court will defer to the trial court’s rulings “unless it appears that the protested arguments so patently pass legitimate bounds as to be manifestly prejudicial and the ruling of the trial court thereon a clear abuse of discretion.” In this ease the trial court’s, rulings did not abuse its discretion, and so the city’s third point is denied.

The last contention is that the trial court erred in denying a new trial when the jury initially returned inconsistent verdicts by finding in favor of Mrs. Rodgers’ claim, but finding against Mr. Rodgers’ on his derivative consortium claim. The court in Burtrum v. U-Haul Company of Southern Missouri, 658 S.W.2d 70 (Mo.App. 1983), held that when a jury returns verdicts for an injured spouse but against the other on a consortium claim, those verdicts are inconsistent. However, it is possible for the jury to find that although Mrs. Rodgers was injured, Mr. Rodgers sustained no damage. The city asked for a mistrial, and after it was denied, requested the court send back both verdicts for consideration by the jury. The court sent back only Mr. Rodgers’ verdict. The jury wrote back, “we are totally confused....” The court then instructed the jury to the effect that since it had found for Mrs. Rodgers it must find for her husband, but if it felt he had suffered no damage then it should put in zero damages, or if it found he did have damages the jury should assess that amount. The jury then came back with a verdict for the husband but with no damages.

In Warner v. Pruett, 599 S.W.2d 207, 211 (Mo.App.1980), this court held that when a jury returns inconsistent verdicts the trial court, “should have advised the jury that it could not accept the verdicts in the form tendered, and then returned the jury to the jury room for further deliberations.” The question presented here is whether error was committed in sending only one verdict back to the jury for correction.

The facts here are different than Warner where the direct claim of the child was denied, but the derivative claim of the father was allowed. In that situation clearly both verdicts must be sent back for further consideration. But here Mrs. Rodgers’ direct claim was allowed; her claim is in no way dependent on the consortium verdict. The trial court was not violating the Warner holding by sending back only the derivative claim. The intent of the jury here seems ascertainable — it gave an amount to the wife and then denied the husband any damages. There has been no contention by the city of Mrs. Rodgers’ verdict being excessive. The verdict against the husband has not been appealed. If any error here occurred, it did not materially affect the merits of the action. Rule 84.13(b).

The judgment is affirmed.

SIMON, P.J., and STEPHAN, J., concur.


author: DOWD, Presiding Judge.

text:
    V.S. INVESTMENT CORPORATION, and The New Village Square Flaming Pit, Inc., Plaintiffs/Appellants, Cross-Respondents, v. VILLAGE SQUARE SHOPPING CENTER and E. Jerry Hardesty and Joseph L. Johnson, Defendants/Respondents, Cross-Appellants.
    Nos. 48713, 48699.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 19, 1985.

      Brackman, Copeland, Oetting, Copeland, Schmidt & Stock, Steven W. Garrett and Paul Brackman, Clayton, for plaintiffs/appellants, cross-respondents.
    David G. Dempsey, James F. Sanders, Shifrin, Treiman, Barken, Dempsey & Ul-rich, St. Louis, and Rollin J. Moerschel and Allen D. Kircher, Hannegan, Stokes, Moer-schel & Weber, P.C., St. Charles, for defendants/respondents, cross-appellants.
   DOWD, Presiding Judge.

Plaintiffs, V.S. Investment Corporation, et al., appeal from an adverse judgment awarding them $4,129.00 damages incurred through defendants’ failure to repair its roof under Count III of their petition. Plaintiffs also seek injunctive relief (Count I) enjoining defendants from violating an exclusive use provision in their lease agreement, a declaratory judgment (Count II) regarding each parties rights as to repairs of the roof, and damages (Count IV) resulting from profits lost to a competitive restaurant in defendants’ shopping center. Defendants cross appeal seeking interest denied by the trial court on rental payments withheld by plaintiffs.

On appeal plaintiffs contend the trial court erred by (1) concluding that laches constituted a valid defense to their equitable cause of action; (2) concluding that plaintiffs sought equitable relief with unclean hands; (3) allowing the defense witness to render an opinion without being qualified as an expert; (4) entering judgment for defendants on Count IV without substantial evidence and against the weight of the evidence. On its cross-appeal, defendants contend the trial court erred in not awarding them interest on their counterclaim for past due rent.

On February 8, 1975, plaintiffs leased space in the Village Square Shopping Center from defendants to operate a restaurant known as the “Flaming Pit.” The lease contained an exclusive use provision prohibiting the defendants from leasing over 1000 square feet of space to any other dining establishment. Shortly after the execution of the lease, the parties orally agreed that defendants may operate a dining facility known as the “Pick-A-Deli.” It occupied 1400 square feet and offered a menu consisting of a wide range of foods including sandwiches and steaks as well as beer and wine. In August 1975, defendants leased space to the Magic Recipe Pizza Restaurant and Bar. Originally it occupied 800 square feet but was expanded to' 1600 square feet in June 1978.

For eight months prior to the institution of this suit, (August 1982), plaintiffs had withheld rent payments complaining of a leaky roof. Defendants eventually repaired the roof but not until the plaintiffs had incurred substantial damage to their restaurant.

In its judgment, the trial court concluded that (1) due to the oral agreement between plaintiffs and defendants concerning the Pick-A-Deli restaurant, any right to enforce the exclusive use provision had been waived; (2) plaintiffs’ unreasonable delay in prosecuting its equitable cause of action prejudiced the defendants resulting in a valid defense of laches; (3) plaintiffs’ withholding of rental payments resulted in their seeking equitable relief with unclean hands; (4) upon its own admission defendants are liable to plaintiffs for $4,192.00 water damage due to a leaky roof; (5) plaintiffs are liable on defendant’s counterclaim for unpaid rent totaling $26,046.16 without interest.

The record demonstrates that the testimony is conflicting. The resolution of the conflicting testimony, the credibility of the witnesses, and the weight to be given to the testimony were matters peculiarly within the province of the trier of fact. Rule 73.01(c) see also Kim Mfg., Inc. v. Superior Metal Treating Inc., 537 S.W.2d 424, 428 (Mo.App.1976). Our review of this appeal is constrained by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Accordingly, we have reviewed the transcript, pleadings, and the briefs under the standard of Murphy v. Carron, supra and conclude that the judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears.

We further determine that an extended opinion would serve no precedential value. This court affirms the judgment of the lower court in accordance with Rule 84.-16(b).

CRIST and CRANDALL, JJ., concur.


text:
    Benny GRIFFITH, Appellant, v. MULLENIX CORPORATION, Ivan Mullenix and Daniel Arvisu, Respondents.
    No. 49104.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 19, 1985.

      Eugene H. Fahrenkrog, Jr., Pamela M. Triplett, St. Louis, for appellant.
    Daniel P. Card, II, Donald W. Paule, St. Louis, for respondents.
   CRIST, Judge.

Plaintiff appeals the dismissal of his petition for failure to state a claim upon which relief may be granted. We dismiss the appeal.

Plaintiff’s First Amended Petition, filed February 14, 1984, contained three counts. Count I, against individual defendants Ivan Mullenix and Daniel Arvisu, alleged tor-tious interference with plaintiff’s business relationship with plaintiff’s employer, defendant Mullenix Corporation. Counts II and III, both directed solely at defendant Mullenix Corporation, respectively alleged a wrongful discharge under the Worker’s Compensation Act and attempted to state a claim under the “Prima Facie Tort” doctrine. On June 12, 1984, upon defendants’ motion, plaintiff was ordered to make Counts I and II more definite and certain, and Count III, alleging a “Prima Facie Tort,” was dismissed. This dismissal was designated a final, appealable order under Rule 81.06. No motions or notice of appeal concerning this count were filed until August 31, 1984, more than forty days following the order.

Plaintiff filed his Second Amended Petition on June 28, 1984. The two-court petition was in two counts, omitting a count alleging a “Prima Facie Tort,” and essentially pled the same facts as did the First Amended Petition, despite the order to make the petition more definite and certain. Defendants, on July 9, 1984, again moved to dismiss or, in the alternative, for a more definite statement. The court, on July 30, 1984, dismissed Count I, and ordered plaintiff to make Count II more definite and certain.

On August 13, 1984, the court, without notice to defendants, set aside its order of July 30, and dismissed both counts. On August 21, 1984, defendants’ requested the trial court to specify reasons for amending the order of July 30. The trial court responded on the record:

Pursuant to request of Defendants counsel and without objection by Plaintiffs counsel. With reference to Courts Order of August 13, 1984, the amended judgment was entered that date for the reason that counsel for plaintiffs desired to appeal the prior rulings in the instant case and felt that a dismissal of the remaining Count and an appeal at this time was the provident way to proceed.
The Court concurrs (sic), although the Court ruled that the outline of a cause of action was technically set out in Count II.

The order of August 13, 1984 did not confer proper jurisdiction of this court. We consider the order as though entered sua sponte, because plaintiff’s “request” is not present on the record. See Rule 55.-26(a). As it was entered without notice, it is therefore void, Byrd v. Brown, 613 S.W.2d 695, 700 (Mo.App.1981) and cannot stand. Dixon v. Bi-State Development Agency, 686 S.W.2d 696, 698 (Mo.App. 1982). The last valid order, of July 30, 1984, is not final and appealable.

Appeal dismissed.

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