text:
    Claudia MacLACHLAN and the Pulitzer Publishing Company, Plaintiffs-Appellants, v. Gene McNARY, et al., Defendants-Respondents.
    No. 48430.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 11, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Robert B. Hoemeke, Joseph E. Marti-neau, St. Louis, for plaintiffs-appellants.
    Thomas W. Wehrle, Clayton, for defendants-respondents.
   PUDLOWSKI, Presiding Judge.

This is an appeal from a judgment against appellants, Claudia MacLachlan and the Pulitzer Publishing Company, on their Petition for Permanent Injunction brought pursuant to Chapter 610 of the Missouri Revised Statutes. Appellants sought to enjoin respondents, who collectively form the Annexation Study Commission, from holding meetings that are closed to the public. We reverse.

Appellants in this action are the Pulitzer Publishing Company, publisher of the St. Louis Post-Dispatch, and Claudia MacLa-chlan, a reporter for the Post-Dispatch. Respondents are the twelve members of the Annexation Study Commission (Commission).

On January 28, 1984, St. Louis County Executive, Gene McNary, established the Commission. This Commission was created to examine the effects of annexations on county government and to make recommendations or proposals to deal with annexations. The recommendations and proposals were non-binding. A support staff from the County Planning Department was supplied to the Commission.

On February 1, 1984, the Commission first met. Nine members were present. Chairman, F. William Human, Jr., indicated that the first order of business would be to decide whether the meetings would be opened or closed to the public. County Counselor, Thomas Wehrle, supplied the Commission with a report that indicated the Commission did not fall within the dictates of Chapter 610 often referred to as the “Sunshine Law.”

After a short discussion, the Commission voted seven to two to close the meeting. The public was asked to leave the room. At this point MacLachlan objected to the closure of the meeting indicating the closure would violate the Sunshine Law of Missouri. After voicing her objection, Mac-Lachlan left the room.

On February 6, 1984, appellants filed their petition for Permanent Injunction and an application for a Temporary Restraining Order. On February 7, Circuit Court Judge Robert G.J. Hoester issued a temporary restraining order enjoining the Commission from conducting closed meetings.

On February 14, 1984, Wehrle entered his appearance as attorney for all respondents and filed their answer to the petition. After a hearing in which evidence was presented, Judge Hoester issued his February 17,1984 order dissolving the temporary restraining order and entering judgment in favor of respondents holding that they were not a “public governmental body” subject to the Sunshine Law. On March 9, 1984, appellants filed their notice of appeal.

In the case at bar, the sole issue on appeal is whether the Commission is a “public governmental body” under Sections 610.010 to 610.030 RSMo Supp.1982 and as such whether its meetings are “public meetings” subject to said sections.

Public meeting is defined as:

any meeting of a governmental body subject to this act at which public business is discussed, decided, or public policy formulated, but shall not include an informal gathering of members of a governmental body for ministerial or social purposes when there is no intent to avoid the purposes of this chapter.

Public governmental body is defined as:

1. Any legislative or administrative governmental entity created by the constitution or statute of this state, by order or ordinance of any political subdivision or district, or by executive order including any body, agency, board, bureau, counsel, commission, committee, department, or division of the state, of any county or of any municipal government, school district or special purpose district;
2. Any other legislative or administrative governmental deliberative body under the direction of three or more elected or appointed members having rule-making or quasi-judicial power;
3. Any committee appointed by or under the direction or authority of any of the above-named entities and which is authorized to report to any of the above-named entities; and
4. Any quasi-public governmental body.

There is no evidence which shows the Commission has legislative or administrative powers. Thus, the first category of the definition is not applicable. Similarly, the second category does not apply. The Commission is not a quasi-public governmental body, and therefore, the fourth category of the definition is not applicable. Our review deals entirely with the third category.

Appellants urge this court to find the Commission is a type three public governmental body. To arrive at this conclusion, appellants argue that County Executive, Gene McNary, is an “administrative government entity” and as such is one of the “above named entities” as these terms are used in Section 610.010(2). The circuit court in its opinion properly concluded that the Commission was appointed by an “Executive Entity.”

Respondents assert that McNary cannot be a public governmental body because he is a body of one. Black’s Law Dictionary defines entity as including a “person” or “governmental unit.” While a single member body cannot have meetings, it can have records. One aspect of the Sunshine Law is that public records be open. Thus, it is not inconsistent to hold a single member body as a governmental entity. The trial court did not err in holding McNary as such.

We next focus our attention to the third category, “any committee appointed by or under the direction or authority of any of the above-named entities and which is authorized to report to any of the above-named entities.”

The courts of this state have been called upon on frequent occasions to interpret the legislative intent underlying Chapter 610. This law reflects Missouri’s commitment to openness in government. It is beyond doubt that the Statute is to be construed liberally in favor of open government. It is the public policy of this State that public commissions exist to aid in the conduct of the people’s business. It is the intent of Chapter 610 that their actions be taken openly and that their deliberations be conducted openly.

However, respondents contend that the Commission is not subject to the Sunshine Law because they have no authority to conduct public business or perform any governmental function and possess no power to bind the county executive or the county council. In support of this argument, respondents cite Tribune Publishing Company v. The Curators of the University of Missouri, 661 S.W.2d 575 (Mo.App.1983). The trial court agreed with respondents stating “that the General Assembly intended that those entities which have the power to decide or to formulate public policy were entities to be open to the sunshine of the press.” We disagree with this contention.

In Tribune, the Missouri Court of Appeals, Western District, was faced with the task of interpreting an earlier definition of a “public governmental body.” Public governmental body was defined then as:

Any constitutional or statutory governmental entity, including any state body, agency, board, bureau, commission, committee, department, division or any political subdivision of the state, of any county or of any municipal government, school district or special purpose district, and any other governmental deliberative body under the direction of three or more elected or appointed members having rulemaking or quasi-judicial power.

The court in Tribune was asked to declare that meetings of the Curators of the University of Missouri at which any public business was discussed or decided, or public policy was formulated, be declared public meetings of a public governmental body. In addition the Court was asked to declare that certain internal audit reports, a hospital task force report, and a medical library feasibility study be declared public records of a public governmental body. The injunc-tive relief sought to enjoin the defendants from holding certain closed meetings and enjoining their refusal to make the internal audit reports, hospital task force report, and medical library feasibility study available to the public. The resolution of this case hinged on whether the Curators of the University of Missouri and the entities preparing the various reports were public governmental bodies.

To determine which entities were public governmental bodies the court looked to the previously quoted definition and reasoned:

By its very nature, the quintessence of a “public governmental body” is the power to govern by the formulation of policies and the promulgation of statutes, ordinances, rules and regulations, or the exercise of quasi-judicial power. It defies semantics to believe that the legislature intended inclusion of bodies or entities barren of the power to govern in the definition of “public governmental body.” If such were intended, a simple stroke of the pen striking the adjective “governmental” would have made it a fait accompli. Id. at 584.

The Tribune case ultimately held that the Curators of the University of Missouri, individually, were not a public governmental body and that the internal audit reports, the hospital task force report and the medical library feasibility study were not public records of a public governmental body. The Board of Curators, a nine member board that governs the University of Missouri, was held to be a public governmental body.

The internal audit reports, the hospital task force report, and the medical library feasibility study were each found not to be public records of a public governmental body because they were not prepared by persons or entities with the de jure or de facto authority of the Board of Curators to make policy decisions for the Board or to issue rules or regulations to implement the reports or study. Also the report and the study were not given to the Board of Curators so as to make them the reports of the Board of Curators, a public governmental body.

In summation, the court wrote:

Although different courts must construe different statutory provisions, it appears that the majority of other jurisdictions have generally held that ad hoc committees or citizen advisory committees, empaneled for the purpose of furnishing information and recommendations to governing or decision making entities, are not subject to the open meetings laws unless they have actual or defacto decision making authority. Id. at 587.

However, Tribune is distinguishable. The amendments to Chapter 610 in 1978 and 1982 resulted in an independent clause pertaining to committees. This clause is devoid of any requirement that the committee have the power to govern or the power to formulate public policy. Our Brothers in the Western District were not required in Tribune to consider the applicability of this amended definition.

As stated previously, the intent behind the enactment of the Sunshine Law was the performance of public business in an open and public manner, with the public able to attend and listen to the deliberations and decisions that go into the making of public policy. By enactment of the 1982 amendment to Chapter 610, it is apparent that the Legislature intended to affect the entire administrative decision-making process, not just the formal act of voting for the formal execution of an official document. It is unnecessary that an entity have binding authority for it to be subject to the Sunshine Law. It is within the meaning of the law if its determinations affect the public.

The Commission at bar affects the public. McNary’s written press release intimated the Commission would “recommend changes in the County’s makeup and delivery of governmental services.” Further, various municipal .officials of the county agreed to withdraw the proposals for annexations pending the outcome of a nine-month study on the restructuring of county government.

Respondents next argue that the Commission is not subject to Chapter 610 because it has no duty to report its findings. This argument ignores the third category of the definition of public governmental body. A committee subject to the Sunshine Law need only be “authorized” or empowered to report. To hold otherwise would circumvent the purpose of the law. A committee will not be excused from the ambit of the Sunshine Law because it fails to disclose its intention of making a report or recommendation.

Lastly, respondents contend that the Commission is not a legally constituted body because it was not created in accordance with the provisions of the Charter of St. Louis County. As such, respondents argue that the Commission is best described as a private “think tank.” We disagree.

McNary announced the creation of the Annexation Study Commission at a press conference which took place in the ninth floor board room of the County Government Center. He described in his own press release that this was “the most important commission ... appointed in [his] 18 years in public office_” This commission was charged with considering and recommending “changes in the County’s makeup and delivery of governmental services.” This is hardly a “think tank.”

In addition the Commission utilizes county offices and is assisted by county personnel. Thomas Wehrle, County Counselor, personally represented the Commission in this cause of action. This legal representation is in direct contrast to the proposition that the Commission is a non-governmental private organization. Section 5.010 of the County Charter mandates that the county counselor “shall devote all of his time to the duties of his office and shall not engage in the private practice of law.” To hold the Commission as a private entity, unassociated with the county, would result in Wehrle being in direct violation of Section 5.010. Additionally, section 3.050(8) specifically grants McNary the authority to “[p]romote and encourage cooperative relationships between the county and the political subdivisions within the county in matters relating to land use planning.” We conclude that the Commission is a legally constituted body created in accordance with the provisions of the Charter of Saint Louis County.

Recognizing that the Commission is a legally constituted committee serving the public, it follows that the meetings are public meetings under the Sunshine Law. This is because such meetings are meetings of a public governmental body at which “public business is discussed.” Section 610.010(3).

Public meetings of public governmental bodies must be open to the public except in limited circumstances. Section 610.025. Where a public governmental body intends to hold closed public meetings in contravention of Chapter 610, the circuit court where the governmental body has its principal place of business has jurisdiction to enjoin such violations. In the case at bar, the circuit court erred in denying appellants’ petition for injunctive relief. Therefore, the order of the circuit court is reversed and this cause is remanded with instructions to the circuit court to issue its injunction permanently enjoining the members of the Annexation Study Commission from holding public meetings closed to the public unless specifically authorized and in compliance with Chapter 610 RSMo.

Judgment reversed and remanded.

GAERTNER and KAROHL, JJ„ concur.

      . The Commission was intended to have thirteen members. However, at the time of this action, it was comprised of only twelve members. The members are: Gene McNary, Emmett A. Capstick, Ed Chard III, Ellen R. Conant, Harold Dielmann, James J. Egan, Paul E. Hill, F. William Human, Jr., Ollie Langhorst, H. C. Milford, Harry E. Von Romer and Roger C. Zimmerman.

      . Section 610.010 et seq., RSMo Supp.1975 as amended RSMo Supp.1977.


source: Caselaw Access Project

author: SOMERVILLE, Judge.

license: Public Domain

text:
    Verneda M. RIFFE, Plaintiff-Appellant, v. Robert D. PEELER, Defendant-Respondent, and Allstate Insurance Company, Garnishee-Respondent.
    No. WD 34846.
    Missouri Court of Appeals, Western District.
    Dec. 11, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      George E. Kapke, Cochran, Kramer, Kapke & Willerth, Independence, for plaintiff-appellant.
    George Spencer Miller, Miller & Dough-erty, Kansas City, for garnishee-respondent.
    Before DIXON, P.J., and SHANGLER and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

This is an appeal from a garnishment proceeding.

Verneda M. Riffe obtained a $35,000.00 judgment against Robert D. Peeler for personal injuries arising out of an automobile collision. Allstate Insurance Company, Peeler’s liability carrier, was summoned as a garnishee in aid of execution of the judgment rendered against Peeler. Following an evidentiary hearing in the garnishment proceeding, the trial court entered judgment in favor of Allstate, garnishee, and against Riffe, garnishor, from which judgment Riffe appealed.

The following compilation of facts drawn from a rather convoluted record serve to put this appeal in general perspective. Additional facts will be interpolated, where appropriate, during the course of addressing particular issues. On November 25, 1975, the front end of an automobile in which Riffe was a passenger collided with the rear end of an automobile operated by Peeler. According to Riffe, Peeler, after entering an intersection, “threw his car into reverse and backed into” the automobile in which she was riding. Conversely, according to a police report, Peeler told the investigating officer that his car “stalled” in the outside lane and while he was attempting to start it, he was rear ended by the automobile in which Riffe was riding.

Riffe filed an action for personal injuries against Peeler. An answer denying both liability and damages was filed on Peeler’s behalf by counsel retained by Allstate. Interrogatories were served by Riffe in the underlying personal injury action on Peeler by mailing same to Peeler’s attorney of record. Peeler’s attorney was unable to locate the whereabouts of Peeler to answer the interrogatories, and an extension of time for answering same was obtained. Peeler’s attorney, after considerable effort, obtained a telephone number and mailing address where Peeler could be contacted. A number of letters were mailed to Peeler by his attorney of record emphasizing the necessity and importance of his cooperation in defense of the personal injury action, as well as the consequences of noncooperation. Additionally, a number of appointments were scheduled by telephone for Peeler to meet with his attorney for the purpose of answering the interrogatories, all of which Peeler failed to keep. During the interim, Peeler’s attorney advised him that the underlying personal injury action had been set for trial, and that it was “important” that Peeler be present at the trial and that he should “immediately” contact the attorney.

Peeler ignored counsel’s repeated efforts by mail and telephone to obtain his cooperation in answering the interrogatories and defending the personal injury action. After the extension of time expired for answering the interrogatories, Riffe filed a motion to strike Peeler’s answer in the personal injury action as a sanction for Peeler’s failure to answer the interrogatories. Counsel for Peeler immediately advised Peeler thereof by certified mail, accompanied by instructions that it was “imperative” that Peeler “immediately” contact him and in the event Riffe’s motion to strike was sustained, Allstate would deny coverage. No response was forthcoming from Peeler. The trial court, notwithstanding written objections by counsel based on Peeler’s lack of cooperation, sustained Riffe’s motion — Peeler’s answer was stricken, an interlocutory judgment was entered in favor of Riffe and against Peeler on the issue of liability, and a trial date was set on the issue of damages. Peeler was advised of the aforementioned turn of events by certified mail, along with instructions from counsel that it was “absolutely necessary” that Peeler contact him “immediately” and that Peeler appear in court on the date the issue of damages was set for hearing as it might be “possible” at that time, if he appeared, to reinstate his “answer and avoid a judgment against him”; Peeler was further advised that if he failed to appear in court at the scheduled time, counsel would withdraw as his attorney of record and Allstate would deny coverage under its policy of insurance. Peeler failed to respond, and neither contacted counsel nor appeared in court for the scheduled hearing on the issue of damages. On the morning of the hearing just mentioned, the trial court permitted counsel to withdraw as attorney of record for Peeler. An evidentia-ry hearing on the issue of damages immediately followed, resulting in a judgment in favor of Riffe and against Peeler in the sum and amount of $35,000.00. Thereupon, counsel for Peeler, by certified mail, advised Peeler that a judgment had been rendered against him in the amount of $35,-000.00 for which he was personally liable as coverage under the automobile liability policy was denied by Allstate, and that Peeler should consult an attorney.

The long and short of the matter may be summed up as follows — Peeler utterly failed to cooperate in the defense of the underlying personal injury action from beginning to end. Suffice it to say, the automobile liability insurance policy issued by Allstate contained what may be characterized as a standard cooperation clause. At the garnishment hearing, the policy defense of noncooperation was asserted by Allstate as garnishee. The trial court found that Peeler had materially breached the cooperation clause, that Allstate was substantially prejudiced thereby, and that Allstate properly denied coverage.

Riffe raises two points on appeal: (1) the trial court erred in finding that Peeler’s failure to assist in the preparation of answers to Riffe’s interrogatories constituted a material breach of the cooperation clause since (a) Peeler was unaware of any facts which would constitute a valid defense to Riffe’s cause of action arising out of the collision, and (b) Peeler’s lack of cooperation did not materially prejudice Allstate’s ability to defend against Riffe’s cause of action; and (2) the trial court erred in finding that Peeler’s failure to cooperate “authorized” Allstate to deny coverage since (a) Allstate failed to deny coverage when Peeler’s failure to cooperate first became known to Allstate, and (b) “permitting withdrawal of insurance coverage after trial on damages is contrary to the intent of § 879.203, RSMo 1978, regulating issuance of insurance for uninsured motorist claims”.

Before seriately addressing the points raised by Riffe on appeal, certain obtaining principles of law are recalled. Cooperation clauses such as the one in question are valid and enforceable in Missouri. Hendrix v. Jones, 580 S.W.2d 740, 742 (Mo. banc 1979); and Quisenberry v. Kartsonis, 297 S.W.2d 450, 453 (Mo.1956). Hendrix is particularly significant in that it rejected the long-standing “per se rule” in this state that an “insured's unexcused failure to attend trial in and of itself constitutes a material breach of the cooperation clause”, and held that an insurer must prove “substantial prejudice” before it can deny coverage because of breach of a “cooperation clause”. Hendrix v. Jones, supra, 580 S.W.2d at 743-44. Concomitantly, “reasonable diligence” must be exercised by an insurer to secure the insured’s cooperation. Colson v. Lloyd’s of London, 435 S.W.2d 42, 45 (Mo.App.1968). Finally, appellate review of the judgment rendered by the trial court in the garnishment proceedings is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976): “[T]he decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.”

Due to the bifurcated nature of Riffe’s first point, each part will be separately addressed. Riffe asserts that the trial court erred in finding that Peeler’s failure to cooperate in answering her interrogatories constituted a material breach of the cooperation clause because Peeler was unaware of any facts which would constitute a valid defense to her cause of action. The record discloses facts raising a viable issue of liability — that Peeler’s automobile was stopped when it was rear ended by the automobile in which Riffe was riding as opposed to Riffe’s version that Peeler threw his automobile into reverse and backed into the automobile in which Riffe was riding. The record refutes Riffe’s contention that Peeler was unaware of any facts which would constitute a valid defense to her claim.

The other portion of Peeler’s bifurcated point, that Peeler’s lack of cooperation did not “materially” prejudice Allstate, is untenable. Peeler’s utter failure to cooperate with counsel in answering the interrogatories submitted by Riffe, notwithstanding repeated efforts and scheduled appointments to do so, resulted in Peeler’s answer being stricken and entry of an interlocutory judgment on the issue of liability in a case of contested liability. Moreover, Peeler’s continued course of noncooperation, i.e., failure to contact counsel or appear at scheduled hearings, compounded counsel’s difficulty in effectively defending the case on Peeler’s behalf. It strains credulity to the breaking point to say that Peeler’s total and complete failure to make himself available to answer interrogatories submitted by Riffe did not “substantially prejudice” Allstate. The result of Peeler’s lack of cooperation — entry of an interlocutory judgment on the issue of liability in favor of Riffe and against Peeler in a case of contested liability — inexorably speaks of “substantial prejudice” suffered by Allstate. The record supports that Peeler’s lack of cooperation constituted a material breach of the cooperation clause and that Allstate was “substantially prejudiced” thereby.

In the argument portion of her brief under point one, Riffe interjects that Allstate was “estopped” to deny coverage because it “failed to withdraw when the issue of noncooperation first arose.” (emphasis added) This contention flies in the face of the duty imposed upon Allstate to exercise “reasonable diligence” to secure Peeler’s cooperation. Colson v. Lloyd’s of London, supra. Riffe’s argument, from a pragmatic standpoint, appears to be that Allstate should be penalized, i.e., precluded from denying coverage, because it diligently attempted to secure Peeler’s cooperation. Moreover, Riffe’s argument ignores one of the essential elements of estoppel. As held in Martinelli v. Security Insurance Company of New Haven, 490 S.W.2d 427, 433 (Mo.App.1972), “[ajnother essential element [of estoppel] is that there must be a showing of reliance — that the injured party relied on the conduct of the insurer or was misled by it to his prejudice.” (emphasis added) As related to the instant case, the record discloses that prior to entry of the default judgment on the issue of liability counsel for Peeler advised Riffe’s attorney of record by mail of Peeler’s “extreme un-cooperativeness” and if counsel’s continued efforts to secure Peeler’s cooperation failed the only course “left open” would be to advise Allstate to deny coverage.

In view of the above, Riffe cannot realistically argue at the present time that Allstate was estopped to deny coverage because it failed to do so “when the issue of noncooperation first arose.” Prior to the time Riffe committed herself to obtaining a default judgment on the issue of liability and proving up damages she had been advised that Peeler’s continued refusal to cooperate would leave no course open to Allstate but to deny coverage. Thus, Riffe neither relied on nor was misled by Allstate’s failure to deny coverage at the very outset. Riffe’s theory of estoppel fails for want of an essential element. Martinelli v. Security Insurance Company of New Haven, supra.

Riffe’s second point is also bifurcated, thereby necessitating its division for dispo-sitional purposes. Riffe first asserts that the trial court erred in finding that Peeler’s failure to cooperate “authorized” Allstate to deny coverage. The argument tendered in support thereof, if correctly perceived by this court, is repetitive of two of the arguments offered in support of point one — “es-toppel” and failure of Allstate to prove “substantial prejudice”. These arguments have been fully addressed and disposed of adversely to Riffe, supra, and further discussion would be an exercise in redundancy-

The remaining aspect of Riffe’s second point, “permitting withdrawal of insurance coverage after trial on damages is contrary to the intent of § 379.203, RSMo 1978 [uninsured motorist coverage required]”, particularly the argument in support thereof, is, to say the least, both innovative and difficult to comprehend. The crux of Riffe’s argument appears to fault or take issue with the holding in Harrison v. MFA Mutual Insurance Co., 607 S.W.2d 137, 144 (Mo. banc 1980), that the term “uninsured motor vehicle” refers “to a vehicle whose operator or owner did not have in effect at the time of the accident an automobile liability policy with respect to the motor vehicle involved in the accident.” (emphasis added) Riffe argues de hors the record that Harrison v. MFA Mutual Insurance Co., supra, precluded recovery by her under the uninsured motorist coverage provided by another policy of insurance (Farmers Insurance Exchange). If correctly perceived, Riffe contends that breach of a cooperation clause and denial of coverage posited thereon after an accident thwarts the purpose of uninsured motorist coverage. Conduct by an insured constituting breach of a cooperation clause and grounds for denial of coverage, in the context at hand, inevitably follows, rather than precedes, the occurrence of an accident. Nothing is found in § 379.203, supra, (or as amended, § 379.203, RSMo Supp.1984), indicative of a legislative intent to excise or render unenforceable cooperation clauses in automobile liability policies. The real thrust of Riffe’s argument, however camouflaged, is that Harrison v. MFA Mutual Insurance Co., supra, should not be followed and that she should not be barred from compensation for her injuries under the uninsured motorist coverage of another policy, an issue totally foreign to the instant appeal.

Judgment affirmed.

All concur.


author: MAUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Harold Dean WILSON, Defendant-Appellant.
    No. 13494.
    Missouri Court of Appeals, Southern District, Division Three.
    Dec. 13, 1984.
    Motion for Rehearing and Transfer Denied Jan. 3, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Blair Buckley, Jr., Public Defender, Ca-ruthersville, for defendant-appellant.
    John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   MAUS, Judge.

The defendant was charged with driving while intoxicated, third offense, a Class D felony. § 577.023.1(2), 1982 Mo.Laws 687. Upon a trial by the court, he was found guilty. He was sentenced to jail for one year, but the sentence was suspended and the defendant was placed upon supervised probation on condition that he spend 60 days in jail. There was abundant evidence of the defendant’s guilt of the violation alleged to be his third offense. On appeal he attacks the admissibility of the evidence of each of his two prior convictions as a foundation for his conviction as a third offense.

The information alleged the defendant had been convicted of driving while intoxicated on December 15, 1975, in the Magistrate Court of Ripley County and on May 24, 1982, in the Circuit Court of New Madrid County. Proof of the first conviction consists of a certified copy of a judgment entry, the pertinent part of which reads as follows: “Now comes the prosecuting attorney for the state and the defendant appears in person and is formally arraigned and advised of right to counsel, and enters his plea of guilty to a charge of Driving A Motor Vehicle While In An Intoxicated Condition, and his punishment is fixed at a fine of $150.00 and costs are taxed against the defendant.” Proof of the second conviction was a certified copy of a docket sheet, the pertinent part of which reads as follows: “D appears in person & is arraigned on DWI & is informed of his right to trial & to counsel. D pleads guilty to DWI & is fined $150.00 & costs.” The docket sheet was accompanied by a Uniform Traffic Ticket. The reverse side of the Uniform Traffic Ticket has been completed to show a plea and finding of guilty of the charged offense. It was signed by the judge and certified by the clerk.

Through his astute counsel the defendant has leveled several attacks against the admissibility of that proof. His attacks are based upon the rationale developed in Baldosar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), rehearing denied, 447 U.S. 930, 100 S.Ct. 3030, 65 L.Ed.2d 1125 (1980) and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Baldosar holds that a conviction in a proceeding in which a defendant did not have or waive counsel cannot be used to enhance punishment upon a subsequent conviction when imprisonment is to be imposed. This is declared to be true even though the predicate conviction was of a misdemeanor and no imprisonment was imposed and under Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the defendant had no right to appointed counsel. Burgett, at an earlier date, held that an uncounseled conviction in a proceeding in which a defendant was sentenced to imprisonment could not be used as a basis for such enhancement. That case further declared the assistance of counsel or waiver of counsel could not be presumed from a silent record.

This rationale of the defendant’s attack is drawn from cases involving the typical habitual criminal or persistent offender statute providing for the enhancement of punishment. The Supreme Court of the United States has not expressly held the cases mentioned to be applicable to driving offenses. Some state courts have held that Baldasar is not so applicable. Smith v. State, 248 Ga. 828, 286 S.E.2d 709 (1982); Todd v. State, 168 Ga.App. 814, 294 S.E.2d 714 (1982); State v. O’Neill, 473 A.2d 415 (Me.1984). A distinction has been drawn under statutes declaring a predicate driving violation to be a civil offense: Such a violation is said to merely create a classification or a status. Schindler v. Clerk of Circuit Court, 715 F.2d 341 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1419, 79 L.Ed.2d 745 (1984). That view has been said to be supported by the proposition that an uncounseled conviction can be considered in a deportation proceeding. United States v. Robles-Sandoval, 637 F.2d 692 (9th Cir.1981), cert. denied, 451 U.S. 941, 101 S.Ct. 2025, 68 L.Ed.2d 330 (1981). Or, in a prosecution for the unlawful possession of a firearm. Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980).

However, the majority of jurisdictions hold that such rationale is applicable to driving offenses. People v. Rocha, 650 P.2d 569 (Colo.1982); State v. Medenwaldt, 341 N.W.2d 885 (Minn.App.1984). It has been said, “All instances where an enhancement follows a prior offense in which the defendant did not have the assistance of counsel in his defense are controlled by Baldasar. The fact of the prison term and not the gravity of the offense is the controlling criterion.” State v. O’Brien, 666 S.W.2d 484, 485 (Tenn.Cr.App.1984), citing State v. Ulibarri, 96 N.M. 511, 632 P.2d 746, 747-748 (App.1981).

This view has been said to be supported by the prohibition against the consideration of an uncounseled conviction in sentencing. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Or, by the fact that the use of uncounseled convictions for impeachment can amount to error of constitutional proportions. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972).

Research has not disclosed a decision of the Supreme Court of this state declaring such rationale applicable to driving offenses. However, whether the predicate offense is denominated civil or criminal is not a realistic basis for distinction. Irrespective of the gravity of the predicate offense, it provides the basis for imprisonment. State v. Pfeifer, 544 S.W.2d 317 (Mo.App.1976), holds there is an analogy between the statutes providing for enhanced driving offenses and the second offender act. This court holds that the principles of Baldasar and Burgett are applicable to driving offenses as defined in § 577.-023.1(2).

The defendant’s first contention is that the copies of the judgments were not admissible because he was denied the assistance of counsel because they do not show he had or waived counsel in his prior convictions. Implicit in that contention is the position that the evidence of his prior convictions must show an express waiver of counsel. State v. Leis, 58 Or.App. 403, 648 P.2d 1345 (1982).

Section 577.023.2, 1982 Mo.Laws 687, in part provided: “Evidence of prior convictions shall be heard....” Section 490.130 in part provides: “Copies from the record of proceedings of any court of record of this state, attested by the clerk thereof, with the seal of the court annexed, ... shall be received as evidence_” A properly certified copy of a judgment of conviction is admissible evidence of that conviction. State v. Worsham, 416 S.W.2d 940 (Mo.1967); State v. Gardner, 600 S.W.2d 614 (Mo.App.1980), cert. denied, 449 U.S. 1020, 101 S.Ct. 585, 66 L.Ed.2d 481 (1980). “If certified copies of the prior judgment and sentence and the prison records are regular on their face and proper in form and substance, they are admissible in evidence and sufficient to support the trial court’s finding that the Second Offender Act is applicable to the prosecution.” State v. Goff, 449 S.W.2d 591, 593-594 (Mo.1970). Also see State v. Middlemas, 654 S.W.2d 355 (Mo.App.1983). A corollary of that rule is that a copy of a judgment of conviction void on its face is not admissible or sufficient.

As noted, it is held that a conviction in a proceeding in which the defendant was not represented by or waived counsel cannot be used for enhancement in a subsequent proceeding in which imprisonment is to be imposed. This is true irrespective of the validity of the prior conviction. Baldasar v. Illinois, supra. The rule applicable to the proof of the prior conviction is that representation by counsel or waiver of counsel cannot be presumed from a silent record. Burgett v. Texas, supra.

Section 600.051.1 requires a written waiver of counsel to be filed in any criminal case in which a defendant may receive a jail sentence or confinement. However, no statute or rule provides that a record of a judgment of conviction is void on its face if it does not recite' a written waiver or an express waiver. Neither Baldosar nor Burgett declares that proof of a conviction that does not contain such a recital is either inadmissible or insufficient. The records in question are not silent on the subject of counsel. They should be construed with consideration given to the nature of the criminal action. Reasonably construed, the records show the defendant was advised of his right to counsel and waived that right and entered a plea of guilty. Cf. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (waiver of right to remain silent) and Harmes v. State, 636 S.W.2d 513 (Tex.App.1982) (waiver of jury trial). The exhibits in question are not inadmissible or insufficient under the doctrine of Baldosar and Burgett, upon the basis of the defendant’s first contention.

The defendant’s next contentions are based upon the unexpressed premises that he did in fact waive counsel and plead guilty. Those contentions are that the copies of judgments are inadmissible because they do not affirmatively show the admonitions necessary to establish that the waivers of counsel were constitutionally voluntary. Specifically, he contends the admission of the records denies him his constitutional right to counsel because they do not show that he was made aware of the dangers or disadvantages of self-representation; that the court made any inquiry into the defendant’s understanding; and that he was made aware that he had a right to counsel at no cost if indigent.

The admonitions necessary to establish a constitutionally voluntary waiver of counsel and enter a plea of guilty have received repeated expression. Section 600.051.1 is a statutory expression of such required admonition in regard to waiver of counsel. Rule 31.02 contains a required procedure in that respect. Rule 24.02 sets forth requirements for the acceptance and record of a plea of guilty.

It is true that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), holds that a waiver of the privilege against self-incrimination, the right to a jury trial, and the confrontation of witnesses cannot be presumed from a silent record. Burgett holds the same in respect to waiver of counsel. However, the term “record” as so used is not confined to the judgment of conviction. It refers to the entire record of the proceedings and includes such writings as the transcript and legal file. State v. Quinn, 594 S.W.2d 599 (Mo. banc 1980).

In second offender proceedings, the decisions of other states are not in harmony concerning the scope and method of permissible attack on the validity and admissibility of predicate convictions. In some jurisdictions, initial affirmative proof of the foundation for a valid waiver of constitutional rights is required by statute or rule. State v. Ziemba, 216 Neb. 612, 346 N.W.2d 208 (1984); People v. Cruz, 117 Misc.2d 355, 458 N.Y.S.2d 172 (1983). In others, such a showing is required when the defendant has raised the constitutionality of a predicate conviction. Watkins v. People, 655 P.2d 834 (Colo. banc 1982); State v. Lefevre, 419 So.2d 862 (La.1982); State v. Leis, supra. In some jurisdictions, without requirement by statute or rule, such a showing is required in the first instance. State v. Brown, 346 N.W.2d 187 (Minn.App.1984); State v. Rinier, 93 Wash.2d 309, 609 P.2d 1358 (banc 1980); State v. Holsworth, 93 Wash.2d 148, 607 P.2d 845 (banc 1980).

The requirement of such an affirmative showing refers to the whole record. Such a requirement has been held to include the following: A waiver of the Boykin rights, State v. Ziemba, supra; State v. Rinier, supra; knowledge of the elements of the offense, Watkins v. People, supra; People v. Cisneros, 665 P.2d 145 (Colo.App.1983); the existence of a factual basis for a plea of guilty, State v. Ellis, 216 Neb. 699, 345 N.W.2d 323 (1984); and a written waiver of a jury trial, State v. Cassada, 58 Or.App. 84, 647 P.2d 938 (1982). In refusing to extend this requirement to an attack upon the basis of an unconstitutional instruction shifting the burden of proof, it was observed that undue extension of the scope of such attack could have the following result. “Trial judges in habitual criminal proceedings would essentially be required to perform an appellate review function in almost every case, as defendants would no doubt raise every conceivable constitutional error, real or imagined.” State v. Heaps, 36 Wash.App. 718, 677 P.2d 1141, 1145 (1984).

There is a view that resisting the use of a facially valid record of a judgment of conviction for enhancement purposes is not a collateral attack. State v. Smith, 213 Neb. 446, 329 N.W.2d 564 (1983); State v. Rinier, supra. Yet, except in a case such as Baldosar, the success of such an attack is dependent upon establishing the invalidity of the prior conviction. At the least, it is in the nature of a collateral attack.

Many jurisdictions hold that a judgment of conviction, valid on its face, meeting the requirements of Baldosar and Burgett, is admissible and sufficient to establish a predicate conviction. Jones v. State, 431 So.2d 1367 (Ala.Cr.App.1983); State v. Harris, 101 N.M. 12, 677 P.2d 625 (App.1984); State v. Evans, 669 S.W.2d 708 (Tenn.Cr.App.1984). The Court of Appeals of Indiana has declared, the failure to present a record that demonstrates a constitutionally valid waiver of representation by counsel “does not render the judgment void or subject to a collateral attack.” State v. Dossett, 368 N.E.2d 259, 262 (Ind.App.1977).

The courts of this state have consistently held proof by a judgment valid on its face to be admissible and sufficient. State v. Sheets, 468 S.W.2d 640 (Mo.1971); State v. Goff, supra; State v. Lasiter, 562 S.W.2d 751 (Mo.App.1978); State v. Dittman, 542 S.W.2d 72 (Mo.App.1976). The applicable rule has been stated:

A certified copy of a prior conviction is presumed to be regular and if it is in proper form and substance, it serves as a sufficient basis to support the establishment of a prior conviction_ By failing to take timely advantage of the remedies provided to set aside the judgment for invalidities not apparent on the face of it, the defendant has waived any such defects as a ground for objection to the admission of a certified copy of the judgment as evidence of a prior conviction.

State v. Middlemas, supra, at 357 (citation omitted).

Sections 577.023.1(2) and 558.021.1(2) do provide for a hearing upon proof of a predicate conviction. This permits inquiry into questions such as the identity of the defendant. Those statutes have not been construed to permit an attack upon the validity of a judgment of conviction valid upon its face. This court declines to so construe those sections.

The well established rule has been recently applied to hold that the failure of a judgment of conviction to show an express waiver of a jury trial and a factual basis for a plea of guilty does not cause that judgment of conviction to be inadmissible. State v. Quinn, supra. In so holding, the Supreme Court has declared: “State v. Goff, supra, bars appellant’s objection to admission of the prior conviction at a subsequent trial because of his failure to take timely advantage of the various remedies provided to set aside the judgment for in-validities not apparent on the face of the judgment.” State v. Quinn, supra, at 602.

The rule stated in State v. Quinn, supra, bars the defendant’s present contentions unless Baldosar and Burgett compel a contrary result. Burgett bars a presumption of the assistance of counsel or waiver of counsel from a silent record. But, neither Baldosar nor Burgett expressly requires a state to permit a judgment valid on its face to be subject to the defendant’s attack, which is in the nature of a collateral attack. This court does not find the rationale of such cases to mandate recognition of such an attack.

The defendant’s complaints concerning the form of and the certification of the documents of proof are without merit. State v. Byrnes, 619 S.W.2d 791 (Mo.App.1981); State v. Gardner, supra. The defendant’s conviction of driving while intoxicated, third offense, is affirmed.

CROW, P.J., and HOGAN, TITUS and FLANIGAN, JJ., concur.


author: TITUS, Presiding Judge.

text:
    Mary Louise KNUTSON, Plaintiff-Respondent, v. Leo J. CHRISTESON, Eugenia A. Christeson, Donald E. Hanaford, Phyllis F. Hanaford, and Boonslick Savings & Loan Association, Defendants-Appellants.
    No. 13441.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 13, 1984.
    Motion for Rehearing or to Transfer to Supreme Court Denied Jan. 4, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      William Icenogle, Icenogle & Icenogle, Camdenton, for plaintiff-respondent.
    Gene A. Hilton, Hilton & Bennett, Cam-denton, for defendants-appellants.
   TITUS, Presiding Judge.

In this equitable action plaintiff seeks to have set aside as fraudulent or infected by fraud certain conveyances among the various defendants because of an alleged attempt by defendant Leo J. Christeson to thwart satisfaction of a money judgment obtained by plaintiff against him in 1977. The trial court found all issues in favor of plaintiff and against all defendants and decreed that the deeds in question be set aside and avoided as against the interest of plaintiff. From this judgment all defendants have appealed.

On April 19, 1977, in the Circuit Court of Camden County, Missouri, Case No. 5337, plaintiff secured default judgment against defendant Leo J. Christeson in the amount of $4,159.00. Defendant Leo Christeson was at that time the sole owner of Lots A and B in Leo’s Tier Subdivision, having previously acquired each of these lots in his individual capacity via separate warranty deeds.

On August 14, 1980, plaintiff filed an application for scire facias to revive her 1977 judgment and concomitant lien, the latter of which had expired, per Rule 74.-35 , on April 19, 1980. A scire facias issued and was served upon defendant Leo Christeson on August 16, 1980. On August 21, 1980, defendant Leo Christeson and his wife, defendant Eugenia A. Christe-son, executed a quitclaim deed conveying all of Lots A and B to themselves, as husband and wife. This deed was recorded August 25, 1980, and appears in Book 223 at Page 443, Office of the Recorder of Deeds, Camden County, Missouri. On September 19, 1980, the Circuit Court of Camden County sustained plaintiff’s application for scire facias and an order reviving the judgment in Case No. 5337 was filed on October 7, 1980.

On November 5, 1980, defendants Christeson executed a general warranty deed conveying Lots A and B to defendants Donald E. and Phyllis F. Hanaford. This deed is recorded in Book 225 at Page 363 in the Camden County Recorder’s Office. On the same day, November 5, 1980, defendants Hanaford executed a deed of trust conveying Lots A and B to defendant Boon-slick Savings and Loan Association (Boon-slick) to secure payment of a promissory note. This deed of trust is recorded in Book 107, Page 849, Camden County Recorder’s Office. Prior to closing of the loan to defendants Hanaford and execution by them of the promissory note and deed of trust, defendant Boonslick received a title opinion in the form of a title commitment issued by Gene A. Hilton, as issuing agent for the Title Insurance Company of Minnesota. Mr. Hilton has been attorney for defendant Leo Christeson at all times relevant herein. Sometime later in November, 1980, defendants Hanaford, by deed of trust recorded in Book 107, Page 982, Camden County Recorder’s Office, conveyed Lots A and B to defendants Christeson to secure payment of a promissory note. Thereafter, on January 4, 1982, plaintiff filed the instant action.

Section 428.020 provides:

“Every conveyance or assignment in writing, or otherwise, of any estate or interest in lands, or in goods and chattels, or in things in action, or of any rents and profits issuing therefrom, and every charge upon lands, goods or things in action, or upon the rents and profits thereof, and every bond, suit, judgment, decree or execution, made or contrived with the intent to hinder, delay or defraud creditors of their lawful actions, damages, forfeitures, debts or demands, or to defraud or deceive those who shall purchase the same lands, tenements or hereditaments, or any rent, profit or commodity issuing out of them, shall be from henceforth deemed and taken, as against said creditors and purchasers, prior and subsequent, to be clearly and utterly void.”

Section 428.070 provides:

“This chapter shall not extend to any estate or interest in any lands, tenements or hereditaments, goods or chattels, or any rents, profits or commons out of the same, which shall be upon valuable consideration, and bona fide and lawfully conveyed; nor shall it be construed to avoid any deed, as against any subsequent bona fide purchaser from the grantee for valuable consideration, and without any notice of fraud.”

The trial court concluded that, as the August 21, 1980 quitclaim deed from defendants Christeson to themselves “was contrived and made with intent to defraud plaintiff as a creditor of defendant Leo J. Christeson,” it was void per § 428.020. No issue is raised concerning this conclusion, though defendants Christeson are, at least nominally, among the appellants on this appeal.

Defendants’ two points relied on both concern the trial court’s determination that defendants Hanaford and Boonslick were not protected parties under § 428.070 and thus could not take Lots A and B free of the fraud perpetrated by their predecessors in title, defendants Christeson. The court concluded that defendants Hanaford and Boonslick had notice of the prior fraud because they had constructive notice of the following matters of public record at the time they acquired their respective interests:

1) The unsatisfied April 19, 1977, judgment for plaintiff and against defendant Leo Christeson in the amount of $4,159.00.
2) Plaintiff’s application for scire facias to revive her April 19,1977, judgment and lien, which application was filed August 16, 1980.
3) The quitclaim conveyance from defendant Leo Christeson and his wife to themselves as husband and wife, executed August 21,1980, and recorded August 25, 1980.
4) The September 19, 1980, judgment of revival, filed October 7, 1980.

In their first point defendants Hanaford and Boonslick contend the trial court erred in overruling their joint motion for summary judgment because there was no genuine issue as to their being bona fide purchasers for value and without notice of fraud on the part of defendants Christeson. Plaintiff, as respondent on this appeal, appears to quarrel with this claim of error only to the extent it presupposes a belief that constructive notice of fraud is insufficient as a matter of law to foreclose asylum from that fraud.

We see no reason why the circumstances of this case warrant suspending application of the general rule that a grantee is charged with constructive notice of the contents of prior recorded instruments in his vendor’s chain of title. § 442.390; Fallin v. McClain, 647 S.W.2d 208, 210 (Mo.App.1983); Johnson v. Stull, 303 S.W.2d 110, 117 (Mo.1957); Brown v. Evans, 182 S.W.2d 580, 582[2] (Mo.1944). If in a particular case those instruments may be said to convey such information as would apprise the grantee of fraud perpetrated by one of his predecessors in title or such information as would put a person of ordinary prudence on inquiry as to fraud, then that grantee should be regarded no differently than would a grantee charged with constructive notice of any encumbrance constituting a cloud on his title. It would indeed be anomalous to require that a purchaser be less vigilant as to matters of fraud than as to other, less “disruptive” title defects. Thus, without resorting to the facile conclusion that “without any notice of fraud” means just that, we hold that a subsequent purchaser must be without actual or constructive notice of fraud in order to qualify as a protected party under § 428.070.

In their second and final point, defendants initially concede for the sake of argument what we have just determined: that constructive as well as actual notice is embraced by the phrase “without any notice of fraud” in § 428.070. They nevertheless contend the trial court erred in concluding that their constructive notice of certain court records on file in the Circuit Court of Camden County and instruments on file in the Camden County Recorder’s Office constituted constructive notice of fraud. For purposes of our discussion we distill this point into two analytically distinct questions: 1) Did defendants Hanaford and Boonslick have constructive notice of all those matters the trial court concluded they did? and 2) Did such information reveal fraud, either directly or by putting defendants Hanaford and Boonslick on inquiry, where such inquiry, if prosecuted with reasonable diligence, would have revealed fraud?

It is clear that, inasmuch as a grantee is charged with constructive notice of prior recorded instruments in his vendor’s chain of title, defendants Hanaford and Boonslick had constructive notice of the quitclaim deed from defendants Christeson to themselves. Such notice became effective as of August 25, 1980, when the deed was recorded. § 442.390; Fallin, supra; Johnson, supra.

We reach like conclusions with respect to the 1977 default judgment against defendant Leo Christeson and the 1980 judgment of revival. The recording of a judgment, properly entered and docketed, is notice of what it contains or recites, as well as such facts as might be fairly inferred from its recital, and such record carries with it constructive notice of the facts therein expressly recited as well as such facts as might be fairly inferred from its recitals. Inter-River Drainage Dist. of Missouri v. Henson, 99 S.W.2d 865, 873[4] (Mo.App.1936). Further, regardless of the nature of the action or the judgment sought, where a statute provides that a judgment shall create and establish a lien on the real property of the judgment debt- or, the judgment imparts notice of such lien. 92 C.J.S. Vendor and Purchaser § 329, at p. 240. Section 511.350.1 provides that “Judgments and decrees rendered by ... any circuit court ... shall be liens on the real estate of the person against whom they are rendered, situate in the county for which or in which the court is held.”

Whether or not defendants Hanaford and Boonslick can be said to have had constructive notice of fraud depends, in our view, on whether or not they can be charged with notice that defendants Christeson executed the quitclaim deed to themselves in suspicious chronological proximity to their receiving service of the scire facias. As recounted, supra, plaintiff’s application for scire facias to revive the judgment in Case No. 5337 was sustained on September 19, 1980, and the judgment of revival filed on October 7, 1980. That defendants Hana-ford and Boonslick acquired their respective interests within one month of this latter event, of which we have already determined they can be charged with notice, was sufficient at least to have placed them upon inquiry as to the bona fides of antecedent links in their chain of title. Their obligation to inquire would reasonably extend to all matters of public record concerning Case No. 5337, including the docket entries reflecting when the original application for scire facias was filed and served upon defendants Christeson. These entries would have shown that defendants Christeson received service of the scire facias but five days prior to their execution of the quitclaim deed to themselves. We consider notice of this scenario tantamount to notice of fraud. Thus, defendants Hanaford and Boonslick cannot claim the protection of § 428.070.

The judgment is affirmed.

GREENE, J., concurs.

FLANIGAN, J., concurs in result only.

      . Rule and statute references are to V.A.M.R. and V.A.M.S., respectively.


author: GAERTNER, Judge.

text:
    Emanuel JOYCE, Movant, v. STATE of Missouri, Respondent.
    No. 47327.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Jane B. Phillips, Public Defender, St. Louis, for movant.
    John Ashcroft, Atty. Gen., Jefferson City, for respondent.
   GAERTNER, Judge.

Movant appeals from the denial, without evidentiary hearing, of his Rule 27.26 motion. He is presently serving a 27 year sentence for robbery first degree, which conviction was affirmed in Joyce v. State, 637 S.W.2d 386 (Mo.App.1982). After the filing of the pro se motion, counsel was appointed and an amended motion was filed. The amended motion alleges two grounds of ineffective assistance of counsel: (1) failure to request a psychiatric examination and, (2) failure to raise as a defense movant’s heroin addiction as affecting his culpable mental state. The trial court denied the motion, without evidentia-ry hearing, for the reasons that movant’s allegation were refuted by the record and for failure to plead facts which, if true, would entitle him to relief. We affirm.

Counsel will not be convicted of ineffective assistance for failure to request a psychiatric examination when he has no reason to suspect his client is suffering from any mental disease or defect. Scroggins v. State, 604 S.W.2d 699, 701 (Mo.App.1980). The only fact alleged in the motion here is that movant was addicted to heroin. Narcotic addiction, in the absence of some additional evidence of psychosis, does not constitute a mental disease or defect so as to be a defense within the meaning of § 552.010, RSMo. 1978. State v. Ingram, 607 S.W.2d 438, 441 (Mo.1980). No such psychosis is alleged here. On the contrary, movant’s allegations are only directed to diminished mental capacity by reason of addiction. The failure to request a psychiatric examination is not mentioned in the points relied on or the argument portions of movant’s brief on appeal and may be considered as abandoned. Ross v. State, 601 S.W.2d 672, 676 (Mo.App.1980).

Moreover, the transcript of the trial and the sentencing proceedings completely refute any contention that narcotic addiction could have been asserted as a defense or in mitigation. The offense of robbery first degree is committed by “forcibly stealing” by causing serious physical injury or by use, threat or display of a dangerous instrument or weapon. § 569.-020, RSMo. 1978. Voluntary intoxication or a drugged condition negates the existence of the mental states of purpose or knowledge only where such mental states are elements of the offense charged. § 562.076.1, RSMo. 1978. Purpose and knowing intent are not elements of robbery first degree. State v. Helm, 624 S.W.2d 513, 517 (Mo.App.1981). For this reason the very contention made here by movant was rejected in State v. Cole, 662 S.W.2d 297, 301 (Mo.App.1983) and State v. Duncan, 648 S.W.2d 892, 893 (Mo.App.1983).

In addition, the trial transcript showed movant comprehensively answered all questions addressed to him. On the day of the robbery he gave the police a statement describing in detail the manner in which he and two others planned and perpetrated the robbery. On the following day he took police to the area where he had hidden the stolen property. His ability to detail the circumstances within a matter of hours after the robbery eliminates any possibility of successfully interjecting narcotic impairment of his culpable mental state. Submission of such an issue requires evidence of severe impairment amounting to a loss of awareness of what one is doing, a suspension of all reason, a paralysis of the will, a mental incapacity to form a sane design, a stupefaction of the reasoning faculty. State v. Gullett, 606 S.W.2d 796, 805-06 (Mo.App.1980). His recall belies his contention. State v. Bienkowski, 624 S.W.2d 107, 108 (Mo.App.1981). The allegations of his motion are refuted by the record.

Movant has failed to plead facts not refuted by the record which, if true, would entitle him to relief. Therefore, he is not entitled to an evidentiary hearing. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975), rev’d on other grounds, Fields v. State, 572 S.W.2d 477 (Mo. banc 1978).

Judgment affirmed.

PUDLOWSKI, P.J., and KAROHL, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. James SIMS, Defendant-Appellant.
    Nos. 47471, 47677.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Debra B. Arnold, Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   GAERTNER, Judge.

A seven count information charged that defendant, a persistent offender, acting with others, committed the following offenses:

Count I — Assault first degree by shooting Veronica Bryant;
Count II — Assault first degree by shooting Steve Valentine;
Count III — Armed criminal action based upon the robbery charged in Count IV;
Count IV — Robbery first degree by stealing a television and stereo from Veronica Bryant by means of a deadly weapon;
Count V — Robbery first degree by stealing money from Steve Valentine by means of a deadly weapon;
Count VI — Robbery first degree by stealing money from John Sanders by means of a deadly weapon;
Count VII — Assault first degree by striking John Sanders with a sawed-off shotgun.

The evidence showed that Steve Valentine, John Sanders, Jimmy Grayson, Michael Grayson and defendant and some others had, on several occasions, played dice together. A dice game was planned for November 20, 1982, but the location was changed from the home of defendant’s brother to the apartment of Veronica Bryant, Valentine’s fiancee. Defendant and the Graysons drove from the one location to the other in one car, Valentine and Sanders in another. The three concluded Valentine had been cheating in earlier games and determined to recover their losses. They gathered in the kitchen of Bryant’s apartment. When Valentine entered the room, Michael Grayson had a sawed-off shotgun; Jimmy Grayson, a pistol; and defendant, a knife. Valentine and Sanders were both beaten, kicked and threatened with death by defendant and the Graysons. The three took money from the two and forced them to carry Bryant’s television and stereo to their car at gunpoint. At the car, Sanders broke away and started to run. Defendant and Michael Grayson chased him while Jimmy Grayson held the pistol on Valentine and Bryant. Valentine grabbed Jimmy’s arm and a scuffle ensued. Michael returned and shot Valentine three times and Bryant once. Defendant and the Graysons then fled.

Testifying in his own behalf, defendant’s version of the evening’s events differed from the state’s evidence only insofar as the use of weapons was concerned. He denied knowledge or use of any weapons during the beating and kicking of Valentine and Sanders in the kitchen. He claimed he never saw a shotgun or a pistol, but as he was chasing Sanders he heard shots and discovered upon returning to the car that Valentine had been shot by one of the Graysons.

The jury found defendant guilty on Counts I through V and not guilty on Counts VI and VII. As a persistent offender, the court sentenced him to three consecutive 15 year sentences on the first three counts and to two concurrent 15 year sentences on the two robbery counts.

On appeal, defendant contends the trial court erred in failing to instruct on second and third degree assault on each assault count, and on robbery second degree on each robbery count, and in failing to give MAI-CR2d 2.14 on each of these counts. These really amount to a single contention for MAI-CR2d 2.14 is required only where “an offense is so submitted that the jury may find the defendant guilty of any one of two or more degrees thereof.” MAI-CR2d 2.14, Notes on Use (3). Accordingly, the basic issue before us is whether or not, under the pleadings and the evidence, submission of lesser-included offenses was required on the various counts.

“It has consistently been held that an instruction on a lesser included offense is required only where there is evidence with probative value which could form the basis of an acquittal of the greater offense and a conviction of the lesser included offense.” State v. Olson, 636 S.W.2d 318, 321 (Mo. banc 1982); § 556.046.2, RSMo. 1978. Reviewing the evidence in the light of this rule and under the allegations of the information reveals that the trial court properly refused to instruct on lesser-included assault offenses, but erred in refusing to instruct on robbery second degree.

At the outset we note the clear delineation in the pleadings and the evidence between the events which took place in the kitchen and those which occurred at the automobile. The two assaults of which defendant was convicted are alleged to have involved the shooting of the victims. There is no evidence of any shooting except that which took place at the automobile. Thus, these assaults are clearly separate and distinct from the assaults in the kitchen which formed a part of the two robberies. See State v. Helm, 624 S.W.2d 513, 518 (Mo.App.1981).

As to the shooting assaults, there is no material dispute in the evidence. By his own admission, defendant was a participant in the entire affair, including his attempt to prevent the escape of one of the victims while the others were detained at the automobile. Section 562.041.1(2) provides:

A person is criminally responsible for the conduct of another when
(2) either before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing, or attempting to commit the offense.

Defendant contends, however, that because his evidence tended to show that he had no intention to cause serious physical harm by the use of a deadly weapon, he was entitled to have the jury consider, under proper instructions for lesser-included degrees of assault, his state of mental culpability. Our courts have squarely held that criminal responsibility for the acts of another does not require a common intent other than the promotion of the commission of an offense. State v. White, 622 S.W.2d 939, 944-45 (Mo. banc 1981), cert. denied, 456 U.S. 963, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). White was construed in State v. Weaver, 648 S.W.2d 207, 209 (Mo.App.1983) as a complete refutation of an appellant’s contention that a jury must be required to find that he possessed the element of intent for the underlying felony of which he was convicted as an aider or abetter.

In White, the court ruled: “[Section] 562.051, RSMo. 1978, does not create any elements of intent in addition to that of § 562.041, RSMo. 1978”. The court went on to further rule that § 562.041.1(2) requires an aider to have the intent “to purposely promote the commission of the offense.” The court was ruling that this is the “required culpable mental state” referenced in § 562.036.”

Id. “The general rule is that if the alleged accomplice has the purpose to promote the offense, he necessarily will have the required culpable mental state for that offense.” State v. Connor, 651 S.W.2d 550, 553 (Mo.App.1983).

Defendant does not dispute that serious physical injury was inflicted upon Valentine and Bryant by shooting, therefore, there was no evidence to support an acquittal of assault first degree and a conviction of a lesser degree of assault. It was not error to refuse to instruct on the lesser degrees of assault. Because the instructions properly did not submit different degrees of the assault charges, it was not error to refuse to give MAI-CR2d 2.14. State v. Boggs, 634 S.W.2d 447, 456 (Mo. banc 1982).

As to the robbery counts, however, the evidence is materially disputed. The victims testified they were not only beaten and kicked, but also threatened with death by means of displayed weapons, a sawed-off shotgun, a pistol and a knife. Defendant denied the use or even the presence of the weapons in the kitchen. His testimony was that the victims gave up the money and property after mere beating with fists and stomping with feet. There was no evidence of serious physical injury caused by the beating and the kicking. Therefore, if the jury believed the defendant’s testimony, he could have been acquitted of robbery first degree and found guilty of robbery second degree. Section 556.046.2 obligates the trial court to instruct upon lesser-included offenses under such circumstances.

Defendant does not challenge his conviction for armed criminal action. Accordingly, the judgments of conviction and sentences of 3 consecutive terms of imprisonment on Counts I, II and III are affirmed. The judgments and sentences of two concurrent 15 year sentences on Counts IV and V are reversed and remanded.

PUDLOWSKI, P.J., and KAROHL, J., concur. r


author: STEPHAN, Judge.

text:
    STOCHL AND COMPANY, INC., Plaintiff-Respondent, v. William WIELAND, Jurldean Wieland, and Nora Wieland, Defendants-Appellants.
    No. 47989.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Edward C. Schneider, St. Louis, for defendants-appellants.
    Leigh Hunt Greenhaw, Clayton, for plaintiff-respondent.
   STEPHAN, Judge.

Defendants Wieland appeal from a judgment ordering specific performance of an agreement to convey certain real estate. We affirm.

In April 1966, defendants leased the property, which is located in Oakville, St. Louis County, to Texaco, Inc. Under the provisions of the lease agreement, the lease would commence upon completion of certain improvements and alterations. Accordingly, the actual commencement date of the lease was April 19, 1967. The initial term of the lease was ten years with the option to the lessee to renew for one or two additional five year periods. Toward the end of the ten year base period, Texaco renewed for an additional five years, thus extending the lease to April 18, 1982. In May, 1981, Texaco assigned its interest under the lease to plaintiff-respondent, Stochl and Company, Inc. The assignment became effective June 1, 1981.

The dispute between the parties focuses on a provision in the lease giving the lessee an option to purchase at' a fixed price at the end of the base period or any renewal period, and a right of first refusal in the event the lessor received an offer to buy the premises during the existence of the lease. The provision in question states:

Lessor hereby grants to lessee the exclusive right at lessee’s option to purchase the demised premises ... (a) for the sum of $74,000.00 at the end of the base period of the lease or any renewal option ... it being understood that if any part of said premises be condemned, the amount of damages awarded or accepted by lessor as a result thereof shall be deducted from said sum (b) on the same terms and at the same price as any bona fide offer for said premises received by lessor and which offer lessor desires to accept.

In 1979, the State of Missouri condemned a portion of the Wielands’ property and, in 1980, issued a check in the amount of $51,-250.00 to the Wielands and Texaco. Texaco subsequently endorsed the check over to the Wielands and received none of the proceeds. In settlement of the condemnation proceedings, the Wielands ultimately received $45,300. Texaco assigned its interest under the lease, effective June 1, 1981, to respondent, Stochl & Company, Inc., and duly notified the Wielands.

On June 2, 1981, Stochl notified the Wie-lands that it was exercising its option to purchase the property in accordance with the terms of the lease and requested that Wielands furnish the documentation necessary to “bring this sale to a conclusion.” Wielands, believing that the exercise of the option was premature, took no action. Several weeks later, Wielands received a bona fide offer from a third party to purchase the property for $125,000, and notified Stochl that they proposed to accept the offer on July 27, 1981. Wielands contend on this appeal that their notification of the offer to Stochl triggered Stochl’s right of first refusal under the lease. Stochl did not attempt to meet the offer, but rather filed suit for specific performance and a lis pendens on July 10 and July 14, respectively, effectively blocking the sale to the third party.

In their first point, Wielands argue that the trial court erred in refusing to hold that the fixed price option could be exercised only at the expiration of the term set out in the lease, and then only prior to their notification to Stochl that a bona fide offer had been received which the Wielands wished to accept. Since the renewed lease would not expire until April 18, 1982, Wielands contend that Stochl’s notice of June 2,1981, concerning its exercise of the fixed price option was premature and therefore a nullity-

When the lease was negotiated between the Wielands and Texaco, the printed lease form was changed by the parties so as to provide that the fixed price' option could be exercised “at the end” of the initial term or a renewal term, rather than “at any time” during the existence of the lease. Wielands claim that this clearly demonstrates the intent of the parties was that the option could only be exercised “at or after the expiration of the renewal period.” We find such interpretation of the lease untenable: before the lease expired (midnight, April 18, 1982), according to the Wielands, the option could not be exercised; but after the lease expired, the offer of the lessors to sell, implicit in the option, was extinguished. Far more compatible with a common-sense explanation of the substitution of the phrase “at the end” for the phrase “at any time” is that given by Texaco’s real estate agent who negotiated the base lease. He testified that the purpose of the change was “to secure the owner of a firm ten-year period rental,” rather than force a sale prior to the end of the original or renewal term.

Accordingly, in its conclusions of law, the trial court held, inter alia, that, “Plaintiffs written notice to defendants on June 2, 1981, constituted an exercise of the fixed price option, thus creating a bilateral contract for the sale of the property at the end of the renewal period.” In support of this conclusion, the trial court aptly cited Gulf Oil Corporation v. Ferguson, 509 S.W.2d 1 (Mo.1974) which holds that a bilateral contract for the conveyance of real property may arise out of the exercise of an option such as the one involved here and may be enforced by suit for specific performance. See also Russell v. Carter, 568 S.W.2d 576 (Mo.App.1978) and Wilson v. Edwards, 560 S.W.2d 608, 612 (Mo.App.1978). Since the bilateral contract which was created by the exercise of the option preceded receipt by Wielands of the bona fide offer from the third party and since the lease specifically provides that each of the options to purchase “shall be pre-emp-tive” of the other, the fact of the third party’s subsequent offer is of no consequence to the disposition of this case.

The trial court correctly declared and applied the law, and we rule the point against appellants Wieland.

In their second point, appellants contend that Stochl’s suit for specific performance was premature because it was filed prior to the time performance was due, i.e., April 19, 1982. This, according to the appellants, deprived the trial court of jurisdiction. We find no merit in the point. Aside from the fact that the case was tried and adjudicated well after the time for conveyance had passed, it is clear that Wie-lands repudiated the fixed price option: they had taken no action to deliver an abstract or other evidence of title to Stochl as required by the lease upon notification of exercise of the fixed price option; and they were prepared to sell to the third party prior to Stochl’s filing of this suit. Such repudiation gave rise to an immediate right to a suit in equity for specific performance. C. & J. Delivery, Inc. v. Vinyard & Lee & Partners, Inc., 647 S.W.2d 564, 569 (Mo.App.1983); Herzog v. Ross, 358 Mo. 177, 213 S.W.2d 921, 925 (Mo. banc 1948). See Schoshinski, American Law of Landlord and Tenant, p. 631-632, § 9:13 (1980). Indeed, had Stochl not brought suit prior to the sale to the third party, it may have been barred from seeking specific performance and limited to a cause of action for damages against Wielands. C. & J. Delivery, Inc., supra; Schoshinski, supra.

Appellants’ final point is that the trial court erred in allowing an offset of the amount realized by appellants from the condemnation proceedings against the purchase price recited in the option. This argument is based entirely on the wording of Texaco’s endorsement of the check which the State of Missouri had made payable to both Texaco and appellants. The endorsement is as follows: “Endorsement is for the sole purpose of releasing any interest Texaco, Inc. may have in the proceeds hereof. All terms of the lease remain the same.” In their brief, appellants assert that the language demonstrates a clear intent on Texaco’s part to “waive any right it had to the amount of award awarded by the condemnation proceeding” and that this waiver carries over to Stochl as assignee of the lease. We do not agree that the endorsement had any such effect. To waive interest in a specific negotiable instrument in favor of a co-payee is not, under the facts of this case, the same as waiving the benefit of its effect, i.e., the reduction of the amount of the fixed price option. This conclusion is supported by the second sentence of the endorsement, “All terms of lease remain the same.” We reject appellants’ claim that it would be inequitable to “hold the lessors accountable for these monies ...” On the contrary, it would be inequitable for a court to countenance double payment to appellants for the taking.

As set out above, the fixed price option stating the amount of $74,000 provided, “if any part of said premises be condemned, the amount of damages awarded or accepted by lessor as a result thereof shall be deducted from said sum ...” Wielands accepted $45,300. The trial court properly allowed that amount as an offset against the $74,000 price and ordered that the property be conveyed to Stochl upon its tender of $28,700 to appellants.

The decree of the trial court is, in all respects, affirmed.

SIMON, P.J., and STEWART, J., concur.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Willie J. HOSKIN, Defendant-Appellant.
    No. 48097.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Jane Phillips, Asst. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   ORDER

PER CURIAM.

Defendant was convicted of first degree assault, a violation of § 565.050 RSMo 1978 and first degree robbery, a violation of § 569.020 RSMo 1978. He was sentenced as a persistent offender to two consecutive life sentences. The judgment is affirmed in accordance with Rule 30.25(b).


author: KAROHL, Judge.

text:
    MAX STOVALL CONSTRUCTION COMPANY, A Missouri Corporation, and Stovall Block and Brick Company, A Missouri Corporation, Plaintiffs-Respondents, v. VILLAGER HOMES, INC., A Missouri Corporation, Defendant, Larry C. Harris and Cynthia G. Harris, Garnishees-Appellants.
    No. 48236.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    James R. McHaney, Cape Girardeau, for garnishees-appellants.
    Dale Edward Gerecke, Cape Girardeau, for plaintiffs-respondents.
   KAROHL, Judge.

Garnishee Larry C. Harris appeals judgment for garnishors Max Stovall Construction Company and Stovall Block and Brick Company in the amount of $5,773.12 in a court tried case. This garnishment proceeding was tried together with garnishments against Cynthia G. Harris and James R. McHaney. The court ruled in favor of garnishees McHaney and Cynthia G. Harris upon a finding that at the time they were served garnishments they were not indebted to the judgment debtor, Villager Homes, Inc. Those judgments have not been appealed. However, garnishees Cynthia Harris and McHaney appeal the denial of an allowance of attorney’s fees for answering, attending and defending the garnishment proceeding against them.

On December 27,1982 plaintiffs obtained a judgment against Villager Homes, Inc. Max Stovall Construction Company secured a judgment for $2,111.72 and plaintiff Sto-vall Block and Brick Company secured a judgment for $5,457.25. In an effort to collect the judgments the plaintiffs jointly secured a garnishment in aid of execution which was served upon garnishee Larry C. Harris on March 17, 1983 and was returnable May 16, 1983. The trial court held that Larry C. Harris was liable to the judgment creditor. Appellant Larry C. Harris contends that the judgment of the trial court is not supported by substantial evidence and that the findings of fact, conclusions of law and judgment are against the weight of the evidence and erroneously declare and apply the law under § 525.040, RSMo.1978. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Particularly he contends that during the period of the garnishment he possessed no personal property, money, rights, credits, bonds, bills, notes, drafts, checks or other choses in action of the judgment debtor, Villager Homes, Inc.

The relationship between Larry C. Harris and Villager Homes, Inc. arises out of a real estate transaction which occurred in November 1981. This was thirteen months before garnishor’s judgment against Villager Homes, Inc. If garnishee held assets of or was indebted to Villager Homes, Inc. it arose out of the real estate transaction.

On October 28, 1981 Villager Homes Inc. (styled in the contract as Villager Realty) entered into a written contract with Larry and Cynthia Harris for the sale of a residence at 2030 Andrew. The contract was on a printed Missouri Association of Realtors form. The contract referred to a lease agreement with an option to purchase. On November 23, 1981 Villager Homes, Inc. as lessor and Larry Cecil Harris and Cynthia G. Harris, his wife, as lessees entered into a lease agreement with an option to purchase the house at 2030 Andrew. On the same day the parties executed a memorandum agreement for recording referring to the covenants and agreements concerning the reciprocal rights, duties and covenants of the parties as expressed in the written lease. The memorandum, but not the lease, was recorded on November 24, 1981. On the date of the lease the parties also signed a real estate sale closing statement for the residence. The closing statement described the purchase price as $60,227.95, a down payment of $1,000.00, a balance due on an existing first deed of trust, a balance due on 1980 real estate taxes, a proration of 1981 real estate taxes, an abstract expense, and a balance of purchase price paid to seller of $8,124.89. The seller was to receive two points or $1,204.55. In addition, the sum of $1,467.48 was to be paid as part of the monthly “rent” payments between November 1981 and November 1982.

The trial court found that it was the intent of Villager Homes, Inc. and Larry and Cynthia Harris to sell and buy the property, and not to just rent or lease it. In this respect the court also found that the incentive for the lease with option to purchase arrangement was the high prevailing real estate loan interest rates as compared to the loan rate of 10¾% on the first deed of trust in favor of Colonial Federal Savings & Loan Association.

The lease agreement provided that the lessees were to pay to an escrow agent $608.94 per month rental for twelve months and thereafter $486.65 for the remaining twenty-four months of the lease. If the lessees had paid the cash due lessor-seller on closing and made the twelve rental payments for the first year then “no other sums are due lessor under the terms of this agreement.” It further provided that the parties understood that the November 23,1981 payment of $11,639.96 was to be paid directly to the lessor and be retained by it and that $122.29 per month from the monthly rent for the first year shall be transmitted to the lessor by the escrow agent — James R. McHaney. The option to purchase granted purchaser-lessees in the lease could be exercised with thirty days written notice or by paying and satisfying the full balance due on the loan account at Colonial Federal Savings and Loan Association — the holder of the note secured by a first deed of trust.

The court found that on March 17, 1983, the date Larry C. Harris was served with the summons to garnishee, the Harrises owed Villager Homes, Inc. a sum greatly in excess of the judgments due plaintiffs. Appellant Larry C. Harris contends that no sums were due Villager Homes, Inc. on that date (which we expand to include at any time during the garnishment period). As appellant’s contention is correct we reverse the judgment against Larry C. Harris.

The Harrises exercised their option to purchase during the last week of March 1983. On March 31, 1983 they received from the escrow agent and recorded Villager Homes, Inc.’s general warranty deed dated November 23, 1981. On April 4, 1983 Larry C. Harris gave a check on a joint account with his wife and payable to the Colonial Federal Savings and Loan Association to that association in the amount of $49,599.03. The Harrises received the paid note and deed of trust which was then released.

All rent payments required by the lease were timely made including the March 1, 1983 rent payment. On March 31, 1983 when the warranty deed was recorded the requirement for rent payments under the lease agreement terminated. The trial court found that the sale according to the terms of the lease agreement was completed on March 31, 1983. The narrow issue becomes whether Larry C. Harris and wife were indebted to Villager Homes, Inc. in any amount between March 17, 1983 and May 16, 1983, the period of the garnishment. We find that they were not.

The lease agreement expressly provided that except for the cash payments to Villager Homes, Inc., all of which were made by December 1, 1982, “no other sums are due lessor under the terms of this agreement.” Larry C. Harris was not directly obligated to Colonial Federal Savings and Loan Association. Although his payments constituted the payment of a debt owed to Colonial Federal Savings and Loan Association only by Villager Homes, Inc. it does not follow that he was obligated to Villager Homes, Inc. in the pay-off amount of $49,-599.03 (the amount due on the loan). Villager Homes, Inc. did not have a claim in that amount or in any amount against garnishee Harris and wife after December 1, 1982. By that date all sums the Harrises owed Villager Homes, Inc. had been paid except for the monthly rent payments. No rent payments became due during the garnishment period.

As the evidence on this issue is documentary and undisputed this court’s duty to give due regard to the opportunity of the trial court to have judged the credibility of witnesses as provided in Rule 73.-01(c)(2) has no application here. Insurance Co. of State of Pennsylvania v. West Plains Air, Inc., 637 S.W.2d 444, 446 (Mo.App.1982). The liability of a garnishee is measured by its liability to the judgment debtor. Grimm v. Sinnett, 567 S.W.2d 418, 421 (Mo.App.1978). A garnishee may be compelled to deliver assets of a judgment debtor to the plaintiff creditor only to the extent that the garnishee is indebted to the judgment debtor. Geiwitz v. Geiwitz, 473 S.W.2d 781, 783 (Mo.App.1971). Here the judgment debtor, Villager Homes, Inc., had no claim against garnishee (because Larry Harris owed it nothing) which would constitute a chose in action in garnishee’s possession or charge within the provisions of § 525.040, RSMo.1978. “The right to a judgment against a garnishee depends upon it being made to appear that the garnishee owes the principel [sic] debtor, and the creditor can claim no right where the debtor himself could not maintain an action against the garnishee.” State ex rel. Kennedy v. Harris, 228 Mo.App. 469, 69 S.W.2d 307, 310 (Mo.App.1934). Although Villager Homes, Inc. had a rever-sionary interest in the real estate under the terms of the lease purchase agreement the garnishment is not an execution on that interest in the real estate. Even if the execution was directed at the reversionary interest garnishee Larry C. Harris was not in possession of that interest.

Respondents’ argument that the rental payments transferred to Colonial Federal Savings and Loan through the escrow agent and the direct pay-off to Colonial of the balance due on the note and deed of trust are assets of the debtor is not persuasive. These payments were made with garnishee Harris’ funds not by funds belonging to or owed to Villager Homes, Inc. The garnishment statute attaches only the property of the judgment debtor or funds owed to the judgment debtor. Under the terms of the agreement no funds were owed to the judgment debtor. The fact that Villager Homes, Inc.’s obligation to the savings and loan association was paid off by Harris’ funds is irrelevant because the judgment debtor received no benefit. Villager Homes, Inc. lost its rever-sionary interest. In addition, under the terms of the lease-purchase agreement Harris and his wife were authorized to pay the savings and loan directly to secure clear title to their own property. Finally, a judgment creditor may attach by garnishment only funds which the judgment debt- or may obtain on date of service of the writ of garnishment, as a money demand. Weiner v. Shredded Steel Products, Inc., 334 S.W.2d 390, 393 (Mo.App.1960). Villager Homes, Inc. had no valid claim for money against appellant Harris on the date of the garnishment or at any time during its period.

Appellants McHaney and Cynthia Harris claim error in the denial of their request for attorney’s fees in answering and defending the garnishment action. Section 525.240, RSMo.1978 provides that if any plaintiff in an attachment action

shall cause any person to be summoned as garnishee, and shall fail to recover judgment against such garnishee, all the costs attending such garnishment shall be adjudged against such plaintiff, and the court shall render judgment in favor of such garnishee, against the plaintiff, for a sum sufficient to indemnify him for his time and expenses, and reasonable attorney’s fees in attending and answering and defending in subsequent proceedings as garnishee, (emphasis added)

This statute requires that the court enter a judgment if requested. Ellison v. Ralston, 19 Mo.App. 537, 541 (1885). Garnishees Cynthia G. Harris and James R. McHaney made such request and have appealed the denial of an award. Garnishee Larry C. Harris made the request at trial but has not appealed the denial. We note there was service on these garnishees, execution and filing of their answers to interrogatories, exceptions to their answers, a memorandum in support of their proposed findings of fact and conclusions of law and their participation during the trial. All of these acts were in defense of a garnishment and are compensable under § 525.-240, RSMo.1978. We therefore remand to the trial court to assess the appropriate sums in their favor against defendants Max Stovall Construction Company and Stovall Block and Brick Company under § 525.240, RSMo.1978. See McPike Drug Company v. Wilson, 237 S.W. 1044, 1046 (Mo.App.1922). The court may determine that they shall be jointly and severally liable for the payment thereof.

The judgment against Larry C. Harris is reversed. The motions for compensation by defendants Cynthia G. Harris and James R. McHaney are remanded for further proceedings.

REINHARD, C.J., and DOWD and CRIST, JJ., concur.

      . In view of the judgment of the court in favor of garnishees Cynthia G. Harris and James R. McHaney we need not burden this opinion with the subsequent dates of service and return.

      . The option to purchase clause of the lease provides that if the lessee defaults in the terms of the agreement so as to cause a termination of the lease or fails to exercise its options to purchase the escrow agent shall deliver the quit claim deed to the lessor for the purpose of clearing the title of record to the demised premises.