author: PER CURIAM:

text:
    Dean BODENSCHATZ, Plaintiff-Appellant, v. McDONNELL DOUGLAS CORP., and Industrial Indemnity Corp., Defendant-Respondent.
    No. 48573.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 29, 1985.
    David C. Godfrey, Clayton, for plaintiff-appellant.
    Edward M. Vokoun, St. Louis, for defendant-respondent.
   ORDER

PER CURIAM:

Appellant Dean Bodenschatz appeals from a decision of the St. Louis County Circuit Court, affirming the final judgment of the Labor and Industrial Relations Commission, which held that appellant had not developed an occupational disease, and was thus ineligible for Worker’s Compensation benefits. The evidence in support of the Commission’s judgment being sufficient and no error of law appearing, the judgment of the trial court is affirmed in accordance with Rule 84.16(b).


source: Caselaw Access Project

author: CLEMENS, Senior Judge.

license: Public Domain

text:
    Gerald PANG and Ginger Pang, Appellants, v. Albert BETTS and Mary Betts, Respondents.
    No. 48719.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 29, 1985.
    Francis L. Ruppert, Clayton, for appellants.
    Gary R. Sarachan, St. Louis, for respondents.
   CLEMENS, Senior Judge.

By their Count I plaintiff-appellants Pang sought specific performance of an alleged oral promise by owner-defendants Betts to sell their rental property to plaintiffs. Answering, defendants denied an agreement to sell and pleaded plaintiffs were merely monthly tenants. Defendants also pleaded the statute of frauds. The trial court found against plaintiffs and they have appealed. We affirm.

By Count II plaintiffs alternatively sought $8,399 for their material and labor in repairing fire damages to defendants’ property. The trial court awarded plaintiffs $2,939. Both parties have appealed. We affirm.

Plaintiffs had become defendants’ tenants ten years before and as rental paid defendants $87 a month. This was the amount of defendants’ monthly installments on their 25-year secured debt to a lender; defendant-owners had continued to pay the taxes and insurance premiums. Annually the Betts reported the Pangs’ rental payments as Betts’ income to the Internal Revenue Service.

In rendering judgment against plaintiffs on their Count I the trial court found they had failed to sustain their burden on their alleged oral real estate contract. It specifically found plaintiffs had failed to overcome the statute of frauds, Section 432.010 RSMo. See the required elements of a verbal contract to sell real estate enumerated in Gegg v. Kiefer, 655 S.W.2d 834 [1] (Mo.App.1983).

On Count I we affirm the trial court’s judgment against plaintiffs, this in accordance with Murphy v. Carron, 536-S.W.2d 30 (Mo. banc 1976).

We look now to plaintiffs’ alternative Count II concerning their repairs made and materials furnished for the fire-damaged property. For this the trial court awarded plaintiffs $2,939. Both parties appeal.

Plaintiffs contend that after the fire and when the insurer had made major repairs the defendant hired him to do “clean up work”; that the undocumented value of this claimed 160 hours of work done and materials supplied was $8,939.

In response defendants contend they had hired plaintiffs only to clean smoke damage to the walls and would pay Pang for necessary cleaning materials; that they had paid Mr. Pang $280.

As said, the trial court gave the Pangs judgment for $2,939 representing $1,339 Pang had paid for materials furnished and $1,600 for Pangs’ labor. From this both parties have appealed.

Plaintiffs here contend the judgment was inadequate. The trial court was not bound by their testimony of estimated time and value of the repair work. We must give due regard to the trial court’s role in weighing the credibility of the witness. Rule 73.01(c)(2) and Labor Discount Ct. v. State Bank and Trust Co., 526 S.W.2d 407 [4, 5] (Mo.App.1975). So, we deny plaintiffs’ point I.

As to Count II defendants challenge the trial court’s $2,939 judgment for plaintiffs. This represented $1,339 which the trial court found plaintiffs had paid for materials furnished and $1,600 for plaintiffs’ labor; that both were beneficial to defendants. There was evidence showing defendants had impliedly authorized both these items. He had discussed the repair work with plaintiffs, had agreed to pay an unspecified amount and had in fact paid him $280 in cash. We deny defendants’ contention that the $2,939 award to plaintiffs had no evidentiary support.

Judgment for defendants on Count I and for plaintiffs on Count II are both affirmed.

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


author: MAUS, Judge.

text:
    R_, Petitioner-Respondent, v. R_, Respondent-Appellant.
    No. 13529.
    Missouri Court of Appeals, Southern District, Division Three.
    Jan. 31, 1985.

      Therese A. Schellhammer, Little, Million, Terando, Schellhammer & Associates, Poplar Bluff, for respondent-appellant.
    John R. Hopkins, Jr., Hyde, Purcell, Wil-hoit, Spain, Edmundson & Merrell, Poplar Bluff, for petitioner-respondent.
   MAUS, Judge.

In this action a marriage of 14 years’ duration was dissolved. The primary custody of three children was placed with the wife. The husband was awarded periodic temporary custody. The wife was awarded child support and an attorney’s fee. The property of the parties was distributed. The husband appeals.

The husband’s most strenuously urged point is error in placing the primary custody of the children with the wife. The trial court found the wife suitable to have custody. No other findings on the issue of custody were made or requested. Rule 73.01(a)(2). A brief summary of the evidence follows.

The parties were married in 1969. A daughter was born in 1971, a son in 1975 and a son in 1976. At the time of the marriage, the husband was attending a university. The wife worked as a secretary and contributed her earnings to the support of the family. The husband also worked his last year. Upon the husband’s graduation, they returned to their home community.

The husband held a series of jobs. Some were not too remunerative. There was a brief period of unemployment. Two jobs were some distance from the home. There was conflicting evidence on the amount of time this employment caused him to spend away from home. In 1982, the husband was elected to a responsible public office.

Except for brief periods for the birth of each child, the wife has been employed. She devoted her income to the family. Soon after returning to her home community, she was employed by a government agency. She has since worked continuously for that agency. In 1978, she attended a seven-week training period for employees of this agency. In the fall of 1982, for approximately nine weeks, she participated as an instructor in such a program. In early 1983, she again acted as such an instructor for approximately nine weeks. Each of the training programs was held in a city distant from her home community. Her participation in the programs as an instructor was voluntary.

There was evidence tending to establish the interest and capability of the wife as a parent. She testified that she was the parent who attended to the daily needs of the children. She took them to skating lessons, team trips, swimming, Sunday school, birthday parties, the doctor, etc. She alone was the parent who participated in the customary manner in school activities. She said the husband on occasion drank to excess; he did not devote his time to the family. Instead, he attended ball games, council meetings, sheltered workshop meetings and other similar activities. He spent little time at home or with the children.

That type of evidence tending to favor the husband included the following. He was at home as much as his civic activities and work permitted. He did, when needed, attend to the children. He helped them with homework and took them camping, fishing and hunting. He was the coach of the boy’s soccer team. He took them with him while attending to business affairs. When the wife was participating in an employment training session, he alone adequately cared for the children.

There was evidence that during her first training session, the wife and friends spent many of their evenings in bars and nightclubs. From the evidence, it was inferable that during that session the wife formed a liaison with a musician. There was also undisputed evidence that during this period, she used marijuana on at least one occasion.

During the second training session, she spent her evenings in similar fashion. In December she first met Ron. After returning home, she kept in touch with him by telephone. During the third training session, he had a key to her motel room. After returning home, she maintained a relationship with him by correspondence and telephone. She demonstrated her ardor by sending him parts of a song she wrote. She did not know if it was a love song. She declared she loved him and would love him forever and otherwise referred to their relationship. In June, she made a trip to the city and spent the night with him. Even after learning of the affair, the husband tried to preserve the marriage. The wife conceded her illicit liaison at least contributed to the termination of the marriage. She said that the relationship with Ron was over. But, she did intend to call Ron and report to him the outcome of the proceedings.

In the summer of 1982, the daughter saw the wife and a fellow employee in a woods behind their office. The daughter observed they were smoking something that was not a normal cigarette. There was other evidence tending to establish her use of marijuana.

In a similar vein, a few months before the hearing, at approximately 1:00 a.m., the husband was stopped by a traffic officer. With the husband was a local go-go dancer. He explained she was hitchhiking and he was driving her home. The “baby sitter” hired by the husband played in a band that apparently appeared in local nightclubs. The food this baby sitter most often prepared for the children was cheese sandwiches.

The daughter expressed a desire to live with the husband. She said he was trustworthy, she could always find him and go to him. She was aware Ron called her mother. She had a suspicion that the wife used marijuana.

The two younger children testified together. The first said he wanted to live with the wife because she spent more time with them. She took them to Walmart and K-Mart. He added that when the wife was gone, the husband would sneak out of the house at 1:00 or 2:00 a.m. The second repeated this preference for the mother. The daughter testified the mother had caused the boys to dislike the husband.

The husband contends that in awarding custody, the trial court did not consider the relevant factors as established by statute and decided cases. He says the court did not consider the wishes of the most mature child and cites In re Marriage of Kuhn, 581 S.W.2d 112 (Mo.App.1979). He argues the children were erroneously placed in the custody of one who had an illicit liaison and cites Fastnacht v. Fastnacht, 616 S.W.2d 98 (Mo.App.1981). He asserts it was error to place the children in the custody of one who uses marijuana. In re Marriage of Ryterski, 655 S.W.2d 102 (Mo.App.1983) could have been cited.

The wife contends the determination of custody is not to be made by the mechanical application of such truisms or maxims contained in the cases. She argues there is no reason to believe the trial court did not consider all relevant factors. She recites a view of the evidence which, if believed, supports that determination. Therefore, she concludes the award of custody must be affirmed under the doctrine of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The standard of review enunciated in Murphy v. Carron, supra, is applicable to determinations of custody. B._ v. L._, 558 S.W.2d 738 (Mo.App.1977). The intangible factors involved make it peculiarly appropriate. Fastnacht v. Fastnacht, supra. However, the doctrine of that case cannot be invoked to impede a critical appellate review of such a determination. In re Marriage of Mihalovich, 659 S.W.2d 798 (Mo.App.1983).

It is true custody is not to be determined by a mechanical application or weighing of maxims from decided cases. J_ G_ W_ v. J_ L_ S_, 414 S.W.2d 852 (Mo.App.1967). The ultimate test is the best interests of the children. § 452.375. A good environment and a stable home is generally considered as the most important single consideration in custody cases. In re Marriage of P.I.M., 665 S.W.2d 670 (Mo.App.1984); In Interest of J.L.H., 647 S.W.2d 852 (Mo.App.1983). However, this does not mean maxims from decided cases are to be disregarded. The most advantageous award of custody is to a large degree dependent upon a forecast of future behavior by the custodian. Those maxims generally are recognized guides to the evaluation of past and present conduct in making a forecast of future conduct.

On these principles, adverse consideration of past or present inappropriate conduct of a parent is not limited to conduct that has in fact detrimentally affected the children. Such conduct is of importance, perhaps decisive, “when it is reasonably predictable that the moral environment will adversely affect the child.” Ryan v. Ryan, 652 S.W.2d 313, 315 (Mo.App.1983). Also see In re Marriage of P.I.M., supra. There must be considered what conduct a parent may inspire by example, or what conduct of a child a parent may foster by condonation. Past and present conduct may be a reliable guide to the priorities of a parent. It can also provide an insight into the possibility that a custodial parent will wrench a child from familiar surroundings of accustomed family security. Knoblauch v. Jones, 613 S.W.2d 161 (Mo.App.1981); Galeener v. Black, 606 S.W.2d 245 (Mo.App.1980).

Upon the basis of Murphy v. Carron, supra, this court is called upon to approve a judgment that placed three children in the custody of a parent whose unfavorable conduct need not be restated. This conduct raised issues not resolved by the evidence.

This lack of resolution in part resulted from the view of the trial court that letters from Ron to the wife could not be considered because they were hearsay. Those letters were not admitted. In addition, the husband was not allowed to use the letters as a basis for cross-examination. As proof of the events recited therein, the letters were hearsay. But, this does not mean they were inadmissible when offered to prove the state of mind of the writer. State v. Mucie, 448 S.W.2d 879 (Mo.App.1970), cert. denied, 398 U.S. 938, 90 S.Ct. 1842, 26 L.Ed.2d 271; N.K.M. v. L.E.M., 606 S.W.2d 179 (Mo.App.1980); State ex rel. State Highway Comm. v. City of St. Louis, 575 S.W.2d 712 (Mo.App.1978). A similar letter that contained “language which, on its face, was undoubtedly such as to excite suspicion about the previous relationship between petitioner” and her paramour has been held admissible in Ex Parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949, 955 (1945). Certainly the wife is subject to cross-examination concerning her concurrence in the sentiments and plans and her conduct as reflected in those letters. The same is true of letters from other associates at the sessions. It is apparent those letters and the information that could have been developed upon the basis of those letters were not considered by the trial court. Compare J.L.W. v. D.C.W., 519 S.W.2d 724 (Mo.App.1975).

On appeal, “[ujnless justice otherwise requires, the court shall dispose finally of the case.” Rule 84.14. Only an exceptional case, such as this, demands a different treatment. “Our duty to exercise our jurisdiction presupposes a record and evidence upon which we can function with some degree of confidence in the fairness and accuracy of our final conclusion; in the absence of such record and evidence, we must remand the cause to allow development of a complete and lucid record.” B._ v. L._, supra, at 741. Because of the evidence held inadmissible, issues raised but unresolved and other unique factors, that disposition is particularly appropriate to the determination of custody in this action. Compare Ryan v. Ryan, supra; Walck v. Walck, 651 S.W.2d 559 (Mo.App.1983); Rodden v. Rodden, 527 S.W.2d 41 (Mo.App.1975); V.M. v. L.M., 526 S.W.2d 947 (Mo.App.1975); J_ G_ W_ v. J_ L_ S_, supra.

The husband contends the trial court erred in awarding the wife $1,600 for an attorney’s fee. The award of an attorney’s fee is within the discretion of the trial court. Atwood v. Atwood, 664 S.W.2d 673 (Mo.App.1984). That discretion is to be exercised upon a consideration of all relevant factors. § 452.355. The wife’s conduct is but one factor. It does not, as the husband contends, establish the trial court abused its discretion in making such an award.

For his last point, the husband asserts error in the distribution of the marital property. The weighing of all relevant factors in that distribution is again for the trial court. Forsythe v. Forsythe, 591 S.W.2d 222 (Mo.App.1979). Again, when considered with all other relevant factors, the wife’s misconduct does not establish an abuse of discretion by the trial court. The husband’s argument of a grossly inequitable distribution is based upon estimates contrary even to his own ultimate admissions of value. That argument does not establish error and the point is denied.

The cause is remanded for a de novo hearing upon the issue of custody of the three children and child support. Rule 84.-14. The judgment is affirmed in all other respects. V.M. v. L.M., supra.

PREWITT, C.J., and CROW, J., recused.

TITUS and HOGAN, J., concur.


author: GREENE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Benny JOHNSON, Defendant-Appellant.
    No. 13657.
    Missouri Court of Appeals, Southern District, Division Three.
    Feb. 1, 1985.

      John D. Ashcroft, Atty. Gen., Mary Elise Burnett, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Wesley D. Coleman, Asst. Public Defender, Caruthersville, for defendant-appellant.
   GREENE, Judge.

Defendant, James Benny Johnson, was charged with, court-tried, after waiving trial by jury, and convicted of the class A felony of rape, § 566.030.3, .4, RSMo 1978 (amended 1980), and thereafter sentenced to 20 years’ imprisonment for the commission of the crime.

The particulars of the charge were that Johnson had sexual intercourse with I.M.B., to whom Johnson was not married, and who was less than 14 years old, by use of forcible compulsion, and that in the course of such offense, Johnson displayed a deadly weapon in a threatening manner.

The sole point raised by Johnson in his appeal is that the trial court erred in overruling his motion for judgment of acquittal filed at the close of all of the evidence because the evidence was insufficient as,a matter of law to support the judgment. Johnson alleges that I.M.B.’s testimony was legally insufficient to sustain the conviction because her' testimony at trial was contradictory and unconvincing, and was pot corroborated.

We view the evidence and all favorably inferences drawn therefrom in the light most favorable to the state, disregarding all evidence and inferences to the contrary. State v. Cooper, 673 S.W.2d 848, 849 (Mo.App.1984). We also note that the uncorroborated testimony of a rape victim will ordinarily sustain a rape conviction, State v. Chamberlain, 648 S.W.2d 238, 240 (Mo.App.1983), and that corroboration of her testimony is only required when the victim’s testimony is so contradictory and in conflict with physical facts, surrounding circumstances, and common experience as to be doubtful and unconvincing. State v. Harris, 620 S.W.2d 349, 353 (Mo. banc 1981).

Keeping these principles in mind, evidence that sustains the judgment is as follows. I.M.B. is a 13 year old girl. Johnson, a 32 year old male, is six feet tall and weighs 210 pounds, and is an intimate friend of the little girl’s older sister. On the afternoon preceding the incident in question, Johnson and two friends were “messing around,” and “drinking beer and stuff.” About 9 P.M., Johnson and one of his friends went to the home of I.M.B.’s sister where they continued “drinken’ and what have you.” Johnson was drunk, and did not remember much of what went on. Johnson’s friend left. I.M.B.’s older sister went upstairs to sleep. Johnson continued drinking at the kitchen table. The little girl started to go to bed in a downstairs bedroom. Johnson told her not to lock the door. She was afraid of Johnson, who had displayed a gun earlier, and said “he felt like killin’ everyone in the house.”

ItM.B. put on her pajamas over her underwear and got in bed. Shortly thereafter, Johnson came in the bedroom, laid a gun and knife on the floor and threatened to cut her throat. Through fear of force, she submitted to sexual intercourse. Johnson then told her to go upstairs. She complied, and slept with her nieces, who were her Sister’s children. The next morning, Johnson told her if she told anyone, he would hurt her.

Instead of going to school, she went home and told her brother what had happened. He called family friends. One of the friends, who wa.s a Purse, came to the home. She observed that the little girl was crying, sobbing, and saying, “He made me do it.” The victim, who was in a hysterical state was taken to the hospital, where a doctor found swelling in her vaginal area. A vaginal smear showed positive for semen. The doctor noticed the child was upset.

Johnson took the stand in his own defense and denied that he raped the little girl. He said the witnesses against him, including the nurse, were not telling the truth, and that the little girl had made up the rape story to cause trouble between her sister and Johnson, whom she did not like. The trial court did not believe this testimony, and understandably so, since Johnson, during cross-examination, admitted prior criminal convictions for robbery, operating a motor vehicle without the owner’s consent, attempted burglary, uttering a forged instrument, and unlawful flourishing of a deadly weapon.

The testimony of the complaining witness was corroborated by the testimony of the nurse and the doctor, and was sufficient to sustain the finding of guilty.

Judgment affirmed.

CROW, P.J., and TITUS and FLANI-GAN, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Randy Lee KELLER, Defendant-Appellant.
    No. 13676.
    Missouri Court of Appeals, Southern District, Division Three.
    Feb. 1, 1985.
    J. Kent Howald, Pros. Atty., Steelville, for plaintiff-respondent.
    Sidney T. Pearson, III, Pearson & Carter, St. James, for defendant-appellant.
   GREENE, Judge.

Defendant, Randy Lee Keller, was jury-convicted of the class B misdemeanor of operating a motor vehicle while in an intoxicated condition, § 577.010, and sentenced by the trial court to three months in the Crawford County jail and a fine of $300.

.. In his appeal, Keller first contends that it was error for the trial court to overrule his motion for judgment of acquittal filed at the close of the state’s case because “the corpus delicti had not been established by evidence independent of an extra judicial statement that defendant was operating an automobile, which is a necessary element of the crime charged.”

The evidence at trial was that Missouri State Highway Patrol Trooper T.M. Han-non, while investigating a report of an accident involving an automobile striking a road sign, observed Keller and another person attempting to push the automobile in question away from its position atop the broken sign with a third person at the wheel of the car. Hannon asked what happened, and Keller told him, “We’ve been run off the road.” Hannon noticed that Keller’s speech was slurred, and that he had a strong odor of intoxicants on his breath. Keller then told Hannon that he had been driving the car at the time of the accident. After administration of the recitation of the alphabet test, which Keller failed, and after observing the defendant stagger when he walked, Hannon arrested Keller on the DWI charge. A subsequent breathalyzer test showed that Keller had a blood alcohol content by weight of sixteen hundredths of one percent, which was evidence, under the law, that Keller was intoxicated.

Keller’s first claim that the admission into evidence of his statement that he was driving the automobile at the time of the accident came in his brief filed here on appeal. He did not object to the admission into evidence of Hannon’s testimony that Keller said he was driving the car, did not raise the issue in his motion for judgment of acquittal at the close of the state’s case, and did not raise it in his motion for new trial. The point was not preserved for appellate review. State v. Walker, 629 S.W.2d 558, 559 (Mo.App.1981); State v. Sammons, 640 S.W.2d 488, 489 (Mo.App.1982); State v. Wells, 585 S.W.2d 267, 269 (Mo.App.1979).

Keller’s remaining point is that the trial court erred in refusing his application for probation. He states that the reason given by the trial court for the refusal was that since defendant had requested a jury trial and the jury had recommended a three months’ sentence, the trial court was not going to interfere with the jury verdict and recommendation of jail time.

The record reveals that, at the time of sentencing, the trial court had before it Keller’s past criminal record, which showed prior convictions of driving while intoxicated and sale of marijuana. Probation is a privilege, not a right, which may be granted or withheld in the discretion of the sentencing court. State v. Wood, 668 S.W.2d 172, 175 (Mo.App.1984). Denial of probation by the trial court is not reviewable, absent a showing of extreme abuse of discretion. State v. Austin, 620 S.W.2d 42, 43 (Mo.App.1981).

The net effect of the trial court’s remarks concerning Keller’s request for a jury was that Keller had requested a jury; the jury had recommended a sentence of three months in jail and a fine, and that the trial judge saw no reason,,under the facts, to deviate from the jury’s Recommendation, and grant probation. Neither do we. We find no abuse of discretion, extreme or otherwise. The point is denied.

Judgment affirmed.

CROW, P.J., and TITUS and FLANI-GAN, JJ., concur.

      . Unless otherwise indicated all references to statutes are to RSMo 1978, V.A.M.S.


author: KELLY, Presiding Judge.

text:
    Harold HARRIS, et al., Plaintiffs-Respondents, v. UNION ELECTRIC COMPANY, et al., Defendants-Appellants.
    No. 46484.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 5, 1985.

      Bryan, Cave, McPheeters & McRoberts, Thomas S. McPheeters, Jr., David S. Slavkin, Sehlafly, Griesedieck, Ferrell & Toft, Francis X. Duda, St. Louis, for defendants-appellants.
    Campbell & Radloff, David L. Campbell, Haley, Fredrickson, Walsh & Herndon, Edward W. Fredrickson, St. Louis, for plaintiffs-respondents.
   KELLY, Presiding Judge.

„ Union Electric Company and Centerre Trust Company have appealed from an order awarding $719,937.39 in attorneys’ fees and expenses to petitioners, David L. Campbell and Edward L. Frederickson, attorneys for plaintiffs, and Union Electric Company has appealed from the denial of its Application for Reasonable Attorneys’ Fees and Expenses in an amount of $271,-554.77. We hold that the trial court’s order concerning both parties’ application for attorneys fees and expenses is not an appeal-able order and dismiss the appeals as premature.

This case arises out of an attempt by Union Electric Company in 1978 to redeem its First Mortgage Bonds, IOV2 Series due March 1, 2005 (Series 2005 Bonds), at a special redemption price. Plaintiffs-Respondents Harold Harris, Continental Casualty Company and National Fire Insurance Company of Hartford, individually and on behalf of all holders of the bonds, instituted this action seeking declaratory and in-junctive relief and damages. After suit was filed, Union Electric announced its intention to cancel the redemption plans stating that the redemption had been blocked by the filing of the lawsuit.

Respondents’ initial petition contained eleven counts. Counts I, II and IV were consolidated and severed by the trial court for consideration solely of the rights of the parties under the applicable indentures at a separate trial. Thereafter the trial court granted respondents’ motion for summary judgment and denied Union Electric’s motion for partial summary judgment. On appeal this court reversed the trial court’s action, remanded the cause to the trial court with directions and held that the trial court erred in granting summary judgment and that, as a matter of law, Union Electric’s motion for partial summary judgment should have been sustained. Harris v. Union Electric Company, et al., 622 S.W.2d 239 (Mo.App.1981).

On remand the trial court entered its order effecting the directions of this court. On January 28, 1982, respondents filed a Second Amended Petition in four counts. Count I is a claim for declaratory and equitable relief against Union Electric and Cen-terre Trust based on several theories; es-toppel, mutual mistake and reformation, and various federal securities laws. Counts II, III and IV seek damages against Union Electric and the underwriters based upon alleged violations of the federal securities laws (Count II), common law fraud (Count III), and common law breach of warranty (Count IV). Each of these claims relates to the alleged inadequacy of Union Electric’s prospectus and registration statement disclosure. All defendants, Union Electric, Centerre Bank and the underwriters filed separate motions to dismiss on various grounds, although one common ground alleged by all defendants is failure to state a claim.

While these motions were still pending, Union Electric, on March 22, 1982, filed a Second Motion to Dismiss Plaintiffs’ Application for Fees and Expenses. This motion was summarily denied on April 13, 1982. During this interim Union Electric had submitted an application for Attorney’s Fees and Costs on April 2, 1982. In this application Union Electric claimed that its redemption and refund attempt was “frustrated and terminated by the institution of (plaintiffs’) suit,” and that as a consequence it had incurred interest costs of $570,000 annually in the years 1978-1982, attorneys’ fees, and expenses totalling $3,325,000. Union Electric relied upon Section 12 of Article IX of the Composite Indenture. Union Electric alleged that plaintiffs’ claim had been found to be without merit, as this court’s opinion in Harris, supra, so held, and that said claims were made in bad faith, and therefore it was entitled to attorneys’ fees and costs.

On May 14, 1982, petitioners-respondents filed an Amended Application for Fees and Expenses seeking $1,500,000 in attorneys’ fees, wherein it alleged in pertinent part:

But for the aforesaid services performed by petitioner and his employees and petitioner’s co-counsel, the plaintiffs and the Class members would have suffered the premature redemption of the Series 2005 Bonds at par, in that the defendant Union Electric Company’s plans to redeem the Series 2005 Bonds and to replace the bonds with 9.35% refunding issue dated July 1, 1978, were cancelled by said defendants solely because of the services performed by the petitioner and the action taken by him in representing the interests of the plaintiffs and Class members.

Petitioners sought recovery against Union Electric, or, in the alternative, the imposition of an attorneys’ lien on future bond interest payments to the bondholders.

Union Electric then filed a Motion to Strike, to Compel Notice and for a Continuance wherein it claimed that the petitioners’ claim for fees was of dubious merit particularly in view of this court’s decision in Harris, supra, that the Series 2005 Bonds were redeemable. Union Electric further requested the trial court to give notice to the Class members inasmuch as their own attorneys sought to recover fees against the members of the Class. Cen-terre also filed a Motion to Strike.

On May 25, 1982, the trial court sustained Centerre’s Motion to Strike petitioners’ Application for Attorneys’ Fees as to the bondholders only, without prejudice, and with leave to refile.

A three day evidentiary hearing was held and the trial court considered the separate application for fees and expenses of both petitioners and Union Electric.

At this time the case was in the following procedural posture. The trial court’s summary judgment in favor of plaintiffs on their contract claim was reversed by this court on appeal and partial summary judgment holding the bonds redeemable was entered for Union Electric on the contract issue. Shortly thereafter plaintiffs filed their Second Amended Petition mentioned hereinabove wherein they sought recovery under various theories. Appellants contested each of these theories of recovery.

It was petitioners’ theory during the hearing on their Application for Attorneys Fees that they were entitled to such fees because, (1) the indentures so provided, and (2) they preserved a benefit for the Bondholders since the practical effect of their lawsuit was to prevent Union Electric from implementing their proposed redemption, despite the facts that they did not recover any tangible funds for the plaintiffs and this court has specifically held that Union Electric has the contract right to redeem the bonds as it intended.

At the outset of the hearing Union Electric, as noted above, moved for a continuance of the hearing on the grounds that the matter of attorneys’ fees was untimely because unresolved issues remained in the case and also because plaintiffs’ claims had been partially defeated. This motion was denied, and the application proceeded to the hearing mentioned hereinbefore after which the order granting petitioners’ attorneys’ fees and expenses was entered. The trial court, in its order, designated the order a final and “appealable Order, Judgment and Decree.”

The parties to this appeal have not raised the question whether the order appealed from is an appealable order; nevertheless, we have a duty to determine ex mero motu whether an appealable order has been rendered by the trial court. Donnelly v. American Family Mutual Insurance Company, 652 S.W.2d 744, 745[1] (Mo.App.1983). The right of appeal is statutory, Moreland v. State Farm Fire and Casualty Company, 620 S.W.2d 24, 25[1] (Mo.App.1981), and an appeal may be taken only from a final judgment, § 512.020 RSMo 1978. Finality of judgment is a jurisdictional prerequisite to our appellate jurisdiction. Hagemann-Mullen Excavating Co., Inc. v. Fenlon, et al., 670 S.W.2d 584, 585[1] (Mo.App.1984). In general, for a judgment to be final it must dispose of all parties and issues in the case, id., p. 585[2],

We recognize that the trial court may in furtherance of convenience or to avoid prejudice or when separate trials will be conducive to expedition and judicial economy, order a separate trial on any claim, cross-claim, counter-claim, or third-party claim, or of any separate issue, or of any number of claims, cross-claims, counter-claims, third-party claims or issues. Rule 66.02, RSMo 1978. Though the record does not indicate, presumably the trial court conducted the parties’ fees applications hearing under this rule.

We also recognize that Rule 81.06 authorizes the trial court to designate a partial judgment final for purposes of appeal. Presumably the trial court utilized this rule in paragraph 19: “the foregoing provisions of this Memorandum, Order and Decree are hereby designated to be a final and appeal-able Order, Judgment and Decree.”

It is clear from the record that this partial judgment for attorneys’ fees does not dispose of all issues and all parties. In fact, the “partial judgment” was rendered in this case without any resolution of any of the substantive legal issues contained in plaintiffs’ underlying claim. The trial court’s order is presented for appellate review as a final judgment only because the trial court has so designated it. This designation is not conclusive. “Whether a judgment is final and appealable is not determined by the name applied but by the content, substance, and effect of the order entered.” Starnes v. Aetna Casualty and Surety Company, 503 S.W.2d 129, 131[5] (Mo.App.1973); Klippel v. Watkins, 667 S.W.2d 28, 30[2] (Mo.App.1984).

The circumstances of each case control, but the general thrust of our Missouri cases is clear. The trial court may render a partial disposition a final judgment for appeal by designating it as such; however, the claims and parties separated and the result adjudged must constitute an independent unit which finally disposes of the claims and the parties within the unit. Shell v. Shell, 605 S.W.2d 185, 191[6] (Mo.App.1980) See also Klippel v. Watkins, supra at 30[4]. In the instant proceedings, the amount and even propriety of an award of attorneys fees to petitioners, does not constitute a ‘judicial unit’ which properly may be designated a final judgment for purposes of appeal. As indicated above, no substantive issues concerning the merits of plaintiffs’ claim have even been addressed at the trial level.

The record reveals that the order allowing attorneys’ fees was in response to an Amended Application for Attorneys’ Fees and Expenses for services rendered and expenses incurred on behalf of the plaintiffs up to and including the date of the filing of said Application on May 14, 1982, and other services to be performed prior to the trial court’s ruling on said Application. It was not to include “any services performed or to be performed in connection with appeals, the appellate process or subsequent trials or hearings on the merits of plaintiff’s cause of action.” It did not dispose of all issues and all parties and was not therefore a final appealable order. We so hold.

Under these circumstances, the trial court erred in severing the attorney’s fees issue for separate trial and in designating his subsequent order on this issue as final and appealable. Were we to address the merits of appellants appeal at this time, we would be encouraging litigants to bring cases to the appellate courts of this state in a piecemeal fashion. Orf v. Computer Institute, Inc., 480 S.W.2d 73, 75[1] (Mo.App.1972). This we are not inclined to do.

The same holding is applicable to Union Electric’s appeal from the order denying its application for attorneys fees, which too sought attorneys fees and expenses prior to the disposition of all parties and all issues in the case.

While the same holding we have reached would be dispositive of Centerre’s appeal, there is a further reason why Centerre’s appeal must be dismissed.

As we have stated earlier in this opinion, the right of appeal exists solely by statute. Moreland, supra. Section 512.-020 RSMo 1978 provides: “Any party to a suit aggrieved by a judgment of any trial court in any civil cause ... may take his appeal to a court having appellate jurisdiction ...” A party is “aggrieved” when the judgment operates prejudicially and directly on his personal or property rights or interest and such is an immediate and not merely a possible remote consequence. Hertz Corporation v. State Tax Commission, 528 S.W.2d 952, 954[2] (Mo. banc 1975).

Centerre claims that it is aggrieved because the trial court’s construction of Article IX, Section 12 of the Composite Indenture in its award of attorneys’ fees may be binding on it in the future. Such argument is an inadequate basis for standing. “[An] appellant’s interest, to suffice, must be a direct and immediate pecuniary interest in the particular cause, and it is not sufficient that he is interested in the question litigated, or that by the determination of the question litigated, he may be a party in interest to some other suit, growing out of the decision of that question.” American Petroleum Exchange v. Public Service Commission, 238 Mo.App. 92, 176 S.W.2d 533, 534[2] (1943). It is apparent that any damage Centerre has suffered from the award of attorneys’ fees is remote at best. The award was against Union Electric, not Centerre. Centerre was not a party to the application and is in no manner bound by the trial court’s award. Further, the award of attorneys’ fees was not only predicated upon the Indenture language but also upon the exercise of the general equitable power of the trial court. In short, Centerre has no interest in the subject matter of the application for attorneys’ fees and therefore lacks standing to appeal. Columbia Union National Bank and Trust Co. v. Bundschu, 641 S.W.2d 864, 868, 872[2] (Mo.App.1982).

The propriety and amount of the award of attorneys’ fees and expenses shall abide the final disposition of all issues as to all parties to this case and execution therein is hereby ordered stayed.

Appeals dismissed.

SNYDER and GAERTNER, JJ., concur.

      . Defendants at the trial level were Union Electric Co., Centerre Trust Company (formerly St. Louis Union Trust Co.), and a group of underwriters, Merril, Lynch, Pierce, Fenner & Smith, Inc.; Bache, Halsey, Stuart, Shields, Inc.; White Weld, Inc.; and Lehman Brothers, Kuhn, & Loeb, Inc. Union Electric Company appealed in our case No. 46484, and Centerre Trust appealed in our case No. 46525. Both cases have been consolidated by this court in No. 46484.

      . On January 9, 1980, after the trial court had granted summary judgment for plaintiffs which this court subsequently reversed, plaintiffs filed their first Application for Attorney’s Fees and Expenses. Defendants Union Electric and Cen-terre both filed motions to dismiss plaintiffs’ application. The trial court sustained Centerre’s motion to strike that portion of plaintiffs’ application which sought to impress an attorney’s lien on future bond interest payments without prejudice; the trial court also overruled Union Electric’s motion to dismiss plaintiffs’ application for fees.

      . "... the parties to this indenture and the Bondholders agree that the court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorney’s fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant ...”

      . Respondent’s counsel at argument candidly admitted that if it became necessary to try the other counts of this petition further attorney’s fees would be sought.


author: GAERTNER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jeffrey GALVAN, Defendant-Appellant.
    No. 47993.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 5, 1985.
    Hale W. Brown, Kirkwood, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   GAERTNER, Judge.

Defendant pled guilty to two counts of possession of a controlled substance, § 195.020, RSMo.1978. Prior to sentencing, defendant filed a motion to withdraw his guilty plea. The court denied his motion and sentenced defendant to four years on each count to run consecutively. From the denial of his motion, defendant appeals. We affirm.

In reviewing the record of the guilty plea proceedings held on February 9, 1983, the following facts are revealed.

Defendant stated that he wished to withdraw his previous plea of not guilty and enter a plea of guilty to the two counts of possession. The court informed him he would have to ask him questions to determine if his guilty plea was knowingly, intelligently and voluntarily made. Defendant’s attorney informed the court that defendant was under the care of a physician and on medication. Counsel further stated he “was convinced [defendant] knows what he’s doing.” Defendant’s wife was also present and questioned by the court. She agreed that defendant was competent and knew what he was doing.

Defendant testified he was taking Valium, Mellarel and Decapryn. He also said he had taken two Contacts for his cold. Defendant stated he understood what he was doing even though he was on medication. However, at various times during the proceedings, defendant was hesitant in admitting his guilt and professed his innocence. The court continued to inform defendant that he could withdraw his guilty plea and have a jury trial if he desired. Defendant declined to do so. The court then suggested, explained and offered an Alford plea to defendant. Defendant understood this concept and entered an Alford plea of guilty. Defendant further testified he was “tired of going to trial” and “thought he could get a better deal [by pleading].”

At the close of the proceedings the court ordered a pre-sentence investigation and delayed formal sentencing. On November 7, 1983, the sentencing was held. The delay was attributed to defendant having been admitted to a drug treatment program and the court having waited for a copy of the doctor’s report. At this time defendant moved the court to allow him to withdraw his previous plea of guilty. Defendant’s motion was denied, and sentence was pronounced.

Defendant contends that at the time of the guilty plea proceedings he was under the influence of drugs and as such his plea was not knowingly, intelligently nor voluntarily made.

The principles of appellate review of a denial of a motion to withdraw a guilty plea are firmly entrenched in Missouri. Only if the trial court’s ruling was erroneous or if there was an abuse of discretion will the plea be set aside. State v. Cowan, 615 S.W.2d 510, 511 (Mo.App.1981); State v. Nielson, 547 S.W.2d 153, 158 (Mo.App.1977). The burden of proof rests on the defendant to show by a preponderance of the evidence that the trial court was incorrect in denying his motion. Jackson v. State, 654 S.W.2d 105 (Mo.App.1983). Ultimately the question to be answered is whether the plea was voluntarily and intelligently made. Nielson, 547 S.W.2d at 159. If it was, then the trial court did not abuse its discretion in denying the motion and the guilty plea will stand.

On several occasions defendant stated he understood what was going on at the guilty plea proceedings. Additionally, both defendant’s wife and counsel stated they felt defendant knew what he was doing. There is no indication in the record that the prescription medication defendant was taking affected his mental capacity. His responses to the court’s questions were lucid and coherent. However, defendant asserts that he was at that time addicted to drugs. But the mere addiction to or ingestion of drugs “does not in and of itself render one incompetent to plead guilty.” Gillespie v. State, 655 S.W.2d 830, 831 (Mo.App.1983). The court was fully apprised of the medication prescribed to defendant at the time of the proceedings. Defendant was extensively questioned by the court as to the effect the medication he was on had on his ability to comprehend the proceedings. His only response was “on that medication I have to ask things over, you know.” Except for that statement, there is no evidence in the record that defendant did not understand or realize what he was doing. Furthermore prior to sentencing defendant underwent treatment in a drug program and the doctor’s report and findings were sent to the court to be considered in the sentencing. Although the report was not before this court, the trial judge reviewed it and did not find any evidence within it to warrant the withdrawal of the guilty plea. Additionally, defendant did not cite any information contained in the report that would substantiate his contention that he did not know what he was doing. Moreover, at the guilty plea proceedings, when the Alford plea was explained to defendant, he readily understood and indicated he preferred to plead in this manner given the facts of his case. The latter is another demonstration that defendant’s mental capacity was not being clouded by the medication.

Defendant next asserts that in addition to the drugs, the hesitant manner in which he pled guilty was indicative that he was not making a knowing, voluntary and intelligent plea. A guilty plea can be accepted where there is no admission of guilt or where there are declarations of innocence. State v. Jackson, 651 S.W.2d 547, 549 (Mo.App.1983). In reviewing the record of the guilty plea proceedings there is no evidence that defendant’s plea was equivocal. He was fully aware of all the elements of the charges against him. Defendant was able to recount the facts of the incident. He further indicated to the court that he was pleading guilty via an Alford plea because the state had the necessary evidence to convict him if he went to trial, thus implying this was his best alternative.

Finally, at the time of his motion to withdraw his plea of guilty, defendant produced no evidence other than his personal allegations that he was under the influence of drugs and they affected his ability to understand. There being no evidence to support defendant’s contention, the trial court was not erroneous in denying the motion. Lawrence v. State, 649 S.W.2d 263, 264 (Mo.App.1983). Defendant’s point is denied.

Having reviewed the record, there is sufficient evidence that the plea was knowingly, voluntarily and intelligently made. The judgment of the trial court is affirmed.

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

      . The transcript indicates he had recently been tried and acquitted three times on unrelated charges.


author: SMITH, Presiding Judge.

text:
    L.M.K., Petitioner/Appellant, v. D.E.K., Respondent.
    No. 48030.
    Missouri Court of Appeals, Eastern District, Division Four.
    Feb. 5, 1985.

      Charles D. Sindel, Clayton, for petitioner/appellant.
    William L. Pannell, Festus, for respondent.
   SMITH, Presiding Judge.

Petitioner appeals from an order awarding custody of children to respondent based on respondent’s action to modify a dissolution decree. We reverse and remand.

The marriage of petitioner (wife) and respondent was dissolved on November 4, 1969.. Petitioner was awarded custody of the only child born of the marriage, Lisa. Petitioner remarried a different man and during pendency of that marriage gave birth to another child, Stacey, on July 27, 1973. That marriage also ended in dissolution. Respondent, contending that Stacey was the product of a “reconciliation,” claimed parentage of Stacey. In September 1982, respondent moved for modification of the dissolution decree seeking primary custody of both children. Respondent is remarried to another woman. The trial court made a finding that Stacey was the daughter of respondent and ordered the decree of dissolution modified to award primary custody of both children to respondent. Neither petitioner’s second husband nor Stacey were made parties to the proceeding. This appeal followed.

A trial court has continuing jurisdiction to modify a dissolution decree. This power is also applicable to the custody of the children of the marriage. Burchett v. Burchett, 572 S.W.2d 494 (Mo.App.1978) [1]. The authority of the court in granting custody and support in the dissolution action is to provide for the children of the marriage. Secs. 452.305, 452.340, 452.375, RSMo.1978. It cannot possibly provide for the custody and support of a child which has not even been conceived and therefore does not exist. Sec. 452.410 RSMo.1978, provides that modification shall not occur unless the court has jurisdiction and finds that a change in the circumstances of the child or its custodian has occurred since the original decree. A modification of custody can only apply to a child of the marriage which was the subject of the dissolution proceeding as it is the judgment of dissolution which is being modified. Stacey was not such a child. She was not even conceived until long after dissolution of the marriage. The trial court lacked jurisdiction on a motion for modification to determine the custody of Stacey.

Paternity may be determined in a declaratory judgment suit. K.D.R. v. D.E.S., 637 S.W.2d 691 (Mo. banc 1982) [2, 3]. It can also be determined as an issue in a dissolution action. State ex rel. Lackey v. Hoester, 599 S.W.2d 272 (Mo.App.1980). We see no reason why a count for declaration of paternity and custody of one child could not be joined in a case such as the one before us with the count for modification of custody of the other child. Here the two children are at least half-sisters and if respondent’s paternity claim is correct, full sisters. The custody determination of Lisa must properly consider whether her best interests warrant having the sisters under separate custody. Sec. 452.-375.2(3) RSMo Cum.Supp.1984. That decision in turn is dependent on the outcome of the paternity action which will determine the placement of the custody of Stacey. It is clear, however, that a paternity suit affects the rights of more than the mother and claimed putative father. There is no stronger presumption in law than the presumption that a child born during wedlock is the child of the husband. Brown v. Brown, 609 S.W.2d 223 (Mo.App.1980) [7]; Amber B. v. Leland S., 592 S.W.2d 201 (Mo.App.1979) [1]. The presumptive father has an interest in the proceeding and before his status can be changed and he is deprived of his rights with respect to the child he is entitled to notice of the action and has a right to be heard. He is an indispensable party to the litigation. Amber B. v. Leland S., supra, [2]; Rule 52.-04(b). The presumptive father was not a party to this action nor does the record reflect any notice to him of the proceeding.

Further, the rights of the child require her joinder in the action and the appointment of a guardian ad litem for her. L. v. R., 518 S.W.2d 113 (Mo.App.1974) [12]. This is particularly true here where the efforts of the respondent are to bastardize the child. Hannibal v. Hannibal, 604 S.W.2d 824 (Mo.App.1980) [2]; S. v. S., 595 S.W.2d 357 (Mo.App.1980) [5, 6].

The evidence of illegitimacy was less than compelling. It consisted of respondent’s testimony that he was the father and had provided support for Stacey, petitioner’s prior petition for a change of name for herself and the child to respondent’s surname, her testimony at that proceeding, and an affidavit in the change of name proceeding by the presumptive father that he was not the father. In the trial here, mother denied respondent’s paternity although having alleged it in the change of name petition. The affidavit of the presumptive father is not part of the record nor is petitioner’s testimony at the change of name proceeding. The record contains no evidence of non-access during the conception period by the presumptive father nor any scientific evidence, such as blood tests, to establish paternity. The change of name proceeding does not depend for its outcome upon the establishment of paternity. Sec. 527.270 RSMo.1978; Matter of Natale, 527 S.W.2d 402 (Mo.App.1975); In re Reed, 584 S.W.2d 108 (Mo.App.1979). That is not an operative fact in such a proceeding, and testimony concerning paternity is not material to that proceeding. The court’s finding of paternity in that action is entitled to no presumption of correctness. Nor can the action of the court in the change of name proceeding in ordering an amendment to Stacey’s birth certificate to reflect respondent as the father be considered in this proceeding. The probative value of a delayed or altered certificate must be determined by the judicial official before whom it is offered. Secs. 198.235 and 193.255 RSMo.Cum.Supp.1984. Such a certificate issued pursuant to a court proceeding in which indispensable parties were not joined has no probative value.

The evidence necessary to bastardize Stacey must be so clear, cogent and convincing as to support no other conclusion than illegitimacy. Brown v. Brown, supra, [7]. The absence of the presumptive father and a guardian ad litem for Stacey obviated development of evidence meeting that test. The judgment of the trial court as to Stacey was beyond the jurisdiction of the court both because of the absence of subject matter jurisdiction under the motion to modify and because of the absence of indispensable parties.

The trial court did have jurisdiction of Lisa’s custody. However, because of the improper determination of Stacey’s custody, the Court could not and did not evaluate whether the best interests of Lisa would justify splitting the custody of the siblings. That is a consideration in determining Lisa’s custody. Feese v. Feese, 613 S.W.2d 882 (Mo.App.1981) [3, 4]; Sec. 452.-375.2(3) RSMo.Cum.Supp.1984. The judgment modifying the custody of Lisa must be remanded for such evaluation.

The judgment of the trial court is reversed and the cause remanded with leave to respondent to amend his motion for modification to add a count for declaratory judgment of paternity and custody of Stacey and for further proceedings in accordance with this opinion.

SNYDER and SATZ, JJ., concur.

      . Petitioner’s further point, that the trial court erred in denying her affirmative relief because she had not purged herself of contempt for keeping the children contrary to a temporary order of custody, should not arise upon remand. Upon return of the children through the action of the sheriff, petitioner's ability to purge herself of contempt terminated. While contemptuous behavior may be considered in assessing the fitness of a guardian, it cannot be utilized to deny a placement which is in the best interests of the child.


text:
    Barbara KAPPER, surviving daughter of Haskel R. Bliss, deceased, Plaintiff-Appellant, v. NATIONAL ENGINEERING COMPANY, Defendant-Respondent.
    No. 48683.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 5, 1985.

      Ernie Brasier, St. Louis, for plaintiff-appellant.
    Robert E. Keaney, St. Louis, for defendant-respondent.
   GAERTNER, Judge.

Plaintiff appeals from an order sustaining defendant’s motion to dismiss because of improper venue.

Plaintiff, Barbara Kapper, daughter of Haskel R. Bliss, filed a petition in the Circuit Court of the City of St. Louis, alleging that defendant, National Engineering Company, was responsible for the wrongful death of her father which allegedly occurred in Maries County, Missouri. Plaintiff is a resident of the City of St. Louis and defendant is a Delaware corporation which maintains no office or agent for transaction of usual and customary business anywhere in Missouri. Defendant filed a motion to dismiss plaintiff’s petition for improper venue and the circuit court sustained this motion, dismissing plaintiff’s case without prejudice. From that judgment plaintiff filed this appeal.

Defendant has filed a motion to dismiss plaintiff’s appeal pursuant to Rule 84.10 in that a dismissal for improper venue without prejudice is not an appealable order. We agree.

The appellate court is without jurisdiction whenever the judgment which is appealed is not final. Taylor v. F.W. Woolworth Company, 641 S.W.2d 108, 110 (Mo. banc 1982). If the judgment is not final then the appeal must be dismissed. Knight v. Keaton, 660 S.W.2d 752, 753 (Mo.App.1983). In the present case, the trial court dismissed plaintiff’s petition for improper venue without prejudice. See Rule 67.05. Plaintiff is not precluded from bringing this action in the proper forum. Furthermore, it is not a judgment on the merits of the claim and does not dispose of all the issues. Therefore, to challenge a dismissal on venue grounds, an extraordinary writ should be employed rather than a direct appeal. Davidson v. Hess, 673 S.W.2d 111, 112 (Mo.App.1984).

Although the appeal must be dismissed we nevertheless wish to recognize plaintiff’s argument that the ruling of the trial court favors non-resident corporations and is unfair to Missouri citizens. The onus for this unfortunate situation should not be placed upon the trial judge who had no alternative but to rule as he did. Rather, the problem arises because § 508.040, RSMo. 1978, the corporate venue statute, provides for actions to be brought against corporate defendants only in the county where the cause of action accrued or where the corporation shall keep an office or agent for the transaction of its usual and customary business. Section 508.010(4), RSMo. 1978, which permits an action against a non-resident individual to be brought within any county of this state has no application where the sole defendant is a corporation. State ex rel. Coca-Cola Bottling Company of Mid-America v. Gaertner, 681 S.W.2d 445 (Mo. banc 1984). Other than the addition of language relating to suits against railroads, § 508.040, has remained in its present form for over 120 years. See General Statutes of Missouri, 1866, Chapter 62, § 25, 330. Although our laws have kept pace with the massive changes in business and commercial practices which have occurred during this period by the enactment Long Arm Statutes and the recognition of personal jurisdiction through minimum contacts, we have not seen fit to change the law with regard to venue over foreign corporations. This case is illustrative of the need for such a change. However, such change must come from the legislature, not the courts.

Appeal dismissed.

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

      . No request for transfer pursuant to Art. V, § 11 of the Missouri Constitution was made. Accordingly, we do not address the effect of that section.


text:
    Dennis ROBB, Appellant, v. KANSAS CITY POWER & LIGHT COMPANY, W.H. Miller, J.R. Miller, and L.H. Dolci, Respondents.
    No. WD 35785.
    Missouri Court of Appeals, Western District.
    Feb. 5, 1985.
    Michael D. Gordon, Kansas City, for appellant.
    Eric T. Swanson, Kansas City, for respondents.
    Before TURNAGE, C.J., and MANFORD and KENNEDY, JJ.
   ORDER

PER CURIAM:

This is a direct appeal from a summary judgment in a civil action for wrongful discharge.

The judgment is affirmed. Rule 84.16(b).


author: CROW, Judge.

text:
    Barbara VAN KAMPEN, Personal Representative of the Estate of Albert J. Wyma, Deceased, and Grace D. Stevens (formerly Grace D. Wyma), Plaintiffs-Appellants, v. Jesse W. KAUFFMAN, et al., Defendants, Missouri Highway and Transportation Commission, Defendant-Respondent.
    No. 13782.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 6, 1985.

      Kerry D. Douglas, Douglas, Douglas, Lynch & Ashlock, P.C., Bolivar, and Don W. Owensby, Buffalo, for plaintiffs-appellants.
    Bruce A. Ring, Paula Lambrecht, Jefferson City, for defendant-respondent.
   CROW, Judge.

By warranty deed executed May 4, 1979, Jesse W. Kauffman and Rose Kauffman conveyed to Albert J. Wyma and Grace D. Wyma, husband and wife, for a price of $55,000, certain real estate in Hickory County on which, so the Wymas believed, the Pomme de Terre Motel, a one-building inn, was situated. The land lies south of Highway 54, just east of the Pomme de Terre River near Hermitage. The Wymas paid the Kauffmans $25,000 cash and executed a promissory note to the Kauffmans for the remaining $30,000, secured by a deed of trust on the real estate.

Fifteen months later, on August 4, 1980, the Wymas entered into a contract with Clifford E. Peterson and Dana R. Peterson to sell the property to the Petersons. Before that sale was closed, however, the Petersons learned that a sizable portion of the Motel encroaches on the right-of-way of Highway 54. Consequently, the Petersons refused to go through with the purchase.

The Wymas thereupon ceased making payments to the Kauffmans on the note, and soon thereafter the Wymas filed a four-count petition against the Kauffmans, Michael C. Freeman, trustee of the deed of trust securing the note, and the Missouri Highway and Transportation Commission (“the Commission”). Counts I, III and IV sought sundry relief against the Kauff-mans and Freeman including (1) an injunction forbidding foreclosure of the deed of trust, (2) a decree rescinding the Wymas’ purchase of the property from the Kauff-mans, (3) a judgment in replevin regarding certain personalty allegedly removed from the Motel by the Kauffmans after the dispute arose, and (4) actual and punitive damages.

Count II sought relief against the Commission, alone, and was the only count in which relief was sought against the Commission. Count II prayed for judgment barring the Commission “from bringing any actions setting up or asserting any interest or rights in that part of the apparent right-of-way where the [Motel] is now located or from interferring [sic] with the free uses thereof and enjoining and prohibiting [the Commission] from interferring [sic] with the uses of said improvements.”

The Commission filed a counterclaim against the Wymas, alleging that the Wy-mas were maintaining an obstruction on, and exercising domain over, the right-of-way of Highway 54. The counterclaim prayed that the Wymas be ordered to remove the obstruction and that they be enjoined from further maintaining it upon the right-of-way. '■

On December 1, 1982,' the trial court, sitting without a jury, tried Count II of the petition together with the Commission’s counterclaim, having severed them from the other issues for purpose of trial. By that time, the Wymas’ marriage had been dissolved; the decree of dissolution awarded each an undivided one-half interest in the property. Grace, by virtue of a new marriage, had become Grace D. Stevens.

The evidence showed that Highway 54, at the Motel site, is a two-lane paved highway. The one-story Motel is curved like a boomerang because of a bluff extending sharply upward immediately behind it. A survey by Ronald A. Lynch, a registered land surveyor, revealed that the part of the Motel nearest the pavement is 46.5 feet from the center line, which, according to our calculations, leaves approximately 35 feet of unpaved berm between the south edge of the pavement and the nearest part of the Motel. The right-of-way extends 85 feet outward from the center of the pavement. Consequently, at the point of greatest encroachment, the Motel intrudes the right-of-way approximately 38.5 feet. About half the Motel lies on the right-of-way.

The trial court entered judgment January 7, 1983, finding the issues in favor of the Commission on Count II of the petition and also in favor of the Commission on its counterclaim. Albert J. Wyma and Grace D. Stevens were “enjoined from maintaining a motel or any other building upon the right-of-way of Route 54 in Hickory County,” and were further ordered to remove, within a reasonable time, “any such portion of the motel located upon the right-of-way.” The judgment was designated final for purpose of appeal. Rule 81.06, Missouri Rules of Civil Procedure (14th ed. 1983).

Albert and Grace appealed, but their appeal was dismissed because it could not be ascertained from the judgment exactly what part of the Motel encroached on the right-of-way. As a consequence, there was no way to identify the portion of the Motel that the trial court had ordered removed. Wyma v. Kauffman, 665 S.W.2d 82 (Mo.App.1984).

Thereafter, under date of April 25, 1984, the trial court filed new findings of fact, conclusions of law, and judgment on Count II of the petition and the Commission’s counterclaim. By then, Albert J. Wyma had died, and the personal representative of his estate, Barbara Van Kampen, had been substituted for him in this action. The new judgment was to the same effect as the earlier one except that it incorporated the plat of the Lynch survey, thereby enabling the parties to identify with precision the part of the Motel encroaching on the right-of-way.

Ms. Van Kampen, in her representative capacity, and Grace D. Stevens appeal from that judgment. They are herein referred to collectively as “appellants.” In discussing events that occurred prior to the death of Albert J. Wyma, we refer to him and Grace D. Stevens collectively as “the Wy-mas.” The land the Wymas purchased from the Kauffmans in 1979 is designated “the deeded tract.”

The right-of-way for Highway 54, where it abuts the deeded tract, was acquired by the Commission in a condemnation suit filed in 1937 in the Circuit Court of Hickory County.

In 1954 the deeded tract was owned by Lloyd D. “Doc” Weaver and his wife, Wilma. At that time, the Motel had not yet been built, but the Weavers had plans to build it. Highway 54, at the site in issue, was situated in 1954 exactly as it is now.

How the Motel came to be built where it sits is revealed in the following findings of fact by the trial court:

“18. Said land [the deeded tract] consisted mostly of bluff, which was required to be bulldozed in order to have adequate room for the construction of the motel.
19. Lloyd Weaver contacted Howard Lackey, maintenance foreman for the Commission, and requested assistance in obtaining a driveway permit and attempting to determine the location of the right-of-way line.
21. According to Lloyd Weaver, Howard Lackey came to the motel site, measured 60 feet from Route 54’s centerline as the right-of-way line and staked that line.
22. According to Lloyd Weaver, the line staked by Howard Lackey was approximately a foot or so different from where Weaver had believed the line to be.
23. Lloyd Weaver stated he built the motel south of the stakes designating the right-of-way line.”

Count II of the Wymas’ petition alleged that the Weavers — the Wymas’ predecessors in title — relied on Lackey’s representation as to the right-of-way line in deciding where to build the Motel, and that when the Wymas bought the deeded tract in 1979 they were unaware of the encroachment. Therefore, pleaded the Wymas, the Commission should be estopped from asserting that the right-of-way line is anyplace other than where Lackey staked it in 1954.

The trial court rejected that theory, ruling that the Wymas failed to prove one element of equitable estoppel, i.e., they failed to prove the Weavers relied in good faith on Lackey’s representation as to the location of the right-of-way. The trial court stated that a party relying on an estoppel must lack knowledge and also lack the means to ascertain the truth as to the facts and must exercise reasonable diligence to acquire knowledge of the real facts. The trial court noted that at the time the Motel was built, the petition in the right-of-way condemnation suit was on record in the office of the Circuit Clerk of Hickory County and a set of highway plans showing the right-of-way for Highway 54 was on file in the office of the County Clerk of Hickory County. The trial court evidently concluded from this that the Weavers had constructive notice of the location of the right-of-way or the means to determine its location and were therefore not entitled to rely on the line staked by Lackey.

Having based its decision on that analysis, the trial court did not reach the issue whether, had the Weavers been entitled to rely on Lackey’s representation, the Commission would be estopped to assert the true location of the right-of-way. The trial court’s finding that proof of one element of estoppel was lacking made it unnecessary to decide whether estoppel could lie against the Commission in the circumstances here.

Appellants, in a scholarly and comprehensive brief, assert, as assignment of error number 5, that the trial court erred in ruling that the Wymas failed to prove the “good faith reliance” element of equitable estoppel. In support of that contention, appellants point to the following evidence.

“Doc” Weaver testified that when he and his wife bought the deeded tract early in 1954, the bluff “come pretty near out to the highway,” and he realized he would have to “blow the bluff off” a sufficient distance back from the right-of-way to erect the Motel.

In order to determine how much of the bluff to remove, Weaver “had Mr. Lackey down there, and he showed us where the state property went to, and we figured how wide the motel would be, and we just blowed it off until we could build enough back.” Asked how Lackey determined the location of the right-of-way line, Weaver testified, “[H]e come out and measured— staked it off.”

Weaver’s testimony continued:

“Q. ... He put stakes up?
A. He put a couple of stakes right in there.
Q. Okay. And that’s what you relied upon for building—
A. That’s what we went by.”

On cross-examination:

“Q. ... Now you said [Lackey] measured it; what did he use to measure it with?
A. He just used a metal steel tape.
Q. Okay. Did you ever see any surveying equipment out there?
A. No. They never used none there at that time.
Q. And Mr. Lackey was the only employee of the Highway Department you’re saying who made any representations to you regarding this right-of-way; isn’t that right?
A. That’s right. Howard was the only one.
Q. ... Did you call Mr. Lackey initially, or did he contact you?
A. When the — on—
Q. The first contact about this motel property?
A. Oh, no, we called him.
Q. You called him and asked him to come out?
A. Yeah.
Q. Okay. Is that correct?
A. Oh, we definitely had to call him then.
Q. Okay. And you stated to your recollection he had told you there was a 60-foot right of way?
A. I’m sure. Some of them said it was 50, but I think he said 60 because I was there when he measured it off.
Q. Okay. And you’re saying he measured from the center line?
A. The center line up there where I told you he measured it to.
Q. Okay.
A. He measured it two places there.”

As the trial court noted, Lackey’s position with the Commission in 1954 was “maintenance foreman.” Regarding Lackey’s duties and authority, the trial court found:

“20. No job specifications exist for a Maintenance Foreman as that position existed in 1954, but the job is most similar to the present job title of Maintenance Area Supervisor. Based upon the job specifications for such a Maintenance Area Supervisor and the similarity between the two positions, the Court finds that a Maintenance Foreman was authorized by the highway Commission to inspect permit work in progress, resolve problems involving the highway, explain policies of the Highway Commission to the public, and investigate right-of-way encroachments.”

Personnel records of the Commission show that Lackey was neither an engineer nor a surveyor.

In addition to “Doc” Weaver, two other witnesses testified about Lackey’s marking of the right-of-way line.

Ralph Troxel, who in 1954 did “dozer work,” was hired by Weaver to “level off the place back of the right-of-way, to build a motel.” Asked how he knew how much of the bluff to “bulldoze,” Troxel explained, “We had Lackey or the engineer, whatever, come out there and measure it off, put flags there.” Troxel added, “He went out the center line of the road and measured back in two different spots.” Asked how the measuring was done, Troxel replied, “Tape, I remember.”

Ozzie Bernell McVay, hired by Weaver to aid in construction of the Motel, assisted in drawing the plans and “did most of the plumbing” and “some of the other work.” McVay recalled that before construction commenced, three, four or five men in “highway trucks” came to the site and “set up their instruments and measured the— and set stakes or the boundary markers on it.” McVay, who was acquainted with Lackey, testified that Lackey was not the person who placed the stakes. McVay corroborated Weaver and Troxel about having to remove part of the bluff to make room for the Motel. McVay testified the Motel was built south and east of the stakes.

According to “Doc” Weaver, construction of the Motel began in April or May, 1954. In an application dated June 10, 1954, Weaver requested permission from the Commission to construct a driveway on the shoulder from the south edge of Highway 54 to the Motel. The application was accompanied by a $50 deposit. The Commission issued the permit June 15, 1954. Weaver testified that after the driveway was constructed and inspected, the Commission returned his $50 deposit.

The Commission’s district engineer testified that any owner of property abutting highway right-of-way who desires to construct a driveway across the right-of-way from the edge of a highway to his property line is required to go through this procedure. The property owner’s deposit is refunded if he constructs the driveway in accordance with the permit.

Emphasizing that nothing regarding the 1937 condemnation suit was filed in the office of the Recorder of Deeds of Hickory County, appellants argue that the evidence establishes as a matter of law that the Weavers acted reasonably and in good faith in relying on Lackey’s representation as to the location of the right-of-way line and that the Weavers were justified in so relying. Appellants assert that the trial court erred in ruling to the contrary. Implicit in appellants’ hypothesis is the assumption that if the Commission, on this evidence, would have been estopped to assert the true location of the right-of-way against the Weavers, the Commission should likewise be estopped to assert it against appellants, as they are successors in interest to the Weavers.

“Equitable estoppel” or “estop-pel in pais” is that condition in which justice forbids that one speak the truth in his own behalf. Peerless Supply Co. v. Industrial Plumbing & Heating Co., 460 S.W.2d 651, 665[13] (Mo.1970). It stands simply on a rule of law which forecloses one from denying his own expressed or implied admission which has in good faith and in pursuance of its purpose been accepted and acted upon by another. Id. at 665[14]. To constitute estoppel in pais, three things must occur: first, an admission, statement or act inconsistent with a claim afterwards asserted and sued upon; second, action by the other party on the faith of such admission, statement or act; and third, injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement or act. Id. at 665 — 66[15].

The party asserting an estoppel bears the burden of proving it. Medical West Building Corp. v. E.L. Zoernig & Co., 414 S.W.2d 287, 293-94[5] (Mo.1967); Emery v. Brown Shoe Co., 287 S.W.2d 761, 767[4] (Mo.1956). Every fact essential to create it must be established by clear and satisfactory evidence. Peerless Supply Co., 460 S.W.2d at 666[17]; Kind, 409 S.W.2d at 257[2].

One cannot set up another’s act or conduct as the ground of an estoppel unless the one claiming it be misled or deceived by such act or conduct, nor can he set it up where he knew or had the same means of knowledge as the other as to the truth. Land Clearance for Redevelopment Authority of Kansas City v. Dunn, 416 S.W.2d 948, 951[1] (Mo.1967); Lytle v. Page, 591 S.W.2d 421, 424[3] (Mo.App.1979).

Applying these principles to the evidence heretofore discussed, we observe that the trial court was evidently persuaded that no survey was made by employees of the Commission in 1954 when “Doc” Weaver asked Lackey to locate the right-of-way line. Although McVay testified that Commission personnel “set up the tripods out in the center of the road,” the trial court obviously found Weaver’s and Troxel’s testimony that Lackey merely measured from the center of Highway 54 with a tape more persuasive. This conflict in the testimony was for the trial court to resolve, Trenton Trust Co. v. Western Surety Co., 599 S.W.2d 481, 483[3] (Mo. banc 1980), the trial court having leave to believe all, part or none of the testimony of any witness. Id. at 483[4].

Appellants’ point 5 thus distills to whether thé trial court erred in holding that the Weavers were not entitled to assume that the right-of-way line lay where Lackey’s measurements indicated.

In considering the question, we are mindful that the description of the deeded tract in the conveyances whereby the Weavers acquired it begins on the south right-of-way line of Highway 54. The Weavers therefore had reason to know (and “Doc” obviously did) that the location of the right-of-way line was essential to identify where their land lay.

It is also noteworthy that “Doc,” by his own admission, “didn’t figure” Lackey was an engineer or a surveyor.

Added to this is the fact that the Weavers had the means at hand to ascertain the location of their boundaries. Prior to trial, surveyor Lynch, using the description of the deeded tract and a set of the plans for Highway 54, located the right-of-way line at the Motel site, and his survey was accepted as correct by the trial court.

We realize, of course, that it is unrealistic to say the Weavers should have searched the Hickory County Courthouse in 1954 to locate the record of the 1937 right-of-way condemnation suit or the Highway 54 plans. Even had the Weavers found them, there is no showing that the Weavers themselves had the expertise to determine therefrom where the right-of-way line lay.

It is clear, however, that before they built the Motel, the Weavers, by the simple expedient of a survey utilizing data readily obtainable by a surveyor, could have made certain where their northern boundary lay and thereby have avoided the encroachment.

We do not quarrel with appellants’ contention that “Doc” Weaver, in asking Lackey to locate the right-of-way line, did what many, if not most, people would have done. That, however, does not supply the basis for an equitable estoppel. It is essential that the party claiming the estoppel lack knowledge and lack the means of knowledge of the truth as to the facts in question. Board of Education of City of St. Louis v. St. Louis County, 347 Mo. 1014, 149 S.W.2d 878, 880[2] (1941).

We therefore hold that the trial court did not err in ruling that the Wymas failed to prove that the Weavers’ reliance on Lackey’s marking of the right-of-way line was justified.

In so holding, we do not overlook appellants’ argument that the Commission had a superior means of knowledge as to the location of the right-of-way. That may be true insofar as the Commission would have found it easier than the Weavers to locate the records of the 1937 condemnation suit and the plans for Highway 54. From those sources, however, there is no reason why a surveyor for the Weavers could not have determined the right-of-way line as easily and accurately as a surveyor for the Commission. Indeed, at trial the Commission presented a plat of a survey by a surveyor employed by it, but the trial court adopted the Lynch survey (made at the behest of the Wymas) in its judgment. We consequently find appellants’ argument unpersuasive.

We have likewise not ignored the evidence regarding the driveway permit. We fail to see how that bears on the issue of the Weavers’ right to rely. The permit was issued weeks after construction commenced, so it obviously was no factor in the Weavers’ decision as to where to locate the Motel. According to “Doc” Weaver, construction of the driveway began only about six weeks before the Motel was finished.

We therefore reject the assignment of error in appellants’ point 5.

Though our denial of point 5 is not based on the ground that the Weavers were bound as a matter of law to know the location of the right-of-way, the Supreme Court of Missouri has so indicated in a case involving a city street. Wright v. City of Doniphan, 169 Mo. 601, 70 S.W. 146, 149 (1902). That rule, if applied here, would, of course, defeat estoppel.

Having upheld the trial court’s determination that the evidence failed to establish an estoppel in favor of the Weavers against the Commission, we do not reach the issue whether appellants, as successors in interest to the Weavers, could claim the benefit of such an estoppel. See, however, Dee v. Nachbar, 207 Mo. 680, 106 S.W. 35, 40 (1907).

What we have thus far said disposes of appellants’ remaining points, five in all. Those points variously assert that the trial court erred in failing to make a finding that Lackey was generally recognized as the "person to call” in 1954 when a citizen in Hickory County had a problem relating to highways, that the action of the Commission’s district engineer in approving the Weavers’ application for the driveway permit was an “implied representation” of the location of the right-of-way line and constituted a ratification of Lackey’s markings, that the trial court wrongly concluded that no agent or employee of the Commission is authorized to erroneously represent the State’s ownership of land and bind the State thereto, that the trial court erred in finding that the Commission has tentative plans to utilize the right-of-way where the Motel sits in replacing the bridge west of the Motel, and that the trial court erred in failing to apply the doctrine of equitable estoppel against the Commission when all elements thereof had been established.

None of these contentions affect our decision upholding the trial court’s ruling that the Wymas failed to prove that the Weavers were entitled to rely on Lackey’s representation regarding the right-of-way line, an essential element of equitable estoppel. Appellants do not contend that Lackey was authorized to relocate the right-of-way or give away the Commission’s land. Moreover, appellants, with commendable candor, concede in their brief that rejection of their point 5 virtually compels affirmance of the judgment.

For these reasons, it is unnecessary for us to extend this opinion by further reference to the remaining points. They are denied and the judgment is affirmed.

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

      . According to the Wymas' abstract, after the Weavers built the Motel the deeded tract changed ownership four times before the Wy-mas bought it.

      . Kind v. Staton, 409 S.W.2d 253, 257[3] (Mo.App.1966), explains there are four methods by which estoppel may arise. Three (estoppel by record, by deed, and by contract) are not present here. Only the fourth, “equitable estop-pel," which arises by misrepresentation, is of possible application.

      . According to the abstract, the Weavers acquired the deeded tract in two segments, from different grantors.


text:
    Bobby Lee MOORE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 13860.
    Missouri Court of Appeals, Southern District, Division Three.
    Feb. 7, 1985.

      John W. Nichols, Kennett, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Mary Elise Burnett, Asst. Atty. Gen., Jefferson City, for respondent.
   GREENE, Judge.

Rule 27.26 proceeding. In his amended motion to vacate sentence and set aside guilty pleas, movant, Bobby Lee Moore, alleged that on March 1, 1983, he entered guilty pleas on two separate charges of first degree robbery, and was sentenced to ten years’ imprisonment for each offense, with the sentences to run consecutively. Moore contended that the guilty pleas were not “voluntarily and understanding^” made, for the reason that before the pleas were entered, his attorney 1) did not advise him of the elements of the crimes charged and that the state would have to prove every element in order to convict him, 2) did not advise him what evidence the prosecution had and what were the relative strengths and weaknesses of the state’s case, 3) failed to advise him on the possibility of suppressing identification evidence and of severing the cases for trial, 4) told Moore that if he did not plead guilty and insisted on a trial, he would be severely punished by receiving three life sentences if convicted, 5) told Moore to lie at the guilty plea hearing and say he did the acts charged in the two robbery informations when, in fact, he did not, and 6) told Moore all he could do for him was to plead him guilty.

The motion also alleged that the guilty pleas were taken in violation of the Missouri Rules of Criminal Procedure because 1) Moore was not given a copy of the robbery informations before he was required to plead to them, in violation of Rule 24.01, and 2) the trial court did not personally inform him of the matters required by Rule 24.02(b) which are that the trial court, before accepting a plea, personally advise a defendant of the nature of the charge, the minimum and maximum penalties, that he has a right to plead not guilty, a right to a jury trial, the right to assistance of counsel, the right to confront and cross-examine witnesses against him, the right not to be compelled to incriminate himself, and that by pleading guilty, he waives his right to trial.

The prosecuting attorney then filed a motion to dismiss the 27.26 proceeding, without evidentiary hearing, alleging that Moore had not stated any facts entitling him to relief, that his allegations were conclusively refuted by the record, that there was no issue of any material fact created by the motion’s allegations, and that even if it were assumed that the motion’s allegations were true, Moore had failed to allege or show how he was prejudiced thereby.

The motion to dismiss was sustained, with the motion court opining that Moore’s motion to vacate the guilty pleas did not allege sufficient facts to warrant the sustaining of such motion, and did not state facts sufficient to indicate the violation of any of Moore’s constitutional rights. No evidence was heard before the motion court sustained the state’s motion to dismiss.

On appeal, Moore contends the motion court erred in sustaining the motion to dismiss without an evidentiary hearing. If a motion to vacate sentence and set aside a guilty plea alleges facts which, if true, would entitle movant to relief, and those alleged facts are not conclusively refuted by the record, an evidentiary hearing is required. Jarvis v. State, 645 S.W.2d 141, 142 (Mo.App.1982); Rule 27.26(e).

We have carefully reviewed the record, including the transcript of the guilty plea proceedings to determine whether those documents conclusively refute those allegations of fact. In our opinion, they do not. Of particular concern to us are the allegations that trial counsel threatened Moore with three life sentences if he did not plead guilty, and told him to lie when he got to court, presumably as to whether he was guilty of the charges. The only things in the plea session transcript remotely connected with these issues are as follows:

THE COURT: Are you fully satisfied with the services of Mr. Coleman?
DEFENDANT: Well, yeah.
THE COURT: Has he done everything you asked him to do?
DEFENDANT: Well, uh — Well, I plead guilty.
THE COURT: Well, are you satisfied with his services? Do you think he’s done everything—
DEFENDANT: Well, I must be satisfied if I plead guilty.
THE COURT: Well, just answer that you are then. You are satisfied. He’s done—
DEFENDANT: Yes—
THE COURT: —everything you’ve asked him to do.
DEFENDANT: —I’m satisfied.
THE COURT: Has anyone forced you or threatened you or promised you anything, other than plea-bargaining, in order to cause you to enter a plea of guilty here today?
DEFENDANT: No one has promised me, but it was more of a bargain that I consider.
THE COURT: Well, there was plea-bargaining made.
DEFENDANT: Right.
THE COURT: Mr. Hazel, this plea-bargain, will you please explain it?
MR. HAZEL: Your Honor, our bargain is if Mr. Moore enters a plea of guilty on both of these charges, Robbery in the First Degree, and, of course, by entering pleas admits robbing both of these individuals, the State will recommend ten years in the Department of Corrections on each case to run consecutively for a total of twenty years.
THE COURT: That was the plea-bargain agreement?
DEFENDANT: Yeah.

These questions and answers do not conclusively refute the alleged facts in question. Since an evidentiary hearing was mandated, it was error for the motion court to sustain the state’s motion to dismiss without evidentiary hearing.

The judgment of the motion court is reversed and the cause is remanded for an evidentiary hearing on all issues of fact raised in movant’s amended motion.

CROW, P.J., and TITUS and FLANI-GAN, JJ., concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R.